Last week a trial concluded in federal court in Norfolk, Virginia, where I was called to the witness box with U.S. District Judge Henry Coke Morgan Jr. watching me at eye level from a few feet away.
The Eastern District of Virginia is a mandatory e-filing court and it provides on-receipt access to new filings like most federal courts. So the judge asked about e-filing, but only after William Hibsher with Bryan Cave first questioned me about the effect of technology on the courts of America.
Q. Has the press’s ability to promptly see newly filed complaints changed over the years?
A. Yes. It’s been affected by the advent of two technologies: scanning and e-filing.
Q. And has that been a positive impact, a negative impact on access to new cases?
A. It’s two sides of the access coin. It’s had a positive impact in federal courts and some state courts where the tradition has been continued, where access is speedy and widespread. And then a number of state court clerks have used or have pushed the press behind the technological processes. So we’ve become behind what is essentially the docketing process.
Q. Have all state courts pushed the press behind processing?
A. Certainly not. Hawaii, for example, just recently went to e-filing statewide, and we see the cases just like in federal court – on receipt. There’s a number of states like that.
COURT: What happens if they’re electronically filed? … So that is immediate. Goes right to the docket? [Opposing counsel says the delay is de minimis.]
WITNESS: Your Honor, this is something I know a fair amount about. Do you want me to comment on this or not?
COURT: Well, yes, if you can clarify.
WITNESS: In the federal court, that case comes in, it’s automatically accepted by the software, and it’s available right away on receipt. So in the federal courts there is no time gap. In the state courts, there is, just like with paper, there can be a substantial gap between when the case comes in and when it’s accepted and made public.
COURT: Well, that may have to do with their computer program. I don’t know what control they have over that. In other words, what you’re saying is that in Norfolk and Prince William – and correct me if I’m wrong, anybody can correct me if I’m wrong – when they receive the e-filing, personally somebody reviews it before they hit the Accept button.
WITNESS. That’s right.
COURT: Whereas they don’t in federal court. Well, what you’re saying is they look it over before they hit the Accept button?
WITNESS: In the state courts, yes. We’ve got to —
COURT: Well, why shouldn’t they be entitled to do that?
WITNESS: Well, it’s just like here: The cases are filed when they’re received. That’s when they get the stamp.
COURT: So you’re saying that they treat electronic filing differently … they just automatically accept it.
WITNESS: Well, the software filters what comes in. You have to have the right amount of money, be in the right jurisdiction, stuff like that. And in some, a number of state courts we see the cases —
THE COURT: Well, I’m only interested in the state courts that are before this court.
WITNESS: What I’m trying to get at, Your Honor, is that it is possible for a state court to give us the access right on receipt just like the federal courts.
COURT: It’s possible?
WITNESS: And a number of them do it.
COURT: OK. Do you have any idea how long that delay is between receiving it and the pressing the Accept button?
WITNESS: It varies quite a bit. But generally I’d say cases that – what comes in in the afternoon tends to be delayed. It depends on how fast the clerks are working. It’s very analogous to the paper process, I find.
COURT: All right.
On the afternoon of the fourth day of trial, Judge Morgan ruled from the bench against two Virginia court clerks in Prince William and Norfolk who were denying same-day access to 40% and 60% of the new filings, respectively.
“The Court finds that news has a rapidly diminishing shelf life, and therefore access delayed is access denied,” Morgan ruled. “Accordingly, the Court finds that the First Amendment guarantees a qualified right of access to newly filed court documents. The First Amendment requires that such documents be made available contemporaneously with their filing. Contemporaneously means the same day unless that’s not practicable.”