CALI 2012: Collecting State Trial Court Files

Presenter: Rachael G. Samberg – Stanford Law School

State court records tend to be in disarray

Texas Task Force: tried to search for documents regarding a 19th century murder trial.  TX Supreme Court appointed a task force to assess status and develop protection plan for state court documents.  Distributed survey to all 254 counties – only 17% had records dating back to the Republic (1836-1845).  County courts did not have funds to digitize or preserve these documents.  ”Not every file contains a famous trial, but they’re all valuable”.  Cal. Rule of Court 10.855 – “establishes a program to preserve in perpetuity for study by historians and other researchers”.

Legal lessons: Interesting historical developments, how property claims were resolved, statutory construction, lawyering process, discovery tactics, views on advocacy, jury instructions, and litigation costs.  Rich social history.

Social history in trial court records: lives of former slaves, lives of women.  These are often the only records of these historical events.

Files in jeopardy nationwide: clerks running out of space, lack of funds to digitize or care for aging records, retention schedules may require destruction, results in loss of history.  States are starting to take notice!

Who’s involved in state trial court record preservation?: court clerks, state archives, state historical societies and universities, state supreme court judges, state bar associations.

Why are so many people involved?: state statutes, rules of courts, records retention schedules, internal policies at state archives.  Need to look beyond the letter of the law.

Making sense of preservation paradigms: mandatory or permissive destruction, question of who can request/take the files.  CA has a permisse program based on category and record creation date.  CA also permits unaffiliated cultural institutions to acquire documents given approval by the superior court.

California’s Paradigm: permissive destruction, sampling program, records are available for transfer to unaffiliated institutions, notice of any intended trial court record destruction, records management clearinghouse.  For 1910-1950 keep 10% plus 2% of a subjective sampling of records slated for destruction.

When an institution in CA requests that documents slated for destruction be transferred they must agree to make them reasonably accessible.

Other CA trial court records collections: Huntington Library, Berkeley’s Bancroft Library

The state keeps of master list of interested institutions and notifies them when documents are scheduled to be destroyed

What can we learn and teach from these cases?: lessons in CA contract law and civil procedure, great examples for classroom instruction.  Many of these cases make the news, you can supplement the court files with secondary sources to give students more context of the case.  Excellent examples of language, terms and conditions.  Also useful for teaching legislative history and statutory construction.

Future plans: Digitization requires funding.  Law schools, however, can work together to collaborate on collecting these documents.  Raise awareness and lobby for change.

Working groups?  Web-based collection development?