Presumption and Fact: The Ask for Access

April 28, 2020

The negative presumption of the press as an overweening and demanding group found its way into a recent Ninth Circuit opinion on access to public filings. In fact, the request from Courthouse News has been both moderate and flexible over time, as the author testified on cross-examination in a federal courtroom.

In simply trying to hang on to traditional press access over eight lawsuits and a decade of litigation, Courthouse News has been opposed by top-drawer private litigators paid with public money who have tried to paint the press as privileged elitists seeking to harry over-worked and dutiful clerks.

In my various declarations in all that litigation, I have wanted to explain that I was not asking the clerks to do anything other than leave the door open. But I have not been permitted to put it in such blunt words.

What I add when I’m saying that is that we will do and have done any fetching necessary. All I ask is that the clerk not lock the door on us.

That negative presumption that reporters are a demanding and self-entitled lot found its way into the recent Planet III ruling where it was said, “In CNS’s view, anything short of immediate access violates its First Amendment rights.”

To properly understand the timing of the matter, one needs to understand how a case is filed in broad terms. A person pushes a new filing across the physical or virtual counter into the court. Either a person or a piece of software runs the filing through an initial muster. That is step one.

The document is filed at that point.

Then — step two — the new filing is docketed through human keystrokes in both mediums, paper and digital. That work takes time and it stacks up.

Traditionally, the press saw the new filings after step one and before step two. As soon as the paper crossed the physical counter and, in federal courts, as soon as the e-filing crosses the virtual counter.

So that is all we ask, to stay in that spot, after the case crosses the counter and before the admin work and the delay that goes with it.

And, contrary to the portrayal of CNS in Planet III, we say repeatedly that, “We do not ask for perfection.”

So I can write that here. But it has more heft when said under oath in a federal courtroom, such as the one in Norfolk, Virginia, where earlier this year I was cross-examined by the clerks’ lawyer William Prince:

Q. And in all these lawsuits you allege that delays in access are being caused by clerks withholding access till after … scanning and data entry; is that correct?

A. So for example, in Chicago, Clerk Brown ... gave us fantastic access to paper. Top notch. Excellent. I know that court. As soon as she switched over to e-filing she started holding it back because she was processing the cases first. You know, the clerks are going through what I described. They’re going through, checking if all the filing is correct and then processing. And the result was we were pushed back. So that was an e-filing court. See what I’m saying? It wasn’t all paper.

Q. You’ve taken the position the clerks must provide contemporaneous access; is that correct?

A. That’s right.

Q. Which means to CNS on the day it’s received for filing?

A. Correct.

Q. You’ve taken this position across the country?

A. Yeah. I don’t see a change in that, no. I believe that’s consistent, yes.

Q. Do you anticipate filing additional lawsuits against clerks based on access delays?

A. This litigation blasts a hole in our bottom line, okay? Litigation in general does. It’s extraordinarily expensive. So those decisions will have to come.

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

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[On redirect]

BY MR. HIBSHER: Is CNS seeking perfection in its efforts to obtain contemporaneous access?

A. This is something I’ve repeated over time and over years: We do not ask for perfection from a court. We never do.

Q. And in regard to what it is that CNS asserts a right to, does CNS insist that it has a right to see newly filed cases before the initial indexing, the receipting of the complaint, and the recordation of the parties?

A. All right. We think we have a right to see them after intake and before the indexing and scanning.

Q. So CNS’s position is that it should be able to see newly filed litigations before the full panoply of administrative processing; is that correct?

A. That’s correct.

Q. But you do not object to the clerks doing the initial intake; is that fair?

A. The tradition that I say was universal was after intake. Certainly not before.

MR. HIBSHER: Thank you. That's it, Your Honor.

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More stories and columns on the Virginia trial:

‘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