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Digitally signed by

Joseph H Zernik

Joseph Zernik DMD PhD DN: cn=Joseph H


Zernik, o, ou,
email=jz12345@ear
Fax: (801) 998-0917 Email: jz12345@earthlink.net; PO Box 526, La Verne, CA 91750 thlink.net, c=US
Location: La Verne,
California
Date: 2009.08.29
16:33:06 -07'00'

09-08-29 Request for access to court records, to inspect and to copy in SEC v BAC (1:09-cv-
06829), and related questions about Rules of the Court at U.S. District Court,
Southern District of NY

August 29, 2009

J. Michael McMahon, Clerk of Court


MANHATTAN FOLEY SQUARE COURTHOUSE
Daniel Patrick Moynihan
United States Courthouse
500 Pearl St.
New York, NY 10007-1312
(by certified mail USPS,
return Receipt, restricted delivery)

Mr McMahon:

I am a resident of Los Angeles County, California. I had interest in SEC v BAC


(1:09-cv-06829), and I got permission by the Honorable Jed Rakoff, presiding in
the case, to submit a letter regarding the settlement proposal by parties to the
case, now before the Court.

Therefore, I am for first time accessing records in your District, and I apologize
for my ignorance. I made efforts to access court records of the U.S. Court for the
Southern District of NY, to inspect and to copy, pursuant to Nixon v Warner
Communications, Inc (1978), and I was only partially successful. In that
decision, the U.S. Supreme Court re-affirmed the fundamental right to access
court records, to inspect and to copy. The Supreme Court found it to be
grounded in Common Law rights, older than the U.S. Constitution, and also in
the First, Sixth, and Fifth/Fourteenth Amendments.

I am also writing this letter as part of my efforts to document the state of such
rights in the various courts today, at the end of the dynamic period of transition
from paper to digital records. Today I believe that the last of the U.S. Courts,
including the U.S. Courts of Appeals, have installed Pacer and CM/ECF.
However, I have by now found out that the various Districts and the various
Courts of Appeals vary in their implementation of Pacer and CM/ECF platforms.

In part, I am trying to document to what extent the new customs, whatever they
are in the various Districts, are based in published Law and published Rules of
Court. My findings so far indicate that in the transition from paper administration
to digital administration, many rules were added, removed, or changed, but
many were never published in their new form – as practiced in reality, based on
the configuration of Pacer CM/ECF. The Rule Making Enabling Act 28 USC
§2071-7, clearly prescribed the procedures for updating the Rules of Court, and
the Clerk of the Court typically holds a central position in this function.
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In the case at hand, I noticed with great appreciation the care to detail by the
Court of the Honorable Rakoff, relative to the entry of Orders by the Court. It
reflected an effort to make the certification and authentication of such orders
clear and unambiguous, and visibly accessible to all. Not all share such
practices.

I spoke with three different offices of the court, the last of which was Mr Wolfson.
All persons were kind and tried to be helpful. However, I was unable to exercise
my rights. Furthermore, some of my questions, which fall on the “theoretical
side” were not the kind that staff is routinely used to answer. Therefore, Mr
Wolfson suggested that I address them in writing to you. I included here many
more questions than I ever asked by phone.

The questions below, and your answers to them, are directly relevant to the
letter I am to compose in re: Settlement now before the Court in SEC v BAC
(1:09-cv-06829). I would therefore be grateful if you could initially at least
provide an estimate when you would be able to complete the answers, or some
general view of the types of answers that may be generated in a phone call.

I will try to contact your office later this week in this regard.

1) Civil Docket:
My understanding is that the U.S. Court, Southern District of NY, like most
other U.S. courts, now keeps at least three separate and unequal dockets,
and various persons are assigned different access privileges:

a. Docket in the paper file


b. Docket in CM/ECF
c. Docket in Pacer

FRCP, Rule 79, says:

Rule 79. Records Kept by the Clerk


(a) Civil Docket.
(1) In General.
The clerk must keep a record known as the “civil docket” in the
form and manner prescribed by the Director of the Administrative
Office of the United States Courts with the approval of the
Judicial Conference of the United States. The clerk must enter
each civil action in the docket. Actions must be assigned
consecutive file numbers, which must be noted in the docket
where the first entry of the action is made.

a) Which of the three dockets 1) a) – c) listed above is/are the “civil docket”
referred to in the Rule 79?
b) I request access to inspect and to copy the writings that are the “form and
manner prescribed by the Director of the Administrative Office of the
United States Courts”. Is it available online somewhere?
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c) Is there any other basis in the law or in Rules of Court for the custom of
keeping such multiple different dockets with different access privileges for
different persons?

