Professional Documents
Culture Documents
Joseph H Zernik
09-08-29 Request for access to court records, to inspect and to copy in SEC v BAC (1:09-cv-
06829), and related questions about Rules of the Court at U.S. District Court,
Southern District of NY
Mr McMahon:
Therefore, I am for first time accessing records in your District, and I apologize
for my ignorance. I made efforts to access court records of the U.S. Court for the
Southern District of NY, to inspect and to copy, pursuant to Nixon v Warner
Communications, Inc (1978), and I was only partially successful. In that
decision, the U.S. Supreme Court re-affirmed the fundamental right to access
court records, to inspect and to copy. The Supreme Court found it to be
grounded in Common Law rights, older than the U.S. Constitution, and also in
the First, Sixth, and Fifth/Fourteenth Amendments.
I am also writing this letter as part of my efforts to document the state of such
rights in the various courts today, at the end of the dynamic period of transition
from paper to digital records. Today I believe that the last of the U.S. Courts,
including the U.S. Courts of Appeals, have installed Pacer and CM/ECF.
However, I have by now found out that the various Districts and the various
Courts of Appeals vary in their implementation of Pacer and CM/ECF platforms.
In part, I am trying to document to what extent the new customs, whatever they
are in the various Districts, are based in published Law and published Rules of
Court. My findings so far indicate that in the transition from paper administration
to digital administration, many rules were added, removed, or changed, but
many were never published in their new form – as practiced in reality, based on
the configuration of Pacer CM/ECF. The Rule Making Enabling Act 28 USC
§2071-7, clearly prescribed the procedures for updating the Rules of Court, and
the Clerk of the Court typically holds a central position in this function.
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In the case at hand, I noticed with great appreciation the care to detail by the
Court of the Honorable Rakoff, relative to the entry of Orders by the Court. It
reflected an effort to make the certification and authentication of such orders
clear and unambiguous, and visibly accessible to all. Not all share such
practices.
I spoke with three different offices of the court, the last of which was Mr Wolfson.
All persons were kind and tried to be helpful. However, I was unable to exercise
my rights. Furthermore, some of my questions, which fall on the “theoretical
side” were not the kind that staff is routinely used to answer. Therefore, Mr
Wolfson suggested that I address them in writing to you. I included here many
more questions than I ever asked by phone.
The questions below, and your answers to them, are directly relevant to the
letter I am to compose in re: Settlement now before the Court in SEC v BAC
(1:09-cv-06829). I would therefore be grateful if you could initially at least
provide an estimate when you would be able to complete the answers, or some
general view of the types of answers that may be generated in a phone call.
I will try to contact your office later this week in this regard.
1) Civil Docket:
My understanding is that the U.S. Court, Southern District of NY, like most
other U.S. courts, now keeps at least three separate and unequal dockets,
and various persons are assigned different access privileges:
a) Which of the three dockets 1) a) – c) listed above is/are the “civil docket”
referred to in the Rule 79?
b) I request access to inspect and to copy the writings that are the “form and
manner prescribed by the Director of the Administrative Office of the
United States Courts”. Is it available online somewhere?
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c) Is there any other basis in the law or in Rules of Court for the custom of
keeping such multiple different dockets with different access privileges for
different persons?
a) Summons as issued by the Clerk of the Court: I request the that the Clerk
of the Court provide the basis for the respective custom in the law, or in
the Rules of Court.
Summons as issued were not docketed in the case at hand in Pacer, and
I was told that the U.S. Court, Southern District of NY does not docket the
summons as issued in the two other dockets as well. I will have to ask
Plaintiff for a copy.
b) Summons as executed: I request that the Clerk of the Court provide the
basis for the respective custom in the law, or in the Rules of Court.
I was told that summons as executed are not docketed in any of the
dockets as well, only the service is noted as docketing text, but the
records themselves are not posted in any of the docket.
