my parents again for the new case i'd like to reserve five minutes of my time for a battle so we believe the preliminary injunction in this case aired in many respects but the point i'd like to talk about today is the idea that access of eight business hours doesn't create a first amendment problem oh let's just talk about procedure we where you are right now that i guess should we that looks like there was going to be a hearing yesterday eleventh final hearing at which the parties will give closing arguments and any answer any further questions from judge guilford so should we wait to decide the preliminary injunction ruling until after the district court issues the ruling on the merits  what's your position we anticipated this question will probably come up and our research indicates that i think the question on our minds was will this appeal be rendered moot by  however we don't see anything to indicate that it's mood right now before a final judgment and we also take into account huge issue resources what are you recommending what's your position and what's your authority for it injunction in this case we believe it will provide guidance to proceed without waiting for the merits yes why what can skim your reason why because we believe an opinion from this court will provide guidance to judge guilford as he deter makes a final determination in this case the merits and we believe it may be some time we don't know when he'll issue a final ruling in this case and we believe he erred in denying the preliminary injunction in this case we believe that th concept that delaying access for eight business hours is per se constitutional violates circuit precedent is contrary to law in other circuits and it's a business hours is it within the same day or not within the same though a business out of business hours bleeds into the next day it could be the same day it could be the same day but in many instances it will not be the same day on a court that's open  we're back to the statistics in the data and everybody has their own very interesting way of looking at it and i asked you previously about the delays that you are experiencing in the case and in this case i think you've been asserting that forty nine percent of civil unlimited complaints were not available the business day they were received and saw let me hope will be more successful this time  than the last time what percentage of newly filed complaints do you have access to the same day they were fi now or in orange county right now the basis of this record yes on the basis of this record the percentage that we had access to was just over half based on what what do you point me to where in the record that she talks about tracking that they did that we did in to determine the delays and we based our delays entirely on the court's own data we looked at the time according to the court's records that a case was received and we looked at the time that a case that the that a payment receipt was issued and per juliana's declarations and per the court's own declarations the court's practice was to provide access to that case approximately fifteen minutes after a payment receipt was issued but we what we measured was the delay we didn't count that we measured from the time a complaint was received until the date what percentage of newly file complaints do you have access to within forty eight hours for two business days of when they were fi within two business days it's it's going to be a relatively small percentage again i'm going to restrict myself to the record to the record on this but i'd like to then answers from the record here and then so currently we have a motion for summary judgment decision that says that delays of one calendar a day are per se ok so in our trial briefs we provided information to the delays and setting aside the fact that the records room closes at four pm even though complaints can be filed until midnight and still receive  at four pm they can be viewed online but for a charge that we contend is is not consistent with the first amendment no and that's another set that's a separate issue about yes we will be close they close the records room and for th continue working until at least five o'clock so in that way it's similar to the plant case but complaints filed up until midnight on a court day receive that day's filing date for the court's procedures and you're ok with the planet current procedure which closes at four pm under the plan a current procedures because plan it is a paper filing court if it's filed that day gets that day's filed stamp were were following the file date for the purposes of determining whether access is timely here but do you have an average i guess an estimate on the average delay in access once a complaint is received by the court that you are experiencing for any given complaint i'm sorry do you have an estimate of the average delay in access once a complaint is received by the court that your experience in for any given complaints are delayed between one and nine calendar days i guess this is the whole reason that judge guilford ordered a trial because you're saying that their stance something completely different and the basis is very unclear for both for both and so we get it you're saying we should go ahead rule based on what we have here in front of us and not wait for a merits tromp just trying to figure out what the path is here for  us are concerned with a preliminary injunction order among many concerns is that a person a delay of eight business hours means that as a general course you're going to have access delayed by at least one court day for a lot of complaints on an ongoing basis and that carries over through weekends and holidays and you're talking about delays that are effectively often not just one day but three or four days and the purpose of the first amendment right of access is is for speech for speech about the courts and it's our contention that delayed access discourages speech about the courts and makes it less likely it's contrary to the principles behind the first  nt it leads to situations of a you can't it's effectively a secret civil action but then we're back now to immediate access was it and i'm not just  not sure how we make a test based on what you're asserting isn't that you know you found in the podium on it media access or contemporaneous but you're really meaning media and i think from your perspective thirty minutes an hour of that would still violate and so i'm just trying to figure out how to you know assess at this point in time and i'm not sure you give me a test to work with i i can't for the same reasons that i think judge taro decided a