2) Action type and numbering


a) Action numbers in your District, like other Districts, are of the general
syntax <o:yy-tt-11111>, where-

O: is Office, here designated “1”


yy: is Year, here designated “09”
tt: is Type, here designated “cv”
11111: is Number, here designated “06829”
However, the practices relative to application of this general syntax vary
among the Districts:
i. What are the rules for designation of each of these parameters in your
District? Are they based in Law or Rules of Court?
ii. How many Office designations are used in the District, and subject to
which rules?
iii. What are the rules relative to year designation?
iv. How many types are used in your District, which are they by name,
and what the are the rules for their application I a given action.
v. What are the rules for assignment of the Number to a given action?
b) Case association – numbering of the actions, and implied rules relative to
assignment, shared records, evidence, calendars, etc

Question pertains to actions that have shared parties, shared subject


matter, shared evidence, or other features that require some coordination
that normally is not required between independent actions in the court.

i. How are such associations among cases implemented, if ever, in


case numbering in your District?
ii. What are the implications of designation of association between cases
in your District? E.g. rules in re: Assignment, reference, or other rules.
iii. What is the basis for such practices in the Law or Rules of Court?

3) Summons in general and in SEC v BAC (1:09-cv-06829) in particular:


FCRP, Rule 79 says:
(2) Items to be Entered.
The following items must be marked with the file
number and entered chronologically in the docket:
(A) papers filed with the clerk;
(B) process issued, and proofs of service or other returns
showing execution; and records required by the Director of the
Administrative Office of the United States Courts with the
approval of the Judicial Conference of the United States.
(C) appearances, orders, verdicts, and judgments.
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(3) Contents of Entries; Jury Trial Demanded.


Each entry must briefly show the nature of the paper filed or writ
issued, the substance of each proof of service or other return,
and the substance and date of entry of each order and judgment.
….
(b) Civil Judgments and Orders.
The clerk must keep a copy of every final judgment and
appealable order; of every order affecting title to or a lien on real
or personal property; and of any other order that the court directs
to be kept. The clerk must keep these in the form and manner
prescribed by the Director of the Administrative Office of the
United States Courts with the approval of the Judicial
Conference of the United States.

(d) Other Records.


The clerk must keep any other records required by the Director
of the Administrative Office of the United States Courts with the
approval of the Judicial Conference of the United States.

a) Summons as issued by the Clerk of the Court: I request the that the Clerk
of the Court provide the basis for the respective custom in the law, or in
the Rules of Court.

Summons as issued were not docketed in the case at hand in Pacer, and
I was told that the U.S. Court, Southern District of NY does not docket the
summons as issued in the two other dockets as well. I will have to ask
Plaintiff for a copy.

b) Summons as executed: I request that the Clerk of the Court provide the
basis for the respective custom in the law, or in the Rules of Court.

I was told that summons as executed are not docketed in any of the
dockets as well, only the service is noted as docketing text, but the
records themselves are not posted in any of the docket.

4) Stamps and NEFs for papers that are filed on paper by parties
I assume that all papers by parties that arrive at the desk of the clerk in
person or by mail are stamped with date.
a) Are any papers that arrive by parties in actions of the court not stamped
at all?
b) I assume you use “FILED” and “RECEIVED”, are they both electronic?
i. What are the Rules of Court relative to the use of FILED vs
RECEIVED?
ii. Is the use of non-electronic stamps allowed in the court?
iii. Is the alteration by hand of dates on the stamps allowed in the court?
iv. Who is authorized to stamp papers in the court?
v. Who is authorized to make entries in docketing sheets I the courts?
z Page 5/10 August 29, 2009

vi. Are NEF or any other notices issued in CM/ECF when a paper that
was filed on paper in court was entered in the docketing sheet by the
Clerk?

