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Puerto Rico Bankruptcy: Audio Recordings?

posted by Melissa Jacoby

As noted as an update in the prior post, May 17 is the first hearing in Puerto Rico's PROMESA restructuring cases (which also have new case numbers). However much interest these cases hold for the professional bankruptcy world, they are of critical importance to Puerto Rico residents. The idea of a government unit being bankrupt is frightening, with the anxiety heightened when the extent to which one's elected officials remain in charge is unclear. Sensitive to the number of stakeholders and high public interest, the courthouse has overflow space reserved for the first hearing. But even a capacious courthouse imposes natural limits on the in-person population.

If the court released audio recordings of hearings for free on its website, as happened in the Detroit bankruptcy, that would provide a window into the federal court process that could help build trust and legitimacy. Ordering and using hearing transcripts is critical to many parties and their lawyers, but that process is not a feasible form of education and access for others. In addition to being prohibitively expensive for residents to acquire, especially on an expedited basis, written transcripts provide insufficient contextual cues for those less familiar with federal courts and lawyers.

Releasing digital recordings does not appear to be standard practice in the District of Puerto Rico. Might this be an opportune moment for an experiment, or at least an exception?*

The U.S. Court of Appeals for the First Circuit, which hears appeals from the District of Puerto Rico, offers digital audio of oral arguments. At this point, nearly all federal circuit courts distribute audio recordings. Even the U.S. Supreme Court releases audio, as well as free transcripts, although the audio time lag is not ideal. For additional context, consider these acts of the Judicial Conference of the United States, the policy making body for the federal judiciary:

  • In 1999, the Judicial Conference approved digital audio recording as a method of taking the official court record.
  • In 2005, recognizing that other recording devices were becoming obsolete and the more competitive pricing of digital equipment, the Judicial Conference removed the funding limitation the 1999 approval imposed on courts seeking to acquire digital recording equipment (see p12 of 2005 report).
  • In 2007, the Judicial Conference authorized a pilot project to make digital recordings of hearings available on PACER (see p12 of 2007 report). District courts participated in the pilot along with bankruptcy courts. Instrumental to the effort was J. Rich Leonard (see his comments here (p7)) - now a law school dean, but previously clerk of court for a district court, then a magistrate judge, then a bankruptcy judge, and also once a Fourth Circuit nominee.
  • In 2009, the digital recording pilot was extended and expanded (see p6 of 2009 report).
  • In 2010, the Judicial Conference of the United States endorsed a proposal to allow courts to provide access to digital audio through PACER at the discretion of the presiding judge (p9-10 of 2010 report). That report sparked consideration of digital recording in, for example, the Eastern District of Michigan Bankruptcy Court, which later hosted the Detroit bankruptcy.

Even if the Puerto Rico District Court released recordings for the PROMESA cases, court reporters would continue to be busy with transcript orders from the parties' lawyers - of whom there are many, to say the least. It would be great to see the District of Puerto Rico join the First Circuit and other courts by releasing audio recordings of hearings in this historic set of cases.

*A separate issue is whether journalists should be permitted to listen to hearings over the telephone, as some parties' lawyers do in some cases. Whatever its merits, that practice, on which judges are divided, raises policy and cost questions that after-the-fact audio access does not. I express no view on that here.

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