Where Were You When PACER Went Down?

I know most good lawyers like to serve their Rule 11/sanctions motions on a Saturday, but you may need to move it up a day, as PACER goes down nationwide this weekend:

There will be nationwide maintenance on the PACER system Saturday, January 14, 2012. The disruptions will begin at 9 AM ET and continue until 6 PM ET. PACER users may have sessions terminated or experience difficulty logging in to the system. CM/ECF filings will be accepted but viewing docket sheets, or reports will be disrupted. We apologize for the inconvenience. 

Listen, don't be upset -- if opposing counsel receives email notification of your motion while having dinner with her family Friday evening, you can have almost the same intended impact!

SFL Friday -- PACER and the Pussycat

I think everyone besides Judge Altonaga pretty much takes PACER for granted nowadays.

But there was a time -- in the dark ages, 'natch -- when you had to actually run to the Courthouse to "pull a file" and copy a pleading or motion.

Let me correct that -- you had to send some lowly associate to go to the Courthouse and do all that, but still!

(And phone messages were on little slips of paper!)

Perhaps that's why I found this article by the former chair of the Judicial Conference's Court Administration and Case Management Committee to be so interesting.

Apparently some smart people are studying how to upgrade and improve PACER:

Nearly 40 percent of PACER's revenues are generated by less than 1 percent of its active accounts, and the vast majority of the remaining PACER accounts incur less than $500 in fees per year.

What happens to the funds collected each year from PACER users? In compliance with statutory language, the money is used to pay the expenses of maintaining and improving the public access program. Moreover, all uses of electronic public access fees are approved by Congress through annual submission and approval of the judiciary's financial plan.

Certainly PACER and the services it offers can be improved. That is why we are conducting a yearlong comprehensive program assessment to identify potential enhancements to existing services and new public-access features that could be provided to PACER's varied users. User surveys will be a big part of the assessment, and this input will help shape a final report, expected by June.

Functionality is an important component of the assessment. We already know that usage of PACER's U.S. Party/Case Index application continues to grow, with more than 200,000 searches daily. The application has been running in its current format since 1999, and needs updating. Its search functionality is limited, but the judiciary is working on a new version that will provide enhanced search capabilities and result formats that can be easily imported to other programs for analysis. The new version is being tested, and it should be available to users soon.

Furthermore, we continue to explore ways to enhance already available services. A pilot program is under way to evaluate the expansion of PACER to include access to digital recordings of court proceedings in district and bankruptcy courts.

In other words -- iPACER!

(I hope no one else has thought of this).

BREAKING -- if you're interested in what Barbra Streisand thinks of Citizens United, you can find her trenchant legal analysis here.

Oy -- such a voice, but dear you're not helping.....

Let's see, it's Friday and as usual I have packed my necessary windsurfing items --- chewing gum, reading material, pulled pork -- you know, the basics.

It's always best to be prepared.

Have a great weekend!

You Don't Want My Metadata.

A few years ago everyone wanted to talk about "metadata."

There were CLE seminars on it, papers, you name it.

Of course the Florida Bar got involved and the Florida Bar Board of Governors held a conference and naturally everyone got very worried about it -- so worried that several of the board members hadn't heard the word "metadata" until the meeting in which they immediately voted to denounce it.

I don't want to say it reached what I would describe as the highest level of inordinate outsized media attention --"flatbread mania" if you will, but it got up there.

Add to that the annoying obligation recently imposed by the CM/ECF system to check off your awareness of your redaction responsibilities every time you log on -- thank you, stupid bankruptcy lawyers! -- and you have a perfect storm of y2k-style paranoia brewing.

Just a few moments ago I received this email from a federal district court advising that even your well-intentioned yet totally lame redaction methods may be inadequate:

Some redaction techniques used when e-filing are ineffective, in that the text intended to be hidden or deleted can be read via a variety of techniques. And, because information about the document, called "metadata", is also stored inside the document, it is often viewable as well. Examples of metadata and hidden data include the name and type of file, the name of the author, the location of the file on your file server, the full-sized version of a cropped picture, and prior revisions of the text.

