March 28, 2014
by Edward J. Boll III
Lerner, Sampson & Rothfuss, LPA – USFN Member (Kentucky, Ohio)
The pilot program to make digital audio recordings of courtroom proceedings publicly available online that began with two federal courts in the fall of 2007 has gradually been adopted by an increasing number of district and bankruptcy courts. In February 2014, U.S. Bankruptcy Judge Humphrey (Dayton, Ohio) implemented a program making digital audio recordings of court proceedings available on the internet through PACER. These recordings are available on a case-by-case basis, at the judge’s discretion, or upon specific request of a party in interest. Attorneys in a case or adversary proceeding may access the audio file one time with no charge via the notice of electronic filing email that is sent when an audio file is docketed in the case or adversary proceeding, and may also download the audio file for future access. Any other party wishing to download a copy of the audio file from PACER will be charged a fee of $2.40 per file. Previously, a party wishing to obtain a digital audio recording (CD) had to pay a $26 fee.
Digital audio recording has been an authorized method of making an official record of court proceedings since 1999, when it was approved by the policy-making Judicial Conference of the United States. However, in accordance with 28 U.S.C. § 735(b), “[n]o transcripts of the proceedings of the court shall be considered as official except those made from the records certified by the reporter or other individual designated [by the court] to produce the record.” Official transcripts must be prepared by a court-approved transcriptionist from a copy of the audio file maintained by the clerk. Often times you can contact the courtroom deputy to make arrangements to obtain an official copy of any court proceeding transcript. Counsel will not be permitted to present transcripts prepared from audio files taken off PACER as evidence in court proceedings. However, counsel who do not need an official transcript may download a copy of the audio file and have it transcribed for their own use.
Counsel and witnesses are cautioned to avoid introducing personal data and other sensitive information into the record, unless necessary to prove an element of the case. If private information is mentioned during a conference or hearing, counsel may move the court to seal, restrict, or otherwise prohibit placement of the digital audio file of the conference or hearing on the internet through the PACER system. It is the responsibility of counsel to notify the judge of their desire to restrict audio from the internet.
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