Court Rejects Plaintiff's Attempt To Seal His Entire Lawsuit Against A Website That Publishes Court Documents

from the burial-failure dept

Eugene Volokh has come across another attempt by a litigant to bury his own court proceedings. This isn't a malicious or underhanded attempt to remove embarrassing info from the court system in order to... say... scrub a client's reputation. This is simply a pro se litigant perhaps misunderstanding what he was getting into when he decided to start filing lawsuits.

As Volokh points out, knowing very little about the court system you're engaging with as your own lawyer tends to result in very strange requests.

Trial courts sometimes do the darndest things, including in cases brought by pro se plaintiffs. While litigating pro se is often a handicap, it's sometimes an advantage: pro se litigants often don't know what's impossible, so they ask for it—and sometimes get it.

In this case, the plaintiff asked for pretty much every public document his lawsuit had created to be sealed. He did this with a letter to the court [PDF] that closes with:

Confidential Notice: This letter and the things contained herein are confidential information and are not to be copied, shared, or distributed by any source.

This letter was (of course) added to the docket and made accessible, just like everything else in his 2017 lawsuit against his former school. The letter asks for the judgment to not be published by the court and the only copies distributed to him and the defendant. He also wanted the defendant to be blocked from publishing the judgment or sharing it "with anyone or website or other conduit."

This was construed as a motion to seal. Volokh spotted it and filed a motion to intervene to argue on behalf of the public's right to access documents created by public courts. The natural course of things -- the generation of documents by courts that then end up on third-party websites -- resulted in a second lawsuit from the same plaintiff. This was filed against Justia, a site that publishes thousands of court documents.

Volokh's intervention is noted by the court, which comes to the conclusion that it probably would have reached anyway. But, as Volokh noted earlier, sometimes trial courts head to left field and grant some really strange stuff to plaintiffs. Hence the outside input meant to steer the court back in the direction of the presumption of openness.

The decision [PDF] here hits all the right notes. Documents filed in public courts are public. Not wanting them to be public is understandable in some cases, but that's not the standard the court uses when dealing with motions to seal. Even for pro se plaintiffs, who are given as much leeway as possible by courts, the standards are higher than can be met by the plaintiff's letter.

The party seeking to seal must provide “legitimate public or private reasons for the documents to be kept from the public” and must identify “a clearly defined and serious injury that would result if the motion is not granted.” Celgene Corp. v. Abrika Pharm., Inc., 2007 WL 1456156 at 5 (D.N.J. May 17, 2007). Plaintiffs request to seal the Appellate Division’s Opinion has numerous deficiencies:

1. He has not filed any affidavit, declaration, certification, or other document along with his request.

2. He has not presented any compelling reason that would justify the Court granting the request.

3. He has not suggested any lesser restrictive measures or why one is not available.

4. He has not set forth a significant reason that would warrant sealing these documents and restricting public access.

5. Plaintiff merely expresses his wish that the order on his motion to dismiss not be “reported, copied, distributed, shared, or by any other means used by anyone or any website.” (ECF No. 26).

6. Plaintiff has failed to establish what adverse consequences would occur, unless sealing has occurred.

On top of this denial, the court also dismisses the lawsuit against Justia. And again, the ruling rests on court system's presumption of openness.

The amended complaint is substantively meritless, as was the original complaint. Plaintiff is essentially attempting to seal the Appellate Division’s Opinion, which — like federal court documents — are open to the public. N.J. Ct. R. 1:38-1. There is a heightened public interest in disclosure of materials that are filed within the Courts, which outweighs private interests in confidentiality, as the Courts are funded by the public and in general judicial proceedings are not done in secret.

And, finally, the court addresses the claims the plaintiff actually made in his lawsuit against Justia. And they're as creative as they are unsupported.

[T]here is no cognizable legal theory to support the allegations set forth herein. The documents alleged to have been stolen and embezzled are public records with access for the public. In addition, even assuming that the records were not public, there are no allegations to support a claim for theft or embezzlement — the Appellate Division’s Opinion is not Plaintiff's personal property.

Away goes the lawsuit in a brief opinion that's as public as everything else in the case.