E-filers must use extra care to make sure that the PDF documents to be submitted to ECF are fully and completely free of any hidden data which may contain redacted information. The protection of sensitive data can be compromised if improper redaction techniques are used. Here are a couple of examples of sensitive-data visibility issues:

* Highlighting text in black or using a black box over the data in MS Word or Adobe Acrobat will not protect the data from being able to be seen. Changing the text color to white so it disappears against the white screen/paper is similarly ineffective.

* Previous revisions and deleted text may be able to be seen by manipulating an Adobe Acrobat file.

Listen, I'M JUST TRYING TO FILE A NOTICE OF APPEARANCE HERE!

If somebody wants to take the time to unpack my one page notice and learn that I spent half the day rewriting the first page of the brilliant graphic novelization of Kafka's Metamorphosis to include wild half-man, half-bug sex between Gregor Samsa and Drew Barrymore, so be it:

One morning, as Gregor Samsa was waking up from anxious dreams, he discovered that in his bed he had been changed into a monstrous verminous bug. He lay on his armour-hard back and saw, as he lifted his head up a little, his brown, arched abdomen divided up into rigid bow-like sections. From this height the blanket, just about ready to slide off completely, could hardly stay in place. His numerous legs, pitifully thin in comparison to the rest of his circumference, flickered helplessly before his eyes.

“What’s happened to me,” he thought. It was no dream. His room, a proper room for a human being, only somewhat too small, lay quietly between the four well-known walls. Above the table, on which an unpacked collection of sample cloth goods was spread out—Samsa was a travelling salesman—hung the picture which he had cut out of an illustrated magazine a little while ago and set in a pretty gilt frame. It was a picture of Drew Barrymore from her January 1995 Playboy pictorial, with several well-placed tattoos and a smile that could make a man go buggy with primal animal desire. She sat erect there, lifting up in the direction of the viewer a solid fur muff into which her entire forearm had disappeared.

It goes on from there, but you get the picture.

There, I hope it was worth it, all you efiling metadata thieves -- happy now?

I'm Sick To Death of "IMPORTANT NOTICES OF REDACTION RESPONSIBILITY" And Other News

Listen, I understand it's not a good thing to publish Social Security numbers or other personal information in public forums (hey, that's what Facebook is for!), so I get why CM/ECF has recently started to highlight that issue.

But every single time you log in? You mean we all will have to separately click that box for the rest of our legal career, every single time, every single day we try to access PACER -- perhaps thousands upon thousands of times?

I guess we really are that dumb.

Totally unrelated -- did you hear Sarah Palin is going to speak at a real college? It's something called College of the Ozarks and its nickname seriously is "Hard Work U."

According to the school's student handbook (portion highlighted above), this may be one of the few decadent, sicko liberal fornicatin' colleges that even George L. Metcalfe can get down with.

Since we're on the topic of God-given sexuality, does the public option turn you on? I was kinda lukewarm on it, but I suddenly have a strong interest in its passage now that it is literally personified by the lovely Heather Graham.

I hope everyone has had a chance to read the motion for rehearing en banc that was just filed regarding the recent ILSA opinion by the 11th Circuit. It minces no words, and argues flatly that the Panel decision "was the result of obvious bias."

Finally, speaking of alleged bias, this Orly Taitz is one hot crazy mama -- she has granted one of my many wishes and has appealed Judge Land's Rule 11 sanctions order to the 11th Circuit in an unusually detailed notice of appeal.

There are lots of highlights, but here's my favorite part:

Judge Land’s actions that amounted to misstating or misrepresenting ninety percent of what was presented in the pleadings and argument, completely ignoring ninety percent of the argument and facts, making extremely rude and demeaning remarks, showing bias; taken together, appear to be designed to silence her and, intimidate her and above all, punish her for what the Court perceived as political rather than “core” constitutional questions. It appears to be a thinly veiled threat to other attorneys not to pursue similar Constitutional issues, which will have a chilling effect on the ability of the public to use the Federal Court system to uphold their constitutional rights. Judge Land’s remarks amounted to nothing short of political lynching, which turned into feast and celebration by the media mob.

So I guess she's saying Judge Land got 10 percent of it right?

Maybe I'm jaded, but that's not too bad a percentage when you think about it.

Holy hail it feels like Friday.

ERISA!! (PACER Surfing Thursday)

You heard me, I'm talking ERISA.

ERISA!!

