Should A Court Allow A Case To Disappear Entirely Because The Person Regrets Filing It?
from the public-records dept
We write about lots of nutty court cases around here, and semi-frequently, parties engaged in those lawsuits aren't always happy about our coverage. Not too long ago, we received a series of emails and phone calls and more from an individual who was involved in some lawsuits that we covered. Without providing too many details at all, the individual in question made a pretty straightforward case that he or she absolutely regretted filing the lawsuits, and provided some additional information about why it had happened, while also noting that the Google searches on this person's name were now linking to the few news stories that covered the lawsuit, including the court documents that we had posted. It was explained that these search results were making life difficult for this person who was trying to get his or her life back on track and believed that Google searches on the name were making it harder to find a job.The story was compelling, and we were asked to remove our post as well as the links to the documents, something that we won't do. However, there was one intriguing bit to the communication, telling us that the court in question had "sealed the case" and asking us to respect that decision. That seemed odd to us. We've certainly seen filings sealed. And even some instances where almost all of the details in a docket were done under seal, but the case would still exist. Usually, though, those were cases involving at least a semi-plausible claim of national security. This was a case where someone just regretted filing questionable lawsuits (for a good reason). Even more amazing, after searching through PACER, it appeared that the judge in question did not just seal documents in the case, but made the entire case disappear. This happened for at least three cases. They do not exist in the court's electronic records system at all. It is as if the cases never happened at all.
This is not how the system is supposed to work. Public records are public records.
Through a lawyer, we reached out to the court directly to see if we could understand the decision to disappear the cases. An initial response was that it was done under local court rules. But when it was pointed out that the rules only allow for the sealing of certain documents, not the existence of the entire case, the court told us that it would answer no further questions because of the sealed nature of the case.
At this point, I'm somewhat stymied. Again, the individual in question has made a very credible case that the existence of these records is making it difficult for the person to move forward in life, and they truly regret the filings. They also have presented credible reasons for why the decision was made to file the cases in the first place. I honestly have no wish to further trouble this individual. I also will not delete our original post or the documents in question, because that, too, feels wrong. But we will not tell you who it is, and if you try to guess, you're probably wrong.
But... I'm still quite concerned about a court totally disappearing public records. I know of the three specific cases involving this one individual that have disappeared from the docket. But I have no idea if this is a standard practice of the court, and if it's made other cases disappear as well, without any public notice or explanation. The court says that it waited two weeks before sealing the dockets, in case anyone objected, but we had no way to know that this was even a possibility since it involved cases from a while back that we no longer follow. Some have suggested that we could go to court over this -- and there is precedent supporting our position, such as Company Doe v. Public Citizen. But, at least that case felt like one worth fighting for. I have little interest in dragging this particular individual back through a court process.
But, at the same time, I'm quite concerned about the idea that courts may be magically making dockets disappear, and know of no way to find out how often this practice is happening. Thus, I'm posting this, in part, to see what our readers think, and if there are other options out there on how to deal with these kinds of situations. I recognize that some will argue that we should reveal the specifics here, and that whoever filed the cases should live with that decision. And I'm sympathetic to that argument, but there are times when other arguments can make sense as well. So for this post, we will not be sharing that info. If we come across other such cases where the details are different, the calculus may be different as well.
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Filed Under: dockets, pacer, public records, sealed cases
Reader Comments
The First Word
“Hard cases make bad law
This is a hard case. You feel the plaintiff here is sympathetic (and I'll have to take your word on that), and in this particular instance you seem to have no appetite for dragging the plaintiff in question back into the open.But hard cases make bad law. We cannot expect every "disappeared" case to involve a sympathetic plaintiff. Imagine if the likes of Malibu or Prenda were allowed to disappear old cases from court history. And we cannot know, presently, if cases have been completely removed from public view.
This cannot be allowed to stand. It sucks for this particular plaintiff, and I'm very sorry that the consequences of their actions may put them in more difficulty than we feel they deserve. (Karma can be a real bitch that way.) But we absolutely cannot allow courts to disappear cases from public view. It would threaten (or further destroy) our trust in an open and fair rule of law. Once you disappear one case, what stops you from doing so for other reasons?
