E-Filing and the First Amendment

Our local counsel was confused. He was confused over how press access to court documents works in the e-filing era.

He asked: “What is the difference between a press queue and auto-accept.”

I answered: “With auto-accept the new filing has a case number, and with a press queue it doesn’t.”

That is true. But there is a little more to it.

Almost all federal courts use auto-accept for electronic filing, along with a few state courts. Auto-accept pulls an e-filed document straight into the “case management system” — a fancy word for “docket” — without any work by a human clerk.

While doing that, the software also takes a credit card payment, records the filing date, and assigns a case number. And the press and public can see the new filing right away, as soon as it is received.

A press queue, on the other hand, is the handmaiden of the “clerk review” system used by many state courts.

In the clerk review system, software takes in the new filing and sends the filing lawyer an automated notice of receipt. The software also records the date received which is the filing date.

But a human clerk then runs through an additional set of tasks before pressing the “accept” button, which then generates a case number.

Alongside that clerk review system, an application called a “press queue” can be installed. It allows journalists to see the new filing right away, as soon as it is received, before it gets a case number.

The press queue is a “filtered” queue that filters out non-public filings.

Generally, even where a clerk’s office is functioning at top efficiency, the staff cannot do post-intake processing for more than 2/3 of the new filings on a given day.

And big courts rarely operate at top efficiency, often leaving half or more of the filings for the next court day.

So the press queue compensates for that problem. It is the way that journalists can see the new cases on the day they are filed rather than the next day after the news cycle has passed. 

Such press queues are in place in six state courts in California that together represent half the state’s population —Los Angeles, San Jose, Fresno, Bakersfield and Monterey. The four federal district courts in California give journalists the same on-receipt access through auto-accept systems in some districts and through the equivalent of press queues in other districts.

Although electronic filing is often characterized as a whole new world, it is not. It is the translation of a paper process into an electronic process, following the same basic steps in both mediums.

Where a “runner,” sometimes on a bicycle, delivered paper documents across the clerk’s counter, an “e-file service provider” now delivers pdfs across the virtual counter.

Where a “counter clerk” took in the paper and looked it over for form, software called an “e-file manager” now does the same thing.

Where a “docketing clerk” entered the new case into the docket, a “processing clerk” now puts the new case into the case management system.

The spot where a journalist traditionally reviewed the new filing was in a basket right after it crossed the intake counter. With auto-accept or a press queue, the same is true. The new filing is seen right after it crosses the virtual counter.

That timing was a topic that came up in a recent trial before Judge Henry Coke Morgan Jr. in the Eastern District Virginia where I was questioned under oath by our lawyer, William Hibsher.

A. “There’s a basic commonality to all the paper courts. It’s a two-step process. The first step is the intake process, where the intake clerk receives the new complaint. … Another clerk, the docketing clerk, would come pick up the new complaints the following morning and enter them into a docket.

Q. So at what stage of this two-step process were you and other reporters allowed to see the complaint?

A. Yeah. Right after they crossed the counter.

THE COURT: This is in California?

THE WITNESS: No, Your honor. That’s everywhere. It was in Boston, in New York, in Chicago. In all the cities I mentioned. In Dallas. In Houston. Miami. It was common.

THE COURT: All right.

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More stories and columns on the Virginia trial:

Matter of Choice  *  The Dicta: Guesswork About Press Access  *  Presumption and Fact: The Ask for Access  *  ‘CNS’s View’ Accurately Told  *  Access Solution: The E-Inbox  *  Access Law in the Electronic Age  *   Bread and News  *   Flip Side of Court Tech  *   First Amendment Right to See Court Documents on Day of Filing  *   Tradition of Same-Day Access  *   The News Cycle

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Read the Schaefer trial transcript:  Volume 1   Volume 2   Volume 3   Volume 4

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