5) NEFs for papers that are electronically filed by parties, in general and in
SEC v BAC (1:09-cv-06829) in particular:
NEFs for electronically filed papers include the Proof of Service, which FRCP
Rule 79, (2)(b), quoted above, required to be docketed. However, NEFs are
not accessible in Pacer, and I was unsuccessful in my attempts to gain
access to inspect and to copy.
I requested to obtain the printouts of NEFs of papers filed by parties. It appeared
that several of the Deputies, and even law clerks were not clear about the
location and significance of the NEFs. Possibly – they are also used to the
current state of affairs that they are not accustomed to Proofs of Service
practice. However, when I directed them to the NEFs in CM/ECF they seemed
to be clear that I was NOT allowed to obtain copies of such records.

Mr Wolfson stated that the parties file paper copies of the NEFs with a paper
copy of the papers that they filed electronically. However, he was not aware of
the fact that those who are not you specific district CM/ECF authorized users
cannot see the NEFs, since such records were stripped from the original
electronic filings in Pacer.

a) Request to obtain paper copies of the NEFs (no need to copy the papers
themselves, I have them downloaded from Pacer) of all paper electronically
filed by parties in the case at hand.

There are less than a dozen papers in total, and I will contact the office of the
Clerk of the Court with cc details by phone. I am asking if I am allowed to
obtain the copies of the NEFs from paper court file in the first place.

b) Request to obtain digital copies of the NEFs of all papers electronically filed
by parties in the case at hand.

I am asking if I am allowed to obtain digital copies of the NEFs, e.g. in the


form that such NEFs were emailed in the first place, since such records in
their true original form are digital records. If I am allowed, I prefer to get
digital copies rather than paper copies. Payment arrangements will be cc by
phone.

c) Request to inspect the NEFs of all papers electronically filed by parties in the
case at hand, as separate right from the right to copy.

I am asking whether I would be allowed to inspect the NEFs in their true


original form (e.g. – the way that such NEFs are displayed on CM/ECF for
your district authorized users) from a terminal at the court site, if I come to the
Office of the Clerk of the Court during business hours.
z Page 6/10 August 29, 2009

d) Request for references to Law or Rules of Court that are the foundation for
whatever the practice is in your district relative to 3) a) - c) above.

6) Rejection of papers filed by parties/striking papers off the record


I am readily familiar with Discrepancy procedures.
Question pertains to any practices at the District Court that would result in
papers, after being conveyed into possession of the Clerk of the Court, not
being stamped, not being docketed, directives issued verbally by a judge or
a magistrate to the Clerk of the Court, pursuant to which such papers are
denied any mention in the docket, and no record is generated in the court file
in Pacer or CM/ECF of the disappearance of such papers from the action.
If such procedures exist in your District, are they based on published Law or
Rules of Court?
7) NEFs for Orders entered by Court
The U.S. Constitution, Art. IV §I declares:
Full faith and credit shall be given in each state to the public
acts, records and judicial proceedings of every other state. And
congress may by general laws prescribe the manner in which
such acts, records and proceedings shall be proved, and the
effect thereof.

By the U.S. Congress Act of May 26, 1790, it is provided:

That the act of the legislatures of the several states shall be


authenticated by having the seal of their respective states affixed
thereto: That the records and judicial proceedings of the courts
of any state shall be proved or admitted, in any other court within
the United States, by the attestation of the clerk, and the seal of
the court annexed, if there be a seal, together with a certificate of
the judge, chief justice or presiding magistrate, as the case may
be, that the said attestation is in due form. And the said records
and judicial proceedings, authenticated as aforesaid, shall have
such faith and credit given to them, in every court within the
United States, as they have, by law or usage, in the courts of the
state from whence the said records are, or shall be taken.

NEFs include the attestations by Clerk of the Court in digital court file, and
therefore are critical part of Court records. NEFs also include the Proof of
Service or Certificate of Mailing by Clerk respective to such orders. Therefore,
such NEFs are critical part of Court File.