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Re: disappearing judicial cases
What about being contacted by defendants (like me) who were all set to be plaintiffs against a judicially-linked gang whose fiscal crimes would have been exposed as an indirect outcome of my complaint. However this complaint against them was pre-empted by such a dirty complaint and procedure against me, that the whole case against me now seems to have disappeared. Even the official investigations of my complaints against judicial police conduct during the case appear never to have taken place in reality, although there was the clear written pretence during the case against me that they had taken place ! Ten consecutive defence lawyers were “nobbled” not to defend me as required, so as not to uncover this status during the procedure.
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Internet Archive to the rescue!
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Hard cases make bad law
But hard cases make bad law. We cannot expect every "disappeared" case to involve a sympathetic plaintiff. Imagine if the likes of Malibu or Prenda were allowed to disappear old cases from court history. And we cannot know, presently, if cases have been completely removed from public view.
This cannot be allowed to stand. It sucks for this particular plaintiff, and I'm very sorry that the consequences of their actions may put them in more difficulty than we feel they deserve. (Karma can be a real bitch that way.) But we absolutely cannot allow courts to disappear cases from public view. It would threaten (or further destroy) our trust in an open and fair rule of law. Once you disappear one case, what stops you from doing so for other reasons?
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Re: Hard cases make bad law
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Re: Hard cases make bad law
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Re: Re: Hard cases make bad law
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A simply public apology and media coverage over it should be the path to take. You can't make people unhear you if you said something mean in the past that you regret so why should we be removing records that are akin to it? Are we planning to make people unhear and unmemorize it too? (Pardon for the neologisms).
I can sympathize with the person. It is unfortunate that our current society has this dreadful tendency of judging you for errors of the past that have been punished as if an individual is static overtime and doesn't change or evolve. Sure there are those types but they will keep erring so there will be a huge trail of errors, not sparse ones. Taking Prenda as an example, they did something wrong and kept insisting in the errors so it's not like they can say they regret something and it's all ok, there's a trail of 'blood' behind them so they would need to actually make an effort to prove they changed.
So summarizing: terrible idea.
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Unreasonable request
Until restitution is paid, I say crack open the case and post a new story.
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Re: Unreasonable request
Translation:
The individual regrets it now that they lost the case and their malice is having an impact on their own life. Would they regret it if they had won? I think not.
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Re: Unreasonable request
Let's just say it goes beyond just "I regret it now." It's not as simple as someone feeling bad about filing some bad cases. There was more to it.
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Re: Re: Unreasonable request
Did the plaintiff pay every penny of the defendant's costs? If not, then I have zero sympathy for the plaintiff.
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Re: Re: Unreasonable request
People are also confusing the court making it disappear (the Government) with a blog doing it out of mercy or something (TD). It's actually fascinating to watch the reactions.
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Re: Unreasonable request
But... they are also not calling attention to which post it was, which case(s) it was.
Even removing an article (or Youtube video, or ...) invokes the Streisand effect, a not insignificant reason to NOT take the article down at this point.
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Re: Unreasonable request
This article twice states they are not complying with the request to remove the old stories.
"Any request by this person to erase their mistakes should only be honored if they have provided restitution to the victim."
Given Mike's extremely low tolerance of requests to delete relevant truthful info, if the circumstances of this case have led him to decide not to further publicize this person (but not remove the story) then I'm prepared to give him the benefit of the doubt.
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Well ain't life a bitch. Sometimes... you just have to live with the poor decisions you have made in life.
Boo fuking hoo.
Seems it is as easy to sway TD as it was to sway the courts. Slippery slope Mike... slippery slope. Why even post this at all? Now you leave yourself open to these kinds of requests in the future.
WhateverboB is going to have a field day with this one. Can't say I'd blame him either.
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Re:
What if it could be argued that it wasn't necessarily this person's "decision," yet they would pay the price for it.