4) Stamps and NEFs for papers that are filed on paper by parties
I assume that all papers by parties that arrive at the desk of the clerk in
person or by mail are stamped with date.
a) Are any papers that arrive by parties in actions of the court not stamped
at all?
b) I assume you use “FILED” and “RECEIVED”, are they both electronic?
i. What are the Rules of Court relative to the use of FILED vs
RECEIVED?
ii. Is the use of non-electronic stamps allowed in the court?
iii. Is the alteration by hand of dates on the stamps allowed in the court?
iv. Who is authorized to stamp papers in the court?
v. Who is authorized to make entries in docketing sheets I the courts?
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vi. Are NEF or any other notices issued in CM/ECF when a paper that
was filed on paper in court was entered in the docketing sheet by the
Clerk?
5) NEFs for papers that are electronically filed by parties, in general and in
SEC v BAC (1:09-cv-06829) in particular:
NEFs for electronically filed papers include the Proof of Service, which FRCP
Rule 79, (2)(b), quoted above, required to be docketed. However, NEFs are
not accessible in Pacer, and I was unsuccessful in my attempts to gain
access to inspect and to copy.
I requested to obtain the printouts of NEFs of papers filed by parties. It appeared
that several of the Deputies, and even law clerks were not clear about the
location and significance of the NEFs. Possibly – they are also used to the
current state of affairs that they are not accustomed to Proofs of Service
practice. However, when I directed them to the NEFs in CM/ECF they seemed
to be clear that I was NOT allowed to obtain copies of such records.
Mr Wolfson stated that the parties file paper copies of the NEFs with a paper
copy of the papers that they filed electronically. However, he was not aware of
the fact that those who are not you specific district CM/ECF authorized users
cannot see the NEFs, since such records were stripped from the original
electronic filings in Pacer.
a) Request to obtain paper copies of the NEFs (no need to copy the papers
themselves, I have them downloaded from Pacer) of all paper electronically
filed by parties in the case at hand.
There are less than a dozen papers in total, and I will contact the office of the
Clerk of the Court with cc details by phone. I am asking if I am allowed to
obtain the copies of the NEFs from paper court file in the first place.
b) Request to obtain digital copies of the NEFs of all papers electronically filed
by parties in the case at hand.
c) Request to inspect the NEFs of all papers electronically filed by parties in the
case at hand, as separate right from the right to copy.
d) Request for references to Law or Rules of Court that are the foundation for
whatever the practice is in your district relative to 3) a) - c) above.
NEFs include the attestations by Clerk of the Court in digital court file, and
therefore are critical part of Court records. NEFs also include the Proof of
Service or Certificate of Mailing by Clerk respective to such orders. Therefore,
such NEFs are critical part of Court File.
It was not clear to me at the end what the practice was relative to the NEFs for
Orders filed by Court, and whether paper copies of the NEFs are docketed in the
paper file of the court. It appeared that such was not the practice. It was clear
that I was unable to obtain any copies of such NEFs in any form.
b) I request to exercise my right to inspect the NEFs for Orders filed by the
Court, and for the foundation of whatever the practice is in your District in
Law or Rules of Court.
The question is whether I would be allowed to inspect the NEFs in their true
original digital form, e.g. – from a terminal in the Office of the Clerk of the
Court – the way they are displayed in CM/ECF for users of your own District,
if I come to the Office of the Clerk of the Court during business hours.
c) I request to exercise my right to copy the NEFs for the Orders filed by the
Court, on paper and/or in digital form, and for the foundation of whatever the
practice is in Law or Rules of Court.
The question is whether I would be allowed to copy the NEFs for the Orders,
either on paper, and/or in their true original digital form, e.g. – from a terminal
in the Office of the Clerk of the Court – the way they are displayed in
CM/ECF for users of your own District, if I come to the Office of the Clerk of
the Court during business hours.
8) Filing and entering by the Clerk of the Court of unsigned Orders and
Judgments
Is there such practice in your District of filing and/or entering orders and
judgments by the Clerk of the Court that are not signed by a judge, and are
posted online in Pacer and/or CM/ECF, and are stated in the docketing sheet
as “unsigned, unpublished” orders or judgments, and the final outcome of a
court action?