Fed law clerks, you know what I'm talking about. You got to admit it, you get a little excited when you see a complaint come in and it deals with that provocative statute on steroids.

In fact I'll go so far as to say that an ERISA case is nearly as exciting as a social security appeal -- minus all the sexiness and bodice-ripping drama.

I mean, where else can you find this kind of forceful, thrilling, even daring argument:

Plaintiffs’ ERISA claims (Counts 1 through 3) must be dismissed for their failure to exhaust their administrative remedies. Independently, the ERISA claims against Stiefel Laboratories, Inc. (hereinafter the “Company”) must be dismissed because the Company is not a fiduciary of the Employee Stock Bonus Plan (“ESBP”), and these Plaintiffs (none of whom “diversified” their ESBP account holdings) lack standing to assert Count 3, which is based upon an alleged prohibited transaction under ERISA in connection with the ESBP diversification opportunity in February 2009.

If that doesn't make you stand up and proclaim YES I AM A LAWYER DAMMIT! I don't know what does.

(BTW, that's Dandy Dave Coulson on the brief, and he actually does a good job with it and the 10b-5 claims as well).

PACER Surfing Thursday -- Sorry About That, Chief!

Dear Judge Graham and Magistrate Judge Torres:

It is with some regret that I must write you both in relation to the docket in Appel v. Liberty American Insurance Company.

Perhaps I am reading it wrong, but there appears to be some kind of misunderstanding.

There are some very capable counsel in this case, I just want to reiterate that point.

I also attempted to understand what the case is about, and carefully reviewed Judge Graham's Order denying the defendants' motion to dismiss the complaint and motion to dismiss for lack of standing.

All I know is there are a lot of acronyms in the case, as evidenced by this language on page 16 of the Order:

With respect to reporting, Mr. Leftwich, the former VP of Claims for LAIS, testified that he reported to Dan Eldridge, President of LAIG, LAIS, LASIC and LAIC, and peripherally to Mr. Benake, the VP of Claims for PCHC.

Aha -- the old LAIG, LAIS, LASIC, LAIC, PCHC trick!

The defendants then took an interlocutory appeal of the order denying dismissal(!), and moved to stay the case and for a protective order to stay discovery while the appeal is pending.

"Fastest Mag in the SD FL" Judge Torres denied the motion for protective order without waiting for a response from the plaintiffs:

Upon review of the motion, no response is necessary for the disposition of the motion. Defendants seek a protective order from having to respond to any discovery requests while their motion to stay is pending with the District Court related to an interlocutory appeal of the Court's denial of a motion to dismiss. Without taking any position on the pending motion to stay that is currently briefed and before the District Judge, this Court's review of this motion for protective order shows that no good cause exists under Rule 26 to preclude Plaintiffs from pursuing discovery they would be entitled to in accordance with the District Judge's Order denying the motion to dismiss. Defendants' compliance with that discovery would not undermine their appeal, would not cause irreparable harm, and would not cause such injury that a protective order would be necessary. Thus, for discovery purposes, the relief requested in this motion is unwarranted. The denial of this motion, of course, does not resolve the pending motion to stay the litigation pending appeal, which if granted would then indeed allow Defendants to refrain from responding to discovery while such a stay were in place. For now, Defendants are ordered to comply with all pending obligations under Rule 26.

In other words -- missed it by that much!

Free PACER?

Are you one of those cheapskates who can't afford $.08 per page just to see how brilliantly some lawyer cites Iqbal in a boilerplate motion to dismiss?

Well, your prayers have been answered (h/t to a loyal reader):

The Solution: RECAP, a Firefox-only plugin, that rides along as one usually uses PACER — but it automatically checks if the document you want is already in its own database. The plug-in’s tagline, ‘Turning PACER around,’ alludes to the fact that its name comes from spelling PACER backwards. RECAP’s database is being seeded with millions of bankruptcy and Federal District Court documents, which have been donated, bought or gotten for free by open-government advocate Carl Malamud and fellow travelers such as Justia.

And if the document you request isn’t already in the public archive, then RECAP adds the ones you purchase to the public repository.

The plug-in was released by Princeton’s Center for Information Technology Policy, coded by Harlan Yu and Tim Lee, under the direction of noted computer science professor Ed Felten.