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Re: Re:
Hey I love a good guessing game and I am sure it would not be too hard to find it either. Could start out with a search of PACER on TD, then narrow the field. It's kinda like DRM no? Personally I don't really care to find it but I am sure it would not be too hard.
Either it's newsworthy or it's not.
"So for this post, we will not be sharing that info."
Then why post it at all?
Again, without all the details it's hard to say.
"Thus, I'm posting this, in part, to see what our readers think"
I think the disappearing of court cases is deplorable and we have to ask how far are they willing to go in approving this kind of censorship and for whom does it apply.
Hey maybe there are great reasons this person wanted this to disappear. Given your stance on this kind of behavior I do give you the benefit of doubt and conclude it MUST be one damn good reason. If I were just coming to TD today though...
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Re: Re: Re:
You seem to be confused here.
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Re: Re: Re:
Without the lawsuit, the insurance company refused to pay out on a medical claim.
No idea if that's this case, but it's entirely possible to end up in a situation where you have to initiate a civil action against someone, even a particularly detestable civil action. But, not really have a choice, short of bankrupting youself.
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This seems all kinds of fucked up, but it's not too surprising. Insurance companies can be pretty scummy. I wouldn't be surprised if they require this at times in the hopes the injured party won't be willing to file the lawsuit. After all, that saves the insurance company money.
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Re: Re:
That situation, in itself, makes for a good outrage article topic.
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Re: Re:
Or, worse, this person was a child, and their mother/father did the lawsuit at the time.
The latter, I think, is more likely given your general reaction. We're looking at someone who had some attempt at a horrendous lawsuit done in their name when they were underage.
That is pretty fucked up.
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This sets a bad precedent
Yes, the person might have a good reason to not want a court case to follow him or her, but that's why cases are sealed. Okay, sure, the public records will still show that the case exists, but no one can get to the details.
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Re:
As Ninja said earlier, say sorry and move on. Employers value people who can learn from their mistakes.
No doubt searches of this individual's name will bring up the stories in the various media outlets, as reported in the article. How will Deeply Regretful Honest I. Am get them to vanish, too?
I doubt that making the case itself go away will shift the other references to it.
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Betteridge's law of headlines
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Regret?
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"We'll use the court to bankrupt you and ruin your life, then make all the filings unhappen and we'll not only be completely innocent of that, there won't even be a paper trail connecting us to it.
Fortunarely courts are bastions of integrity and there's *no way* such a thing could happen in real life...
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Let me be clear on this: the person who sent the letter, all intentions for the better, abused the court system twice: the first was filing for selfish reasons and the second was making it disappear.
By refusing to release the name is a nice gesture for the regrettable filing.
By refusing the release the name after finding out the case was removed from public record is a disservice to the public.
Had the person not written Techdirt, would the missing case ever been discovered if Techdirt's journalism hadn't fact checked?
I'll respect Techdirt's decision not to release the name, court, judge(s), and attorneys who violated America's justice system, but realize I'm extremely disappointed by the decision.
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Re:
AND IT guy who wrote about kind of pointless in that you make it hinge on this person is REALLY contrite, blah blah blah, difficult circumstances, blah blah blah, BUT, WE have no idea what those factoids are...
doesn't seem like we should have to remind you that PLENTY of people who get crosswise with the legal system are REALLY contrite, and REALLY regret their actions, blah blah blah...
impossible to determine if this was a reasonable exception on techdirt's part, or just capitulating to the same 1% attitude of 'everyone else but me should have to follow the rules' bullshit...
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Re:
Why? Techdirt has become complicit in protecting a court and its judges from the appropriate public disapproval.
Since we have very little chance of more directly influencing judicial behavior toward the good, it seems to me that cooperating with the bad behavior is itself a bad thing.
I will metaphorically fart in Mike's general direction, if this decision is not reversed at least as to the court, judges, and case number.
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Re: Re:
If that was Mike's objective he wouldn't have written this article at all. He would have instead just kept quiet about it.
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Re:
Secret courts are an obvious evil. For the same reason, secret cases so qualify; I have one of those pending now and to date the court does not appear sympathetic to my views.