It was not clear to me at the end what the practice was relative to the NEFs for
Orders filed by Court, and whether paper copies of the NEFs are docketed in the
paper file of the court. It appeared that such was not the practice. It was clear
that I was unable to obtain any copies of such NEFs in any form.

a) I request to know what the practice is relative to docketing of NEFs of Orders


by the court in the three dockets a) – c) listed above, and what the foundation
is for the practice of your District in the Law or Rules off Court.
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b) I request to exercise my right to inspect the NEFs for Orders filed by the
Court, and for the foundation of whatever the practice is in your District in
Law or Rules of Court.

The question is whether I would be allowed to inspect the NEFs in their true
original digital form, e.g. – from a terminal in the Office of the Clerk of the
Court – the way they are displayed in CM/ECF for users of your own District,
if I come to the Office of the Clerk of the Court during business hours.

c) I request to exercise my right to copy the NEFs for the Orders filed by the
Court, on paper and/or in digital form, and for the foundation of whatever the
practice is in Law or Rules of Court.

The question is whether I would be allowed to copy the NEFs for the Orders,
either on paper, and/or in their true original digital form, e.g. – from a terminal
in the Office of the Clerk of the Court – the way they are displayed in
CM/ECF for users of your own District, if I come to the Office of the Clerk of
the Court during business hours.

8) Filing and entering by the Clerk of the Court of unsigned Orders and
Judgments
Is there such practice in your District of filing and/or entering orders and
judgments by the Clerk of the Court that are not signed by a judge, and are
posted online in Pacer and/or CM/ECF, and are stated in the docketing sheet
as “unsigned, unpublished” orders or judgments, and the final outcome of a
court action?
Is so, are such practices based in Law or Rules of Court?
9) Removal of papers and orders from public view in Pacer and/or
CM/ECF
I am readily familiar with sealing procedures for paper records, that are
stipulated by Law and Rules of Court. The question pertains to removal of
papers or orders from public view on Pacer or CM/ECF, outside of cases
where papers were sealed by court procedure.
a) What is the practice in your District regarding removal of papers or orders
from public view on Pacer?
b) Is there such practice of never filing papers or orders for public view in
the first place?
c) Are such practices founded in Law or Rules of Court?
10) Digital signatures in docketing sheet of electronic dockets in Pacer and
CM/ECF, and hand signatures in docketing sheet of paper court file.
a) Request to inspect and to copy hand signatures that are the attestations
in the paper court file of papers and Orders by the Court.

The question is whether or not you keep a docketing sheet with the paper
court file, and whether the docketing sheet includes hand signatures of
the clerk who entered the notes.
z Page 8/10 August 29, 2009

Also- Are the same docketing notes, by the same clerk, and same
signature as the one who entered digital docketing notes?

Also- Is there a hand signature of the Clerk attesting on the face of the
record in the paper court file.

b) Request to inspect and to copy digital signatures that are the attestation
in the electronic court file in the docketing sheet.

The docketing sheet in Pacer shows the initials of the clerks, and I am
informed that these initials correspond to full digital signatures in the
docketing sheet in CM/ECF. However, any tags that would have allowed
to ascertain the authenticity of such digital signatures were stripped from
the Pacer system.

The question is whether I would be allowed to inspect and to copy the


docketing sheet in CM/ECF if I show up in the Office of the Clerk of the
Court during business hours.

Additional question is for the basis of the custom in your district, whatever
it is in the Law or Rules of Court.

11) Other reports in Pacer or in CM/ECF


Your District provides public access in Pacer to reports such as Calendars,
Docket Activity Report, and Related Transaction Report. The various districts
vary in which reports they allow public access to in Pacer.
Question is –
a) Which reports are accessible in CM/ECF in your District?
b) Would I be allowed to access such reports as are accessible in CM/ECF if I
come to the Clerk’s Office during working hours?
c) What is the basis in the Law or Rules of Court for the practices as they are,
for which reports are allowed public access and which are not in either Pacer
or CM/ECF.
12) Other reports and access privileges to such reports in your District
a) What other reports are available in CM/ECF, in Pacer, or in any equivalent
system, that are accessible only in the Judicial level in your District.
Request is for: (i) The list of the names of such reports, (ii) Short description
of the substance of the report, such as would appear in an overview manual,
and (iii) The name of the system or access portal, (iv) The general
description of class of persons allowed access to such reports.
b) What is the basis in Law or Rules of Court for the practice as described in 7)
a).
13) Access to U.S. District Court records by the respective U.S. Court of
Appeals
a) Request is for information which level access is permitted to the Justices of
the respective U.S. Court of Appeals from either Court of Appeals location or
z Page 9/10 August 29, 2009