I'm sure it sucks for the plaintiff to be shot down again. And in public. (Again.) But that's how the system works. The plaintiff probably should have quit when he was behind -- after his failed attempt to seal documents from his first lawsuit. As courts have pointed out in the past, the best way to keep your name out of court documents is to stop filing lawsuits.

Filed Under: courts, public documents, sealed records, transparency

Surprise: Bill Introduced To Finally Make PACER Free To All

from the nice! dept

So this is somewhat unexpected, but Rep. Doug Collins has introduced HR 6714, a bill to make federal court records free to the public.

H.R. 6714, the Electronic Court Records Reform Act, would guarantee free public access to federal court records through the Public Access to Court Electronic Records (PACER) system, which currently charges the public a fee to access documents. The bill would also require updates to the PACER system, including adding a function to enable all users to search its catalog of court documents easily. Currently, litigants are handicapped because they cannot conduct research through the system.

The bill would further support legal professionals and the general public by consolidating the Case Management/Electronic Case Files (CM/ECF) system. The CM/ECF system was designed to increase efficiency for all stakeholders within the judicial system, but it is compartmentalized among different courts. This makes locating records and filing documents difficult and inefficient. The Electronic Court Records Reform Act would unify these disconnected systems under the Administrative Office of the U.S. Courts in order to ensure uniform access to all federal litigants.

This would be... amazing. We've spent years highlighting the massive problems with PACER, the federal court system that charges insane amounts for basically everything you do, just to access public records, and which functions very much like it was designed around 1995. There are a few court cases arguing that PACER fees are illegal and a recent ruling in one of those cases agreed. As we noted at the time, that was hardly the final word on the matter. A bill like the ones Collins introduced would be an amazing leap forward in giving public access to court documents.

Unfortunately, it's unclear if the bill has any support beyond Collins, but this is the kind of thing you would hope that Congress could get behind.

Filed Under: access to information, doug collins, fees, pacer, public documents, us court system

Federal Circuit Agrees To Speed Up Publication Of Court Documents After EFF Complaint

from the broadband-world,-dial-up-court-system dept

A small but significant win for transparency has been obtained by the EFF. As we're all well aware, the federal courts often seem to be at odds with the First Amendment they're supposed to be upholding by allowing plaintiffs -- especially the government -- to seal filings, if not entire dockets, with alarming regularity.

Lots of these are tied to the government's law enforcement work. But some of it has to do with disputes over intellectual property the public already has access to. Patent cases see an inordinate amount of document sealing, taking a lot of the "public" out of "public court system." There's a presumption of openness that's supposed to apply across the board. The government gets around this by making claims about national security or law enforcement means/methods. But in patent cases -- where the underlying patents are already accessible to the public via the USPTO's website -- the Patent Trial and Appeal Board's (PTAB) frequently allows filings to be sealed.

Making things even more opaque (if only temporarily), the Federal Circuit (which presides over the PTAB) has been delaying the public release of documents for several days, despite all courts relying heavily on an electronic filing system. This isn't just a problem for members of the public who expect filings to appear in a timely fashion. It's also a problem for litigants, as the EFF points out:

The court’s current practice is to docket briefs as “tendered” when they are first filed and to disable public access until the briefs are accepted by the Clerk’s Office. This sometimes leads to briefs being withheld from the public for more than a week.

While this may not seem like a big deal, the public’s right of access to courts includes a right to timely access. The delays at the Federal Circuit mean that briefs sometimes don’t become available until after supporting amicus briefs are due. Amici are encouraged not to duplicate party briefs, but that’s a challenge if they can’t read the party briefs in time.

The EFF sent a letter to the Federal Circuit, informing it that this system that didn't do any favors for the public it's supposed to serve. It never received a direct answer, but it appears the Federal Circuit did listen to the EFF. A policy change that took effect at the beginning of August removes the bizarre waiting period between filings and their accessibility via the Federal Circuit's site.

Earlier this month, the Federal Circuit announced a new compliance review policy. While that new policy [PDF] doesn’t specifically mention the practice of withholding briefs as “tendered,” we have confirmed with the Clerk’s Office that briefs are now available on PACER as soon as they are filed. Our review of recent dockets also suggests that briefs are now available to the public right away.

