Matter of Choice

One could say it’s a matter of choice. Does the press see new filings before or after they are docketed.

And it is a matter of choice.

Because a clerk can provide access upon intake, prior to docketing or what today would be called “post-intake processing.”

And that’s the point.

They can do it. It is practicable.

But they choose, in some state courts, not to.

So is that OK?

If the clerk can provide access to an e-filing on receipt — which is the time and date the document is considered filed — then must the clerk do so.

Or is it within the clerk’s prerogative not to.

And in the e-filing context, that is what remains to be decided by a federal judge and presumably, given the run of these cases, by an appellate panel.

In their own operations, the federal courts have almost all made the choice in favor of giving the press and public access to new electronic filings upon intake, before post-intake processing.

The matter came up in a trial in the Eastern District of Virginia earlier this year. The fabled Eastern District, site of so many famous political and spy trials, had been one of a tiny group of federal district courts that chose not to.

But that changed.

Judge Henry Coke Morgan Jr. is presiding. Courthouse News’ lawyer William Hibsher is conducting a direct examination of the author of this column:

Q. You mentioned that in federal courts you — most federal courts you see filings upon receipt; is that correct?

A. That’s correct.

Q. And does that mean before any clerk processing at all?

A. Yes.

Q. But isn’t it true that when this case was filed in the Eastern District of Virginia in July of 2018, the court delayed access for one day?

A. That’s correct. It used to be a post-processing court.

Q. And today?

A. It’s not. It’s on receipt.

THE COURT: What courts that — I’m sorry, I missed that.

MR. HIBSHER: I asked the witness whether this court, the Eastern District of Virginia, delayed processing of this case when it was filed in July for one day and the witness said yes, but that has changed, and in fact this court changed its process in the fall of 2018. And I don’t want to testify, but...

THE COURT: Okay. Well, then don’t.

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

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BY MR. HIBSHER:

Q. And are cases, Mr. Girdner, which are filed in the Eastern District of Virginia today made available same day?

A. Yes, they are. Like for example cases filed in this courthouse are made available today.

Q. Upon receipt?

A. Correct.

Sitting at a table across from us, the new clerk from Prince William Superior Court just outside Washington D.C. had made a different choice.

She instead pursued a scanning policy. She chose to docket and scan the new paper cases — in other words, run them through post-intake processing — before letting anyone see them.

Judge Morgan filleted her defense in his later opinion.

“After Plaintiff filed this lawsuit, the Prince William’s clerk denied that the delays in this case ever occurred; has maintained that her office is under no legal obligation to provide the level of access it began to provide only after this lawsuit was filed; and has asserted that her office could not provide same-day access to complaints without disrupting business operations even though it is now, on a post-lawsuit basis, doing just that.”

Testimony from the staff of both Smith and a second clerk caused the judge to “FIND that both Clerks refuse to accept the reality that they are fully capable of providing contemporaneous access.”

You see, they had the choice. They could give us access before post-intake processing. That’s what Judge Morgan found.

And he said it was not OK to choose not to.

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More stories and columns on the Virginia trial:

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