I read about Recap, and of course immediately downloaded it to try it out. In case you haven't heard, it is the Firefox plug-in that comes alive when you use Pacer, and sends a copy of any filing you download to the Internet Archive to improve public access. Recap already has its fans and its detractors.
A couple of points should be mentioned. The first is that the Recap plug-in only works if you log in to Pacer. If you log in through the ECF system as a filing attorney, and download a pleading that way, no Recap copy is sent to the Internet Archive. The second is that the Recap plug-in only works if you log in to Pacer using Firefox. The third is that usually you do not have to download copies of your own filings, since you uploaded them and had to have the pdfs to do it. All obvious, practical points, which lead to me to the conclusion that to "Recap" a pleading is usually going to be a conscious decision for somebody. That is, someone has to conclude that the case filings have importance or public interest, and should have easier public availability, and then log in to Pacer using Firefox with the Recap plug-in. I don't think it is likely that run-of-the-mill pleadings are going to be "Recapped" by accident. For that reason, I think the privacy concerns are overblown.
Now after using it, however, I'm wondering what's the point of it? Or to put it bluntly, what's in it for me, or for my clients?
The thing is, you can't go to the Internet Archive and do a text search of a law library of Pacer downloads. That's deliberate, as the "Recap Repository" makes clear here.
Okay, so if I want to run a search, I've got to use Pacer, and I guess that means I would have to go to each individual Pacer site, log in, and run the search. And maybe then I might see some Recap icons on the docket sheets that would tell me that there is a free copy available. That makes no sense from a time management point of view.
Anyway, I get this uneasy feeling that all Recap would accomplish is to allow other counsel in federal cases to get free copies of pleadings I download. That's not a very compelling reason to use it.
One suggested benefit of Recap is that it would allow an attorney to view a document through Pacer a second time without having to pay the per page fee again. I have to agree that that could be a benefit; however, usually it is just as easy to save a copy of the pdf on your own hard drive for future reference. In complex, multi-party litigation, use of Recap could effectively create a cost-free pleadings archive for the litigants, organized by the Pacer docket sheet itself. Maybe all counsel could come to an agreement to download pleadings through Pacer-Recap. I can't see that anyone would undertake it on their own.
To the extent one's client could view even public filings on Pacer as sensitive, the client would probably object to the pleadings being copied wholesale to the Internet Archive. Even though Pacer is open to the public, the requirement to have a Pacer account and pay the 8 cents a page viewing fee, discourages casual access. All those $2.40 fees add up.
Journalists, political "opposition research" operatives, and other gadflys will be glad to get free access to court pleadings through Recap, but the people paying the bills probably will not like it.