Courthouse News reported this week on the “land grab” in California’s local court systems. When the courts announced last year that they were killing the CCMS (California Case Management System), vendors pounced on the opportunity to provide contracted solutions in its place. CCMS was a project started by the California courts over ten years ago. It was intended to link all of the county and state courthouses together into a centralized docketing system. As Courthouse news reports, however,
The massive CCMS project was deep-sixed last year by the Judicial Council under pressure from the Legislature, after the Administrative Office of the Courts had spent $520 million in taxpayer money over ten years on a project that was nowhere near completion and carried a projected price tag of $1.9 billion.
Now that CCMS is dead, Courts are turning to the private sector to update their docketing systems, which languished while waiting for the new system. Three bidders have emerged as candidates for the new systems: New Mexico-based Justice Systems Inc., Texas-based Tyler Technologies, and Pennsylvania-based LT-Tech owned by Thomson Reuters (formerly West Publishing). According to Courthouse News, “The deals have three basic financial components, licensing and installation for millions of dollars, yearly upkeep for hundreds of thousands of dollars, and, a golden egg, the right to charge lawyers a fee, generally around $5, for every document electronically filed.”
That should scare you. When private companies take over these systems, they naturally try to monetize them – creating what Courthouse News calls the “tollroad” to legal information. As a result, the public access is damaged by “contracts that allow a software provider to control and exploit the public record.” This happened in Texas, when LexisNexis took over the docketing system in Bexar County. And Courthouse News tells of a similar story in Colorado: “In Colorado, for example, LexisNexis, owned by Reed Elsevier, was given control of mandatory, statewide e-filing, a true cash cow. It charged for e-filing documents, for serving them and then turned around and sold the same documents and data back to lawyers, in addition to special reports based on data filtering. The public and press were in practical terms shut out.”
Lexis and West have already been sued for reselling appellate briefs. They won, so you can expect this practice to continue and expand. This in itself is not a problem, but when private companies are the sole source for public record information, citizens are shut out.
According to the article, some counties, such as Merced, have structured the contract to allow the vendors to charge only lawyers who file. But, they note, there’s nothing to stop them from changing contracts later or allowing the vendors to resell the information.
Right now, a small number of companies control access to virtually all of the primary legal information in the United States. Thomson Reuters is the official publisher of much of the case law – as the private company “publisher” of the final court work product. Thomson Reuters also publishes about half of the official statutory publications, with the next largest publisher being LexisNexis. Now the scope is creeping into the county court level. Privatization of government work product means that citizens will need to pay for what their tax dollars created. They will have to pay to read the laws, and interpretation of the laws, that affect them. A tollroad to public documents is, and has always been, a bad idea.
One last note: the main purpose of CCMS was to connect California’s large and unwieldy system of local courts. When CCMS went down, so did the central filing system. These new vendors are simply recreating the old, disjointed system. Ten years and half a billion dollars later, California courts are no closer to being centrally connected, more efficient, or more accessible.