Poor People & Cost of Electronic Court Records: Who Pays?

Nowadays, and for years now, federal court records are created and maintained electronically.  People access the records electronically. That is no surprise. But what if one cannot afford to pay the fees for electronic access? And suppose a party in a lawsuit cannot afford those fees? The law is not entirely settled on this issue.

Poor people's access to the civil judicial system depends on resolving the electronic access fee question. Fees can be waived, but what conditions might be placed on the electronic access?

A Montana federal district court a few days ago ruled that a poor person raising a claim under the Americans with Disabilities Act is entitled to access to the federal court electronic filing ("ECF") system without paying the usual fees for that access. Ashton v. De Jana, 2015 U.S. Dist. LEXIS 106794, *2 (D. Mont., August 13, 2015).

The Electronic Public Access Fee Schedule issued by the Judicial Conference of the United States provides for an exemption if the person has "demonstrated that an exemption is necessary in order to avoid unreasonable burdens and to promote public access to information."

Robin Ashton had filed on her own a federal ADA lawsuit asserting that she has multiple disabilities for which special accommodations are needed to be made at a state court facility. While the federal court ultimately did not permit her to proceed with the federal claims (which would impermissibly have interfered with state court proceedings), the court imposed some conditions on the ECF access:
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1. This exemption granted is expressly limited to her access to the electronic records contained in this case, CV 15-66-M-DLC-JCL. Ashton is cautioned that her use of this exemption and the PACER system to access electronically stored data, information and documents in anything other than this case will result in the immediate revocation of this exemption.

2. Ashton shall not sell the data obtained as a result of her exemption, and she must not transfer any data obtained, unless expressly authorized by the Court,

3. Ashton's exemption shall terminate upon the entry of a final judgment in this case, CV 15-66-M-DLC-JCL, or by August 15, 2016, whichever occurs first, . . .
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The above is one court's answer to the electronic access question. But other efforts have not fared as well. For example, a Mr. Emrit sued PACER (which administers the ECF system for the federal government) and, relying on the ADA, claimed that, without access, he was being discriminated against. The court threw out his claim, finding that the ADA does not apply to the federal government.  Emrit v. Pub. Access to Court Elec. Record , 2014 U.S. Dist. LEXIS 155631, *5 (W.D. Tex. May 20, 2014). Emrit had earlier sought to use PACER for legal research and he was found not to have satisfied the above-quoted exemption standard.  Emrit v. Central Payment Corp., 2014 U.S. Dist. LEXIS 33697, 2014 WL 1028388 (N.D. Cal. 2014).

To be sure, some courts do seek to accommodate the needs of disabled parties, though the extent of what is offered may reach the limits of what courts can do. See, for example, the examples cited by the court in Anaya v. Marin County Sheriff, 2015 U.S. Dist. LEXIS 4220, *2-3 (N.D. Cal. Jan. 9, 2015):

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As noted in prior orders, the Court has provided plaintiff with reasonable accommodations; including frequent extensions of time, appearance by phone, access to PACER and electronic case filing, and personalized assistance by the Court's IT department and my Courtroom Deputy. Plaintiff's problems — her pain and concentration/cognitive issues, her need for Dragon Legal software, her "poor access to online time" — cannot otherwise be addressed by the Court.
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