This fix follows on the heels of the other fixes by the Federal Circuit which force litigants to respect the presumption of openness. The Federal Circuit's bar for sealing documents is likely the strictest in the federal court system: litigants have to file a separate motion if they want to seal more than 15 words in any filing, much less the filing itself. Hopefully, other federal courts will follow this lead and force litigants to show their work if they're seeking to render a presumptively transparent process opaque.

Filed Under: cafc, court records, federal circuit, public documents, transparency
Companies: eff

Police Drop Charges Filed Against 19-Year-Old Who Downloaded Public Documents From Gov't FOI Portal

from the access-not-specifically-authorized-is-not-'unauthorized-access' dept

Last month, we covered the incredible case of an unnamed 19-year-old who was facing criminal charges for downloading publicly-available documents from a government Freedom of Information portal. The teen had written a script to fetch all available documents from the Nova Scotia's government FOI site -- a script that did nothing more than increment digits at the end of the URL to find everything that had been uploaded by the government.

The government screwed up. It uploaded documents to the publicly-accessible server that hadn't been redacted yet. It was a very small percentage of the total haul -- 250 of the 7,000 docs obtained -- but the government made a very big deal out of it after discovering they had been accessed.

The government complained to the police and had the downloader hauled in to face unauthorized access charges, claiming he had "exploited a vulnerability" to obtain unredacted files. But no exploit was used. It was the government that left unredacted documents in a publicly-accessible space. Nevertheless, the teen's home was raided, his family accosted, and several electronic devices seized -- including those of family members. The 19-year-old's younger brother was even detained by officers while walking to school.

Government officials claimed the teen "stole" documents, and pushed for criminal charges which could have resulted in a ten-year sentence for downloading documents from a government portal designed to facilitate the downloading of documents.

Fortunately, Nova Scotia law enforcement has decided there's nothing to pursue in this case.

In an email to CBC News, Halifax police Supt. Jim Perrin did not mention what kind of information police were given from the province, but he said it was a "high-profile case that potentially impacted many Nova Scotians."

"As the investigation evolved, we have determined that the 19-year-old who was arrested on April 11 did not have intent to commit a criminal offence by accessing the information," Perrin said in the email.

The "information" the province "handed over" was probably nothing more than the belated recognition that pursuing criminal charges had accomplished nothing more than exposing the government's careless handling of citizens' personal information and its willingness to find a scapegoat to burden with its failure. The government also revealed 11 other IP addresses had accessed the same unredacted documents, which only further solidified the government's complicity in public access to unredacted personal info.

Prosecutors would have struggled to prove intent -- something law enforcement likely recognized shortly after taking up the case. And this would have been a case they couldn't ignore, not with government officials making lots of noise about hacking that never took place and "unauthorized" access that was plainly authorized by their inability or unwillingness to properly secure documents that hadn't been vetted or redacted. It's already suffered a PR black eye. This move to disengage simply reduces the chance of further injury.

Filed Under: canada, foi, foia, public documents, security

Vision Media Apparently Would Prefer No Public Discussion About Its Lawsuit

from the that's-not-how-this-works dept

Last week, we wrote about how Vision Media TV was suing 800notes.com over comments made by users on the way Vision Media TV does business -- a business method that has been criticized in the pages of the NY Times among others. Of course, 800notes has a clear Section 230 defense, but Vision Media is trying to get around that. Our post was based on a post by Paul Alan Levy, from Public Citizen, who is helping 800Notes in its defense. He's also now let us know that Vision Media is upset about his own discussion of the lawsuit and that it has asked the court for an injunction barring Levy from posting documents from the case on his blog or discussing them -- despite the fact that the filings he posted were all public.

Vision Media seems to be claiming that just posting these public documents is defamatory, which seems quite odd. Also odd is that Vision Media claims that all this publicity might hurt Hugh Downs most of all. Downs, the former host of 20/20, apparently works with Vision Media and is part of the enticement to companies in trying to get them to pay to be on a Vision Media video program. But, again, if Vision Media has done nothing wrong, then it's hard to see how a discussion of the lawsuit would harm its own reputation, or that of Downs. Yet, using Downs' name in support of an attempt to silence a blog post would seem more likely to harm Downs' reputation than anything that Levy did in his own post.

Filed Under: defamation, public discussion, public documents
Companies: 800notes, vision media tv