Thirteen federal district courts were supposed to begin livestreaming audio from selected civil proceedings directly to YouTube by the end of February as part of the two-year pilot meant to test the feasibility of offering public access to the courts online, according to the Administrative Office of the U.S. Courts.
But the coronavirus has hampered the program's rollout in most of those districts, judges and court personnel say, with only the Northern District of Georgia, the Eastern District of Missouri and the Northern District of California managing to stream a handful of proceedings so far.
"The pandemic has made everything we do take longer and be harder," said U.S. District Judge Catherine Perry of the Eastern District of Missouri, one of the few judges who has participated in the program.
But despite the delays, the technology has turned out to be seamless, judges and court staff say, and the hearings that have been streamed have succeeded in giving the public greater access to the courts, with one hearing in Georgia drawing over 40,000 listeners.
One reason for the sluggish pace of the rollout is that the pandemic has already forced federal courts to make nearly all their mostly virtual proceedings available to the public via platforms like Zoom or by teleconference. That effort has placed "significant strains" on IT staff, according to the Administrative Office.
Keeping courts operating during the pandemic has also strained courtroom deputies, who are the ones largely tasked with administering the pilot, according to Kim Leininger, chief deputy clerk of the U.S. District Court for the District of Kansas, one of the districts participating in the program that has yet to livestream any proceedings.
"We were just kind of reluctant to put one more thing on them at this point, because it's been really stressful for them to have to just reinvent how we conduct court business," she said.
Not all courts have had a delay in getting the pilot project off the ground. The Northern District of California audio streamed its first hearing on Feb. 18, according to Nicholas Jackson, the district's staff attorney and communications officer. It has five streamed hearings under its belt.
But representatives for the Eastern District of Tennessee and the Western District of Pennsylvania, both of which are also part of the program, confirmed to Law360 that they have not audio streamed any hearings.
Other pilot courts in the Eastern District of Washington and the districts of Rhode Island, Montana and the District of Columbia did not respond to requests for comment, but none of them have reported any livestreamed hearings, according to the Administrative Office.
The pandemic has also limited the number of hearings available to be streamed, say court personnel.
The Judicial Conference's Committee on Court Administration and Case Management, which oversees the pilot, places strict limitations on which proceedings are eligible. Federal courts can only stream audio from civil proceedings that involve an issue of public interest and that don't include witnesses, jurors, or sealed or confidential materials, according to the Administrative Office. All parties involved must also consent to the streaming.
But fewer court proceedings are taking place because of the pandemic, and some judges are likely issuing rulings based solely on briefs without holding live hearings, said Judge Perry. Fewer live hearings mean there are fewer that meet the pilot's requirements.
"There's a chance that COVID has reduced the number of hearings where you would be eligible for this," Judge Perry said.
Judge Perry has so far livestreamed three status hearings to YouTube, all involving the U.S. Department of Justice's consent decree with Ferguson, Missouri, which grew out of the police killing of Michael Brown, according to the judge.
"This Ferguson case really fits the bill, and it's something where I really want the public to have as much access as they can," Judge Perry said.
But she acknowledges that finding other cases that meet the requirements has been difficult, in part because of the lack of in-person communication between judges resulting from the pandemic.
She and her colleagues would likely discuss a pilot project like this before and after meetings at the courthouse, when one judge might say to another, "You should try this. It's working well," Judge Perry said.
But her colleagues haven't been to the courthouse in over a year.
"That kind of interaction hasn't happened, and I think that has slowed [the pilot] down," she said.
The biggest impediment to the project, however, may be that all the hearings being conducted by video- and teleconference have siphoned off some of the urgency of the pilot, which now seems "a little bit duplicative," Leininger said.
"It's a little bit strange that here we're offering this audio streaming, but right now a lot of courts have streaming available of all of their hearings," she said.
The pilot program does differ from proceedings being held via Zoom and Microsoft Teams, the Administrative Office pointed out.
The use of those platforms is an interim practice granted temporary approval under the CARES Act to provide public access to the courts during COVID-19. The pilot, on the other hand, was authorized before the pandemic began and is intended to test how livestreaming audio works for litigants, counsel and the public in the longer term.
The pilot project also lets many more people listen in on court proceedings than do platforms like Zoom, which limit the number of participants and often require passwords and access codes, said Judge Perry. An unlimited number of people can easily tune in on YouTube.
And while it may have gotten off to a slow start, the pilot has experienced some success, judges say.
When U.S. District Judge Timothy Batten of the Northern District of Georgia audio streamed a December hearing in one of the cases growing out of the 2020 presidential election, the court's YouTube stream drew over 40,000 listeners, according to the judge.
"I went from zero notoriety to 40,000 listeners in one day," Judge Batten said. "We were very pleased that that many people were listening in."
That hearing has been the project's biggest triumph, but others in California and Missouri have also attracted more listeners than would usually attend an in-person hearing, say court personnel.
More people listened to Judge Perry's Ferguson status hearings on YouTube than listened to earlier hearings available via teleconference, she said.
And the number of people listening to the Northern District of California's hearings on YouTube peaked at between 50 and 70 listeners, according to Jackson.
"During routine hearings, it's probably unrealistic to look for hundreds and hundreds of viewers," said U.S. District Judge Audrey G. Fleissig, who is the chair of the Judicial Conference's CACM Committee. "But in high-profile cases, audio streaming can greatly increase public access. Even if it's 50 people, that's typically more than would show up in court for some proceedings."
The project has also been largely free of technical issues, according to all three courts that have successfully livestreamed hearings. Both Judge Batten and Judge Perry described the experience as "seamless," something Judge Perry said wasn't true of the hearings she held via teleconference before the pilot.
So Judge Batten is unconcerned about the speed of the program's rollout.
"This is precisely the pace I expected," he said. "Changes like this move more slowly than a lot of people would like."
And both he and Judge Perry remain optimistic about the program despite any hiccups.
"I think anything we can do to improve public access to what we do is good for the judiciary," Judge Perry said.
She plans to continue livestreaming future status hearings in the Ferguson case as well as looking for more proceedings that are eligible to be streamed, she added.
Other judges may soon be doing the same. At its session in March, the Judicial Conference approved expanding the pilot to include the U.S. Court of Federal Claims and some bankruptcy courts, according to the Administrative Office.
"I'm very optimistic that over the upcoming months we'll see increasing numbers of livestreamed proceedings and additional courts joining, so it's moving in the right direction," Judge Fleissig said.
And, ironically, the same pandemic that has slowed the program's start may in fact end up increasing enthusiasm for it in the end, Leininger pointed out, especially once the CARES Act's authorization for Zoom proceedings expires and the audio streaming pilot becomes the only avenue to provide remote public access to the federal courts.
Both the public and court personnel have grown accustomed to listening to hearings through video- and teleconference during the pandemic, Leininger said.
"And I think everyone's going to miss it when that ends," she said.
--Editing by Brian Baresch and Alyssa Miller.
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