What is wrong with it? Well, I agree with the court in R. v. Sussex Justices, 1924 K.B. 256,259 (K.B. 1924) that it is not enough for justice to be done, it must also be seen to be done. And if it is not seen, you can be fairly confident that ultimately it will not be done, for as Justice Brandeis said, ``Sunlight is the best disinfectant, electric light the most efficient policeman.''
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Re:
There should be neither.
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A nightly update of this index and an occasional sync of old items would allow one to determine when cases have "disappeared."
As an IT guy I can say that technically this wouldn't be that hard. The limiting factors center around allowed usage of the data from these systems.
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Re:
However, this cannot stand. Now that this is happening, we need to work around it. I'm a developer and IT guy too, we can't let judges get away with it. Removing cases from PACER is insane.
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If they have done it for this guy, they have done it before
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Cases should not disappear, but could include an apology
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Welcome to the 12st Century
It used to be that the past was buried so deep that you had to have a deep interest or deep pockets to uncover obscure items. Today, every drunken action or hasty post will come back to haunt you, or worse, an innocent 3rd party.
Unfortunately, endowing the internet with the "right to be forgotten" brings up a whole new can of worms - who enforces it, who decides? You claim you think the person should have this right - but we haven't seen the evidence, and based on the stories reported from Europe, the "right to be forgotten" does not always seem to be invoked by the relatively innocent and obscure, but by many who want a reset on embarrassing but telling data.
As for how this ruins their life- well, as others pointed out - you live with the choices you make (Tattoos are a good example). Eventually the world will come to learn that everyone has an embarrassing past and some things, especially older things, are not indicative of current life attitudes.
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If you don't know what this means, you've got other things in life to worry about.
If you do, that is literally all one has to say about this.
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Act in haste and repent at leisure.
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Now Techdirt often writes about Europe's overreach with the right to be forgotten, but there's at least a kernel of truth or permanent mistake magnification with google results these days. If you feel sympathetic to this person, it's totally within your discretion to delist the post from google results. You still keep the content and discussion online, but help the person recover from an acknowledged mistake. It's not a violation of principles to voluntarily exercise a little mercy.
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Re:
There are a lot of other comments suggesting TD has "given in" to requests and I just don't see it here. They've raised the question about PACER but chosen not to give the initial case at this time.
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Re:
In fact, this may be the plan.
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Re: Double Jeopardy
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Re:
Also, I think you're conflating criminal and civil law. "Double jeopardy" is a criminal law concept.
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Nail the court, not the plaintiff
I grasp that TD wants to do the honorable thing, and accommodate the plaintiff as much as possible. [/more opinion]
By similar measure the court had no business - *at all* - allowing the entire case to disappear.
Maybe the correct response here might involve bringing the judge to the bar (of justice, not the other kind) to answer for $REASONS - as for example, prejudice to a party in the case because it was (reading between the lines) ex parte, or violation of local rule, or violation of established law, or controlling precedent. In this manner, you focus on the actions of the court, not the (former) plaintiff.
It's a long shot I know, and I suspect your chances would likely hover between slim and none, but as far as I can tell, even some chance is better than none in a situation like this.
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Unexpected problems of the modern age
We have entered a new era unlike any in history. Cliche, I know, but true. The only previous way that the whole world would know someone did something bad was if you branded them with a hot iron. Now every interaction with the law is instantly available on Google.
I worry that eventually there will be enough people who will vote to restrict public records access. The reason public court records were created was so that governments could not secretly arrest and convict someone without anyone knowing about it. Now, however, it is becoming a weapon to destroy peoples lives. Mistakes made years ago can never be avoided. 21st century branding.
Used to be the concept of "once your sentence is complete you had paid the price and were done" was how things were. Now, whatever mistakes you made are permanent, denying opportunities and making it hard to recover your life.
This is why "Right to be forgotten" laws are becoming popular. I worry that someday there will be enough people who will vote for these laws. There needs to be a middle ground somewhere that can avoid being "branded by Google" without destroying legitimate access to public records.