That’s a pretty good hack, but it’s still just a stop-gap measure until the federal courts figure out that in the age of the internet, charging citizens to search and read public documents should be a federal crime.

Should be fun until Judge Moreno finds out!

PACER Surfing With Pleasure P!

You all know how much I love music.

That's why I found this case involving hot young R&B hearthrob Marcus Cooper a/ka/ "Pleasure P" so interesting.

Cooper, a Miami native and former member of the raunchy local group Pretty Ricky, has struck out on his own and from the reviews on Amazon, he's got a pretty bright future.

(Except let me repeat my earlier advice -- don't work blue, P.)

Too bad he's embroiled in your typical manager/young artist label dispute which is now pending before Magistrate Judge Garber.

Having read a bunch of the pleadings, it has been very contentious. The lawyers have been fighting over remand, fees, deposition dates and locations, extensions of time, requests for sanctions, you name it.

Take, for example, this opening from Cooper's reply brief in support of his motion for summary judgment:

Defendants’ opposition brief is like watching a New York street hustler fleece an unwitting tourist in a game of three-card Monte. Throughout this litigation Counterclaim Defendants have consistently demonstrated their total disregard of the governing law and the truth.

Uhh, ok.

I also like this excerpt:

Moreover, there is no credibility to their cookie-cutter statement concerning Rex Zamor. Corey Mathis testified that Zamor didn’t actually do anything as “manager.” Mathis Tr., p. 53-54. His precise words were “He ain't do shit.” Id., p. 54, line 8.

You know, brevity truly is the soul of wit.

Cooper is represented by NY attorney Robert Meloni and local counsel Richard Celler of Morgan & Morgan.

PACER Surfing With SFL!

You guys ever PACER surf?

You know, go onto PACER and plug in some attorney's name or law firm or some defendant to see what they're up to here in the Southern District?

No, me neither.

But just for kicks I plugged in two of my favorite South Florida attorneys, Chris Carver and Hilarie Bass.

Chris is involved in a mess of a maritime case before Judge Moreno and the fastest Mag in the West, Judge Torres, In Re: MS "Madeleine" Schiffahrtsgesellschaft mbH & Co. KG, Reederei Alnwick Harmstorf & Co. GmbH & Co. KG and Bangor Castle Shipping Company Limited.

It's pretty exciting stuff, with Fowler White, Shutts & Bowen, and a bunch of local maritime lawyer-types involved.

I would summarize the litigation, but the last few times I tried I fell asleep at the keyboard and had to be revived by a double-cafecito and repeat viewings of "10."

You guys are on your own on that one.

Hilarie has an interesting piece of litigation involving the owner of Mykonos Restaurant who is suing the Baltimore City Paper for defamation. My friend Miguel de la O's partner Joel Magolnick is representing the plaintiff.

Ok Joel, you're my friend too.

Reading the complaint and also the pending motion to dismiss for lack of venue that Hilarie filed, it seems that the paper allegedly got the owner of the restaurant confused with a Baltimore federal fugitive that also happens to have the same name as Joel's client. After getting a letter, the City Paper allegedly ran an apology and retraction:

On September 24, 2008, City Paper posted an online retraction, stating that it “regrets the confusion and apologizes to [Plaintiff] for any troubles they've had as a result of the stories.” (Compl., Exh. C.) On October 8, 2008, City Paper re-ran the August 27, 2008 article, prominently prefaced with a “Correction,” clarifying that there is no connection between Plaintiff and “Crazy John” Kafouros.

Joel's complaint, of course, lists a number of other problems and alleged errors with the story.

Plaintiff filed in state court, defendants removed, and they are moving to dismiss or transfer based on improper venue.

The interesting issue is whether online dissemination of a story can subject you to long-arm jurisdiction somewhere else where the article is read. Hilarie's analysis focuses on Young v. New Haven Advocate, 315 F. 3d 256 (4th Cir. 2002), where the court established an "effects" test to determine where the "primary effects of the defamatory statements" were felt.

It looks like GT associate D. Porpoise Evans wrote the brief and did a fine job.

Joel just got an enlargement from Judge Gold so his response brief has not yet been filed.

Meanwhile, all I can say is the plaintiff runs a great restaurant and I hope there is some in-kind edible payment involved for Joel's legal efforts.