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National News

Judge limits access to online court records

September 25, 2013 posted by Steve Brownstein

Every time a jury gets sworn in -- whether in a criminal or civil case -- the members are instructed by the judge that they are not to independently investigate any of the circumstances of the underlying case, including looking up information about it online.

Despite those explicit instructions, the administrative judge for the Civil Division in Allegheny County Common Pleas Court said, jurors were doing just that by accessing the Department of Court Records online docket.

So last month, Judge W. Terrence O'Brien -- at the behest of the Academy of Trial Lawyers of Allegheny County -- signed an order temporarily blocking access to the electronic record during any civil jury trial.

Instead, anyone wishing to see the filings in an individual case will be directed to the chambers of the judge presiding over the matter to review records there.

"I did everything I could to minimize the impact to the public and the press," Judge O'Brien said. "The potential for prejudice to the parties outweighed the minimal restriction to public access.

"I balanced the two principles, and this is the best I could do."

While the decision is troubling to First Amendment advocates, Judge O'Brien said it was necessary.

"The file is available to anyone who wants to take the time to come see it."

John P. Gismondi, the president of the academy, said the issue of jurors having access to court filings has become more acute in recent years with the proliferation of smartphones.

"It's a larger concern because of the revolution that's occurred with technology," he said. "They've got a lot of free time on their hands. There's a lot of downtime sitting in the halls when you're on jury duty."

And because the electronic docket includes a lot of information that would never be admissible at trial -- motions on witnesses or evidence, or even settlement agreements -- a juror having access to it could have serious ramifications for a trial.

Judge O'Brien was able to cite one case that he had in recent years in which a juror accessed a court docket and saw that a defendant in a case had settled with a plaintiff. The juror reported that information to the rest of the panel, and the group planned to deduct that amount away from the plaintiff's award.

In the end, that case settled, the judge said, and he didn't learn of the violation by the juror until after the fact. No follow-up investigation was done.

"The jury was tainted by having knowledge of something they shouldn't know," Judge O'Brien said. "How often that happens is anyone's guess."

There is a presumption in the law that the jurors do follow the court's instructions, he continued, but, "We all know it's certainly possible they won't."

But Paula Knudsen, the director of legal affairs for the Pennsylvania NewsMedia Association said the proper way to enforce that is not through limiting public access to information.

"We believe the appropriate response to concern about juror misconduct is to regulate the jurors themselves," Ms. Knudsen said.

In some jurisdictions, she said, jurors are required to surrender their electronic devices during a trial. There are also potential sanctions against jurors for violating a court's order.

Judge O'Brien agreed those exist, but said that they are rarely used. He remembered one instance where juror misconduct resulted in that individual's jury pay being withheld. They receive $9 per day for the first three days and $25 per day after that.

Mr. Gismondi said that because there will still be access to the court file for the public, there is no problem.

"It's like in the old days before we had an electronic docket. The access is the same as it was 10 years ago."

But Ms. Knudsen disagreed.

"Practically speaking, it's difficult to get back to the judge's chambers," she said.

 

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