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Re: Unexpected problems of the modern age
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Re: Re: Unexpected problems of the modern age
There are other ways of handling it, too. Personally, I've been active on the internet for so long -- since before it was open to the public -- that I have plenty of such embarrassing stuff. However, I also maintain multiple online identities so that I can have different identities for different sorts of activities. "John Fenderson" is one such identity.
This doesn't give me anonymity since I've been maintaining these identities consistently for decades, and it wouldn't take more than a day or two to figure out what they all are and what my legal identity is. Nonetheless, it does enhance my privacy in that most people don't care enough to put in the effort.
My children and many of their friends routinely do very similar things, for very similar reasons. The kids today are working this stuff out. It's us old farts that have a problem.
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Re: Re: Re: Unexpected problems of the modern age
With reference to Walt's and Delphi's involvement.
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e.g., it could have gone down like ...
Yet, some commenters claim that the Regretful Plaintiff should pay for his acts regardless of the circumstances.
But ... say this plaintiff went to an attorney, who was a terrible attorney, or an attorney with their own agenda. Say this attorney gave Plaintiff some terrible legal and tactical advice. Say it was all entirely meritless, and the Plaintiff was pushed into this thing by an overeager lawyer who wanted to take on everyone it could remotely attach to the apparent wrong. Say Plaintiff justifiably relied on the terrible advise of his lawyer. Say it all went bad and person left holding the bag and all the bad press was the Plaintiff. A plaintiff who just followed the advise of counsel.
This shit happens. There are lots of terrible attorneys (of course there are lots of good ones too). Should the plaintiff really have to be the patsy for the potential straw-man agenda of his bad lawyer?
That said, this is an extremely troubling development, especially considering there appears to be no practical way to determine the extent of the problem, or legal means used to attain it. Scary stuff, really.
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Re: e.g., it could have gone down like ...
Yes.
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Re: Re: e.g., it could have gone down like ...
So maybe they're only getting what they deserve.
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Open courts & other people have copies, etc.
Other people have copies of the documents: Surely the defendant(s) and their attorneys have copies of the documents.
Newspaper reports: And by this i mean print newspapers. They would be damn hard to suppress.
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Open courts & other people have copies, etc.
Other people have copies of the documents: Surely the defendant(s) and their attorneys have copies of the documents.
Newspaper reports: And by this i mean print newspapers. They would be damn hard to suppress.
Sorry for the anonymous post. TechDirt keeps logging me out unexpectedly.
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Surprised
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Regret in leisure.
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Regret in leisure.
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Missing Cases Cast Shadow on Jail Informants Investigation
The court cases of the informants who secretly worked with the authorities have been removed from the computerized system that tracks them. Not just the case records, but also the case numbers have been removed from the court case index.
This, of course, eliminates the possibility of convicts gathering evidence showing their convictions or sentences were obtained illegally.
I believe there are about a hundred judges in the main courthouse, but there is no way to know which judge issued the secret order to effect this cover up.
Since many/most of the judges had prior positions working for the District Attorney this smacks of corruption, the same sort of thing as the police seizing cellphones and video cam recordings and disappearing them.
Call me disgusted. There oughtta be a law....
http://voiceofoc.org/2015/12/missing-cases-cast-shadow-on-jail-informants-investigation/
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Re: Missing Cases Cast Shadow on Jail Informants Investigation
Cases that have been fully disappeared are not new. The trouble is that there is no transparency advocate to provide oversight. And if there was, there is no way to guarantee that said advocate would not become captured by the system.
Who watches the watchers?
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This should really be fought.
The fact that this was attempted needs to be blown up and fought. I actually do have some empathy towards the individual that you appear to consider deserving. But this behaviour should not be applowed or condoned. And you would be condoning it to have the knowledge, and ability to open a case; but fail to do so.
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That being said, could we prevent cases like this from disappearing in the future by making a nightly record of the cases on a third-party site and occasionally syncing the new records with the old?
This would be very easy to set up, assuming it's legal and the information is easily available to a script.
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Too much absolutism
You'll wind up being a happier person in the long run I think.
