Use of the RECAP browser extension when accessing PACER

Question

There are benefits to using the RECAP browser plugin when accessing information in PACER (Public Access to Court Electronic Records):

• not paying to access PACER documents that have been cached by RECAP
• you contribute to the Internet Archive in the process
• it improves the quality of the filenames files are stored under

Are there downsides to the use of RECAP, and what are they and which audiences would be most impacted by them?

Answer 1

I haven't used the extension, but here are the concerns I would have:

1. Does RECAP detect and handle documents filed under seal? Under some circumstances, IIRC, Pacer gives certain attorneys access to documents sealed from the general public. If you access these sealed documents through PACER and thereby submit them to the RECAP public repository, you have violated the Court order sealing the documents and might well be found in contempt.

2. It is not unheard of for a Court to order a document replaced by a corrected version; this is most common when a document was inadvertently filed with information not redacted that should have been. As long as nobody but the parties and their lawyers have accessed it, this can prevent that information from being public. If you log on to PACER and see your client's personal information...you can no longer keep it private by asking the Court for that remedy, because you just submitted it to a public repository. Enjoy your malpractice suit.

3. Does the use of RECAP constitute a waiver of work product protection? Under some (admittedly limited) circumstances, your use of PACER might constitute attorney work product, which would ordinarily be protected from disclosure in a manner similar to a privilege. Revealing your research pattern to a third party could waive that protection.