The PACER platform—Public Access to Court Electronic Records—is still a relatively recent invention, completing wide implementation by federal courts in the early 2000s. Despite its quirks, it remains revolutionary. Before PACER and its related Case Management / Electronic Case Files system, one had to literally go to a federal court to file something, or rely on courier or the Postal Service, and serve paper copies on the other parties in a case. Plenty of practicing federal litigators lived this, but even a lot of us who aren’t spring chickens can only imagine it. (Of course, a surprising number of state courts still maintain some version of paper filing and service.) The flipside of electronic filing is just as important: anyone with a credit or debit card and some patience can access filings from most federal cases filed in the last two decades and sometimes even earlier than that. PACER has largely lived up to its name.

But what about older case files? Where did all those paper filings from the pre-PACER days go? What do you do if you need to see one? Existing guidance online is woefully incomplete, so I have written this guide from my own experience.

I. The Value and Contents of Older Case Files

Sometimes it is worth going above and beyond the legal research available on Westlaw, LexisNexis, and everything else that is on the internet. For instance, I am representing a Wyoming citizen in a First Amendment challenge to the state’s no-electioneering zones around polling places, which have a radius of 300 feet on Election Day and 100 feet during in-person absentee voting. In 1992, the U.S. Supreme Court upheld a 100-foot Election Day zone in Burson v. Freeman, a plurality opinion with two concurrences  and a sharp dissent. Prior to Burson, in the late 1980s, media companies successfully challenged no-electioneering zones in several states owing to the censorship of exit polling. (Burson did not affect those rulings—exit polling was carved out in the plurality opinion because “there is simply no evidence that political candidates have used other forms of solicitation or exit polling to commit such electoral abuses.”) One of those earlier cases was brought by NBC, ABC, and CBS against Kathy Karpan, who was then Wyoming Secretary of State. Other than a few references on Westlaw, I could locate nothing online about the case. So I went and found the old case file. Although the decision is not binding, the unpublished permanent injunction ruling that struck Wyoming’s earlier buffer zone law was enlightening and worth including in our suit.

I have ordered many other federal case files—it must be nearing 50—for historic research. For me, these cases are often more about facts than law, and, of course, facts are no less important than law in a lot of litigation. For example, if one is defending a client in a lawsuit brought by an older plaintiff, it is easy enough to pay $34 to have the clerk’s office of the local federal court (and any jurisdiction where the plaintiff lived previously) run a name search of the plaintiff and then order copies of the case files if any turn up.

In my experience, federal criminal case files are almost always preserved (I have ordered cases from as early as 1963), but the availability of civil cases varies considerably. It seems each court makes some kind of value judgment to decide what to archive and what to discard. While a First Amendment case like NBC v. Karpan is available in its entirety, the files making up a contract dispute brought under diversity jurisdiction that was resolved in 1983 were probably discarded long ago, with nothing left other than a docket sheet. (That said, don’t underestimate the potential value of a docket sheet.)

In case files that are available, one will find that federal civil and criminal procedure haven’t changed too much, at least not since the mid-20th century. There are motions, briefs, rulings, and even evidence to an extent—usually when it’s on paper. Today only relevant portions of deposition transcripts are filed on PACER (often a requirement under local rules), but in older cases, one can find complete deposition transcripts. Trial transcripts usually exist only when there was an appeal; in criminal cases, that usually means when there was a guilty verdict. Other exhibits were usually returned to counsel a few years after the exhaustion of all appeals. (Much to my chagrin, that usually includes exhibits such as cassette tapes on which wiretaps were recorded.)

II. The Process of Locating and Ordering Older Case Files

Most pre-PACER federal case files have been transferred to the National Archives and Records Administration (NARA), but the originating court has the information needed to order the file—that is, the original case number, the NARA accession number, location number, and beginning box number.

  

Some courts, such as the Central District of California, have turned over everything prior to a certain date to NARA including indices, but one must generally begin with a query to the court’s clerk. To order a pre-PACER federal case file, it helps to have the case number or as much other information about it as possible, such as the names of the parties and the year it was filed (or at least a range of years of when it might have been filed). The only search option provided by federal courts is a name search, which federal courts sometimes include on a copy and service request form. The linked example is from the District of Nevada, and the form can be submitted by mail with payment. But other federal courts do not provide a form and simply list the $34 fee for a record search. In those instances, one can often call the clerk’s office, request the search and pay with credit card.