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Re: Too much absolutism
Fact is, there is no undo button for life. A mistake can easily be forgiven, even forgotten. Trying to erase records is in no way taking responsibility it is just compounding wrong on top of wrong.
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Re: Re: Too much absolutism
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wait a Minute.......
So it's OK Mike, you can say her name. ;)
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I don't like absolutes
The classic example is the zero tolerance of drugs/weapons policy in schools that cause them to blow misunderstandings and mistakes out of proportion. Or the mandatory sentencing laws that force judges that hand out sentences that don't come close to matching the circumstances of the case.
We have to trust judges. If a judge felt that this case was enough of a mistake that it should not appear in the records, then I feel he needs to have the discretion to purge it.
What should be examined here is the process that is used to purge this case. Was the defendant notified? Was he/she allowed to contest the judge's decision? If all three parties are cool with it, then let them do it.
I think a good balance would be:
(a) Approval of defendants
(b) Automatic review of decision by that judges superiors
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Re: I don't like absolutes
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Leave the page, but mark it 'noindex' for search engines
Much like the situation before the web when it was much harder to find old stuff (no Googling).
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This is about public information
However the reasons that the law give to make these cases public remain the same. What if this case is resurrected? What if someone else is sued for the same "questionable" reasons, do they not have a right to investigate why this case was considered "questionable" . . . . and so on for a thousand different questions
For no other reason, this may be regrettable for him and there may be good reasons not to re-advertise the details in and of itself, but this is now not about the case itself, but that the system has disappeared this case altogether. That it has done so and the reasons it used to do so are most defiantly something to be investigated
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The message from your readers seems clear
I don't understand how you would report on this without providing the details. Reporters should provide enough facts that readers can do their own fact-checking if they feel it necessary. (This is not a national security case)
I have followed this site for many years. You and your writers do a great job of presenting stories and issues in a way that is understandable and you always provide the information I need to do my own follow-up if I suspect any bias.
You may not call yourself a reporter, but to many you are a Journalist. I empathize with your position. You did not ask to be in it. And It seems from your comments that you are really torn. But in a lot of reporting their are sympathetic actors who get the raw deal. It is not a great situation, but you do understand how serious this is. And I think it is obvious what you should do, even though it may be unpleasant.
And I believe you know it also.
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Re: The message from your readers seems clear
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Re: Re: The message from your readers seems clear
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Expungement
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Right of Reply would be better than Right to Be Forgotten
Similarly, Techdirt could allow this guy to post updates and apologies (with Techdirt's editorial endorsement) to Techdirt pages where this guy is mentioned.
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Re: Right of Reply would be better than Right to Be Forgotten
Techdirt already does. Anyone can make a comment, and there have been times in the past when someone attached to the story adds their perspective or rebuttal by doing so. It's pretty effective.
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Re: Re: Right of Reply would be better than Right to Be Forgotten
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Imagine the next level: Making a convicted person's case vanish. Instant "unperson" in the Orwellian sense.
"Secrecy begets tyranny" has never been more true.
If a few cases have been "vanished" how many more are there that simply have left the building?
To me, this is as appalling as though we became a theocracy overnight or decided the Soviet system was a great idea and adapted it.
If this is in one place, how many more jurisdictions and at what levels is is occurring?
This scares me about as much as anything our apparently dying Republic has ever done.
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Only in America
Totalitarian favoritism
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Old but relevant
has there been more recent rulings on the constitutionality of secret dockets. from this article, the 11th and 2nd circuit ruled against them.
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Disappointed in Techdirt
If I have missed something in the reporting of this incident, please let me know, but as it stands it seems Mike is going to leave us hanging.
Told us he knows about this serious issue with our courts/government, but one of the actors got to him with a sob story about how sorry he is, so he's not going to tell. I think this is terrible.
Yes, it is his site. He can do what he wants. Just pointing out that in the future I will have to be more skeptical of this site. How will I know if I am getting the full story, or just some spun one because he got a good "explanation" from someone.
It took a lot of work to build the journalistic reputation this site and Mike had. In my opinion, he threw it away.
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