Several electronic filing/electronic access items emerged last week and this post will talk about three of these items. First, the Federal Circuit ruled on the PACER litigation which we have discussed before and which has a tangential impact on the fee structure at the Tax Court. Second, the Tax Court issued a press release providing additional information regarding remote practice procedures. Third, the Tax Court issued videos depicting the manner in which calendar calls and trials will proceed in the remote environment.
On June 2, 2020, I wrote a post about public access to Tax Court documents. That post was written in part to provide a link to a longer article on the subject I wrote with Maggie Goff and published in Tax Notes on May 4. It was also written to celebrate the new fee schedule adopted by the Tax Court for document requests. The article that Maggie and I wrote had its origins, at least in part, in litigation pending in the Federal Circuit on the amount charged for access to documents in the PACER system. The case in the Federal Circuit resulted from a decision by the Court of Federal Claims that some of the uses of the money the Administrative Office of the Courts made from PACER were appropriate and some were not. This left both parties unhappy as discussed in a post from The Hill here. On August 6, 2020, the Federal Circuit upheld the Court of Federal Claims determining that it got the decision just right. For those interested in understanding PACER and its history, understanding the Little Tucker Act and understanding the nuances of how the federal judiciary spends unappropriated money, the decision is worth reading.
On August 6, 2020, the court issued a press release with links to several documents designed to guide practitioners as the Court shifts to remote practice. With all of the material in the links, there is a lot to read and digest as the Court makes this shift. Included in the links are a Practitioner’s Guide, a Petitioner’s Guide, a presentation of documentary evidence guide, a guide for subpoenaing witnesses and a revised Administrative Order.
In the past parties were required to exchange documents in advance of trial and the failure to do so provided a theoretical basis for excluding documents not properly and timely exchanged. Now, the Court wants these non-stipulated documents marked as trial exhibits with exhibit numbers. For a court with 70% pro se petitioners this presents an even greater challenge than the prior rule regarding exhibits. The guidance not only provides information about timing and labeling but also format and size. Practitioners need to be prepared well in advance of trial for these rules governing documents to which the parties cannot stipulate. Getting all documents into stipulations becomes even more important.
Tax Court Videos
Thanks to Amy Spivey the relatively new clinic director at the relatively new clinic at Hastings Law School in San Francisco, I learned that the Tax Court put new videos up on its web site. You can access the videos here. I was a bit disappointed when I saw the new Tax Court web site a couple weeks ago and noticed that the previous video it had for pro se taxpayers was missing. One of the first things I did back in 2007 as a new clinician at Villanova was to write the script for that video. If you listened closely to that video you learned that the fictional taxpayer lived in Villanova. So, I had a soft spot for it. The new videos take the viewers through the Tax Court’s virtual calendar call and trial. Unlike the prior video which was performed by professional actors, these are performed by Tax Court personnel. The videos are a little clunky but I expect the experience of virtual calendar calls and trials to be a little clunky. So, they seemed perfect to me.
The Federal Circuit’s decision upholds the lower court decision placing limits on the use of funds from PACER. The fact that the Administrative Office of the Courts spent some of the PACER funds on inappropriate items does not necessarily mean the fees are too high. PACER could be improved to allow for a better search function. Other permissible expenditures also exist. If the Administrative Office spends the money correctly, it need not lower the fees, though lowering the fees would be welcomed. The Tax Court’s press release provides needed guidance as we head into the fall trial sessions next month. We would welcome posts from readers who encounter the early electronic trial and calendar provisions. Adjusting to remote practice will take effort from all sides. Kudos to the Tax Court for putting up this video and giving us a chance to see what will happen when the Court starts trying cases again. It will be an interesting adventure.