Is so, are such practices based in Law or Rules of Court?
9) Removal of papers and orders from public view in Pacer and/or
CM/ECF
I am readily familiar with sealing procedures for paper records, that are
stipulated by Law and Rules of Court. The question pertains to removal of
papers or orders from public view on Pacer or CM/ECF, outside of cases
where papers were sealed by court procedure.
a) What is the practice in your District regarding removal of papers or orders
from public view on Pacer?
b) Is there such practice of never filing papers or orders for public view in
the first place?
c) Are such practices founded in Law or Rules of Court?
10) Digital signatures in docketing sheet of electronic dockets in Pacer and
CM/ECF, and hand signatures in docketing sheet of paper court file.
a) Request to inspect and to copy hand signatures that are the attestations
in the paper court file of papers and Orders by the Court.
The question is whether or not you keep a docketing sheet with the paper
court file, and whether the docketing sheet includes hand signatures of
the clerk who entered the notes.
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Also- Are the same docketing notes, by the same clerk, and same
signature as the one who entered digital docketing notes?
Also- Is there a hand signature of the Clerk attesting on the face of the
record in the paper court file.
b) Request to inspect and to copy digital signatures that are the attestation
in the electronic court file in the docketing sheet.
The docketing sheet in Pacer shows the initials of the clerks, and I am
informed that these initials correspond to full digital signatures in the
docketing sheet in CM/ECF. However, any tags that would have allowed
to ascertain the authenticity of such digital signatures were stripped from
the Pacer system.
Additional question is for the basis of the custom in your district, whatever
it is in the Law or Rules of Court.
otherwise, and the foundation for the practice of your District, whichever it is,
in the Law or Rules of Court.
The question pertains to which level access is provided through terminals in
the respective U.S. Court of Appeals: Pacer, CM/ECF, Judicial level access?
14) Pacer Dictionary and rules pertaining to docketing, Docketing Activity
Report, Related Transactions Report, and related issues.
a) Dictionaries
Various functions in Pacer provide variables where the input are words that
are commonly used in natural language, but in Pacer or CM/ECF, such use
is restricted as valid values that may be entered in given variables. For
example, in Docketing Activity Report, a paper can be designated as
“Motion”, but it can also be designated as “Misc”, however, I assume that if
you tried to designate it “Green”, the system would reject that value as invalid
for the variable.
Request is for access to inspect and to cop the Pacer and CM/ECF
Dictionaries of words that are permitted by the programs as valid values to be
entered in the various variables, and their specific rules of use.
b) Accountability and quality assurance for true and correct use of Dictionaries
in docketing.
i. What are the practices in your district regarding accountability for true
and correct use of Dictionaries in docketing?
ii. Are there any conditions where values can be entered for a given
variable, which are meaningless, and are accepted by the programs?
For example, if “Motion” may be an acceptable paper type, “motion”
may not. If the program allowed “motion” to be entered, it would have
no meaning for the program.
iii. What is the basis in Law or Rules of Court for such practice?
iv. Is the public allowed comments on errors in the use of such
Dictionaries in docketing?
c) Rules of court in re: assignment of terminations, and missing adjudications
i. What are the rules in your District regarding assignment of Related
Transactions and Terminations?
ii. What are the rules in re: missing adjudications?
d) Reports that list adjudications
The reports that are publicly accessible in Pacer conspicuously fail to list the
adjudication of the motion themselves – Granted, Denied, Moot, etc.
Request is regarding other reports that may list the adjudications, and the
basis for their constructions and denial of public access privileges, and the
basis for such practices in Law or Rules of Court.
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I apologize for the lengthy requests, surely you realize the significance of the
questions. In fact, not being a lawyer, I was astonished by the fact that in most
courts I was the first one ever who made such requests. I believe that the Common
Law right to access court records, to inspect and to copy, is not only a right, but also
a duty. A public that does not perform his duties is to blame for any deficiencies in
the system as we see it.
Joseph Zernik
CC: