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Say that you’re involved in a court case — as a plaintiff, as a civil defendant, as a criminal defendant, or perhaps even as a nonparty. The court case may well appear in Google results when people search for your name, both on the government’s own sites and on sites such as findlaw.com, casetext.com, or leagle.com. (Lexis and Westlaw versions of the case, which cost money, don’t show up on Google results; Google Scholar versions don’t show up in ordinary Google searches.) Can you do anything to get these taken down?
The answer is: Maybe, if you ask nicely and have what a judge thinks is good reason (and if the opinion is non-precedential) — but maybe not. It seems to be left largely to judges’ unguided discretion.
1. A few weeks ago, for instance, a federal district court judge (Eric Vitaliano of the Eastern District of New York) wrote an opinion rejecting a Social Security ligitant’s request to get an early opinion taken down from the court’s site (see also Eric Goldman’s post on this case):
Likewise, in In re de Groote (Bankr. D.D.C. 2008), the court denied a “motion to remove memorandum decision from court’s website,” “because by statute the court is required to make its written decisions available to the public in electronic form.” In Yongo v. Ashcroft (1st Cir. 2004), the court refused to remove an asylum decision from a court site, though without a categorical statement that such removal is impermissible:
And I’ve seen many other cases where such motions to remove have been denied without explanation. See Bennett v. NTSB (4th Cir. 2003); Paredes v. Attorney General (11th Cir. 2007); Elhadidi v. Secretary of Health & Human Servs. (Ct. Fed. Cl. 2013); Gradinger v. Washington Nat’l Ins. (11th Cir. 2007); In re Zaffiro (Wisc. Ct. App. 2006); In re Bush (Pa. Super. Ct. App. 2016); Smith v. Smith (Wisc. Ct. App. 2006); United States v. Hart (8th Cir. 2005).
2. On the other hand, sometimes courts do remove opinion from their web sites.
A. Here, for instance, is a letter that led the court in Correctional Medical Care, Inc. v. Gray (E.D. Pa. 2008) to remove an opinion (as with all of these, a non-precedential opinion, which wasn’t designated for official publication) from the court’s site:
The court expressly refused to remove the opinion from PACER, the subscription-based service that can be used to access court files if one wants to access them; and the opinion is also available on Westlaw and Lexis, two even more expensive pay services, as well as two free services, casetext.com and courtlistener.com. But the court agreed to remove the opinion from its own site.
B. Here is one successful letter from a bankruptcy case (In re Granoff (E.D. Pa. 2013)):
C. Or consider this letter sent to the court in 2015 as to State v. Touchette (Mich. Ct. App.), a non-precedential opinion that held that a second-offense drunken-driving case against the defendant could go forward (despite defendant’s Fourth Amendment objection):
The court removed the opinion from its site, though it’s still available on Westlaw. And see also Hicintuka v. Holder (5th Cir. 2009) (removing a non-precedential opinion in an asylum case, based on a claim that the availability of the opinion could endanger the asylum seeker, who had been denied asylum and who would presumably be back in his home country); McPherron v. Unemployment Compensation Bd. of Review (Pa. Commw. Ct. 2008) (sealing opinion altogether, as well as removing it from the site).
3. What if you also want to get the opinion removed from other Google-searchable sites, such as findlaw.com, casetext.com, and the like? Even if a court takes down the opinion from its site, the other sites are under no obligation to do the same. The court probably won’t even try to order them to do so (indeed, in the Granoff case, it expressly declined to do so). And I think any such attempt to order a site to remove a formerly public opinion would be unconstitutional: The government generally can’t restrict people from communicating information that was once a part of public record. See, e.g., Florida Star v. B.J.F. (1989).
But some of the sites might be willing to echo the court’s decision: A site might take the view that its job is to faithfully reproduce those things that the court is willing to make public, and once an opinion is no longer made public by the court, it makes sense for the private site to follow suit. (Google Scholar, for instance, also omits the opinion in Touchette’s case, noting that “As a courtesy, we have removed 1 sealed court opinion(s) from this page” — though that is somewhat imprecise, since the opinion is not technically sealed but just taken down from the court’s site.) On the other hand, other sites might believe that their task is to provide the maximum possible information for searchers, in which case they may keep the opinion up. Leagle.com seems to take this view, for instance, at least judging by its About Us page.
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None of this tells us, of course, what courts should do. I think the courts should not be able to stop private sites from displaying certain decisions that have been made public in the past; but a court’s control over its own site is a different matter. On one hand, I see the arguments for having courts provide maximum information for the public, especially since each opinion can provide insight on what the legal system is doing. Moreover, why should courts help people hide information from others (prospective employers)?
On the other hand, I see the arguments for courts deciding that they don’t want to help reveal to the public information about private people that they see as no longer really relevant. After all, a court often has the discretion to reveal more or less in its opinion — it can often decide non-precedential cases without a published opinion at all, or publish an opinion that uses pseudonyms, or an opinion that declines to mention certain information. It likely should also have the discretion to change its mind, though that doesn’t tell us how it should exercise that discretion in any particular case. (Also, even if a court has a statutory obligation, under some state or federal rule, to make its decision available to people who want to look it up specifically, I’ve seen no statutory rules that require courts to make their decisions available in a way that shows up on Google searches.)
I also see both the arguments for leaving this as a highly discretionary decision and the arguments against that. Discretion leaves courts with the flexibility to have a strong presumption in favor of publicity and depart from that only in cases where the particular details suggest that certain information isn’t really important and is potentially harmful to the people involved. On the other hand, it also virtually ensures that similar cases will be routinely treated differently simply based on which judge happens to decide the case (or which day he happens to decide it).
In this post, though, I don’t aim to resolve these questions — just flag them, and flag the reality that in our system courts are making such decisions, and sometimes making them in favor of removal and sometimes against.
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