Unfortunately, I believe a form is often not provided because old case orders and name searches are uncommon. I have never interacted with a clerk’s office that made it seem like a normal occurrence. This can make the process difficult because a search can be faulty even if it’s embraced with gusto by the clerk’s staff. Recently, I ordered a name search for an individual, knowing he was criminally prosecuted in the district in the early 1970s, but nothing turned up in the initial search. I had to follow up several times before they located the case information. This leaves me a little suspicious of the value of general name searches. Again, it’s not necessarily the fault of personnel: in one district where I’m a repeat customer, staff shared with me that a prior long-serving clerk maintained an unorthodox index that makes a general name search all but impossible. Without prior knowledge of a case’s existence and information such as year and subject matter, a search under such a system would be dubious.

When a search or request is successful, one may take the information and order a case file from NARA. This is done through NARA’s online portal or by emailing a specific archive. Like the federal courts themselves, NARA’s archives are located across the country. At this point, things can take different paths. The NBC v. Karpan case file was located at the National Archives at Denver, but many other case files from Wyoming are instead at the Federal Records Center in Denver. I cannot begin to tell you why NARA has separate archives and records centers—or why some records centers are called a “National Archives Trust Fund”—but their differences are stark. While National Archives locations usually have a reading room and permit one to visit and review case files in-person, federal records centers do not accommodate in-person visits. In my experience, National Archives locations are much more flexible with remote orders for reproductions: they will usually send a copy of a case’s docket sheet free of charge and permit ordering copies of individual docket entries. Not so from federal records centers, from which one may only order a copy of the entire case file.

When it comes to costs, there are differences between National Archives locations and federal records centers, too. While most locations charge $90.00 for a case file up to 150 pages, after that page count is exceeded, some federal records centers charge $22.00 for every 15 minutes of scanning while others charge a fee of $0.80 per page. Either way, costs can add up fast, but I’ve found that the 15-minute rate often adds up to substantially less, costing around $0.20 per page.

All of the NARA locations have embraced digital scanning and use a decent online file transfer system. Obviously, the process is far from the simplicity of a direct download from PACER, but in the end one still has an Adobe PDF. I give the NARA staff a lot of credit for paying enough attention to scan the back of a page when there’s handwriting on it or other marks. They’ll even scan pieces of physical evidence on the rare occasions they’ve been left in a file:

  

Unfortunately, the copying services do not go beyond paper documents. (But mark my words: somehow, I’m going to get a copy of this tape.)

It should go without saying that one should be polite with the staff of clerk’s offices and other agencies, but it is worth re-emphasizing here. While one may be justifiably bewildered at the complexity of this process, it goes far more smoothly with good humor and patience in every interaction along the way.

III. The Future of PACER and Pre-Existing Records

PACER claims that it “provides the public with instantaneous access to more than 1 billion documents filed at more than 200 federal courts,” and NARA says that it has “more than 2.2 billion textual pages of court materials.” Obviously, there is a lot of room to improve the process of locating and acquiring old federal court records. Broadly—far beyond court records—NARA is tackling digitization. But improving access to old federal court records must currently take a backseat to improving access to more recent—or even today’s—federal court filings. That is, the launch of PACER may have been a revolutionary step in promoting public access, but there have been few advancements since.

Both Westlaw and LexisNexis now have platforms that interact with PACER. Instead of paying per-search fees and per-document fees on PACER, one can use the bigger research platforms as part of a subscription. I’ve found I can also search entire dockets for terms on one of these research platforms far more easily than on PACER itself. But there is no way to search the filings themselves without downloading them individually. Making that an option would be a new revolution in legal research, and permitting attorneys to set up ongoing searches and alerts for citations in new legal filings would be (I say this with some reluctance) a far greater benefit to the profession than permitting easier access to a bank robbery prosecution from 1965.

Some federal courts are slowly adding old case numbers to PACER in their respective districts and also adding PDFs of docket sheets, which is generally the only document retained by the clerk’s office. This is a welcome development that will slowly improve at least the process of identifying old cases in the first place. For now and probably the near future, archival research into old federal cases will remain a taste of the old days even for those of us who’ve always had PACER.

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