otherwise, and the foundation for the practice of your District, whichever it is,
in the Law or Rules of Court.
The question pertains to which level access is provided through terminals in
the respective U.S. Court of Appeals: Pacer, CM/ECF, Judicial level access?
14) Pacer Dictionary and rules pertaining to docketing, Docketing Activity
Report, Related Transactions Report, and related issues.
a) Dictionaries
Various functions in Pacer provide variables where the input are words that
are commonly used in natural language, but in Pacer or CM/ECF, such use
is restricted as valid values that may be entered in given variables. For
example, in Docketing Activity Report, a paper can be designated as
“Motion”, but it can also be designated as “Misc”, however, I assume that if
you tried to designate it “Green”, the system would reject that value as invalid
for the variable.
Request is for access to inspect and to cop the Pacer and CM/ECF
Dictionaries of words that are permitted by the programs as valid values to be
entered in the various variables, and their specific rules of use.
b) Accountability and quality assurance for true and correct use of Dictionaries
in docketing.
i. What are the practices in your district regarding accountability for true
and correct use of Dictionaries in docketing?
ii. Are there any conditions where values can be entered for a given
variable, which are meaningless, and are accepted by the programs?
For example, if “Motion” may be an acceptable paper type, “motion”
may not. If the program allowed “motion” to be entered, it would have
no meaning for the program.
iii. What is the basis in Law or Rules of Court for such practice?
iv. Is the public allowed comments on errors in the use of such
Dictionaries in docketing?
c) Rules of court in re: assignment of terminations, and missing adjudications
i. What are the rules in your District regarding assignment of Related
Transactions and Terminations?
ii. What are the rules in re: missing adjudications?
d) Reports that list adjudications
The reports that are publicly accessible in Pacer conspicuously fail to list the
adjudication of the motion themselves – Granted, Denied, Moot, etc.
Request is regarding other reports that may list the adjudications, and the
basis for their constructions and denial of public access privileges, and the
basis for such practices in Law or Rules of Court.
z Page 10/10 August 29, 2009

I apologize for the lengthy requests, surely you realize the significance of the
questions. In fact, not being a lawyer, I was astonished by the fact that in most
courts I was the first one ever who made such requests. I believe that the Common
Law right to access court records, to inspect and to copy, is not only a right, but also
a duty. A public that does not perform his duties is to blame for any deficiencies in
the system as we see it.

Joseph Zernik

CC:

1) Counsel for SEC in SEC v BAC (1:09-cv-06829)


Plaintiff: Securities and Exchange Commission represented by Joseph O. Boryshansky
Phone:(212) 336-0113
Fax: 12123361348@efaxsend.com
Email: boryshanskyj@sec.gov
Plaintiff: Securities and Exchange Commission represented by Maureen F. Lewis
Phone:(212)-336-0125
Fax: 12123361317@efaxsend.com
Email: lewism@sec.gov
Plaintiff: Securities and Exchange Commission represented by David Rosenfeld
Phone:212-336-0153
(by email and by fax)

2) Counsel for BAC in SEC v BAC (1:09-cv-06829):


Defendant: Bank of America Corporation represented by Shawn Joseph Chen
Phone:(202)-974-1552
Fax: 12029741999@efaxsend.com
Email: schen@cgsh.com
Defendant: Bank of America Corporation represented by Lewis J. Liman
Phone:212-225-2000
Fax: 12122253499@efaxsend.com
Email: lliman@cgsh.com
(by email and by fax)

3) Court of the Honorable Jed Radoff


Courtroom: 14B
MANHATTAN FOLEY SQUARE COURTHOUSE
Daniel Patrick Moynihan
United States Courthouse
500 Pearl St.
New York, NY 10007-1312
(by USPS, first class mail)