bright line test was inappropriate i think the test has got to depend on i'm not saying you need to tell me thirty minutes or an hour i'm just from what i'm hearing you from what i'm hearing from you though so you're saying that it's has to be immediate and i don't think it needs to be immediate but i think you have to look at the particular policies that are being challenged at that at this particular time i'm here to talk about the almost talking case for this appeal then we ask you a question this is the part that i don't understand that your argument if if you so if the court has news pays a small fee it has immediate access to the electronic filing correct that is not correct because access is not provided until after complaints are processed and how long does that take it takes a gay or system there because in our court we have electronic filing and if you pay a very small amount to be on pacer you have a magic access to whatever is filed with unless there's an exception for you know like something is filed with the motion to seal or comes up as a record that the district court has sealed and i would think i think that's quite reasonable access and i would hate to be have our current sued because you had to pay a small fee we are not going pacer we're not saying there's anything wrong in the face or system there's anything wrong with it isn't that identical to what is to me and it's not theirs to me in porton differences and i'm running out of time so i want to try to answer this question i would like you to answer  questions she made a prank plea don't we worried about the time of her asking the question answer of a question is very important i hope you think about this pre board question there are two differences between the pacer system and the superior they're sitting in a hew and they're not released for viewing and told someone processes them and the second important difference is that as is true in many federal courts under pacer and as is true in orange county if you go to the courthouse itself you don't have to pay for pacer you can see it and this is not a situation where courthouse news needs its own hobby it just wants to see mo tly couldn't go to san francisco you certainly couldn't come to pasadena and see it and i doubt you could go to san francisco and actually see it because we are so dependent on the electronic filing system now we are we i mean i don't even know when we get the paper copies if any under in the declarations that we've submitted in connection with this motion for there are a record in this appeal reporters and editors attest to how again and again and again in pacer courts they go to the federal court houses they sit down at the pacer terminal they look at the new complaints they see them and then they go home for the night and check them long after the corners closed for the day and they're senior complaints as they come in sometimes without the case numbers because under the federal system access is not conditioned intel after process data to calculate this the two sticks and the difference of opinion comes entirely from whether you can the processing times by business days or calendar days that's the entire dispute is which is the appropriate calculation to use in this record  you have to look at ten eleven which is where sarah cho states that under court records eighty nine point two percent of complaints are provided within eight business hours and ninety six point five percent are provided within fifteen business hours we realized at some point that it was getting really confusing talking about business hours versus calendar days so we've now switched to calculating those statistics according to business days versus calendar days and that's where we are now with that data shows is that ninety seven point five two percent of civil unlimited complaints are available within one day in either word same day or next day so when cns says forty nine percent of civil  complaints are not available of the business day they received just but it's the thanksgiving example that was given before when you have a complaint filed on a friday night and it's made available monday or if it's martin luther king day and it's l for his final judgment we've brief which is the appropriate measure to use because at that point you can really make some good determinations about whether the complaints were provided in a timely manner and i think that's why i buy from a practical perspective i do think given how far along we are in this case there's good reason to lead judge guilford finish the job and provide the court with a full decision on a full record that the court can review i can't cite you a case  the appropriate way to do it i just think it's a matter of practicality the ninth circuit generally encourages getting to a final trial so let me ask you same questions i asked c n n as i don't know if you know what percentage of newly filed plaints do you have access to the same day they were file i don't know and the reason is because when judge guilford held on summary judgment that there was no right to same day access we shifted to focus we said well that must mean that providing it within the next day is sufficient and so that's why we calculated according to the next and then what percentage of newly found complaints do you have access to within forty eight hours or two business days when their business days ninety nine point zero one percent your  and then do you have an average on the daily average delay in access given once a complaint is received by the court that is occurring for any given complaint other words the average is eight hours or ten hours has a policy of reviewing complaints for confidentiality and so what happens is the complaint comes in usually in the day there are two rushes of one complaints come in the lunch hour and then right before closing so they will then turn to those complaints in the order received and once they're able to turn to the complaint it takes about ten or fifteen minutes to review the complaint for confidentiality and then they do at the same time process confidentiality in accordance with state law and determine whether there's there's a motion to see oh no your honor to determine whether the complaint should be sealed under state law but hasn't been flagged by the filer as being off attention and oh is this what cns is challenging if they're trained so it takes ten to fifteen minutes the reason processing times are not simply ten to fifteen minutes because they have to get through the stack and so the backlog within that staff exactly and so maybe the first complaint of the day is process in ten or fifteen minutes but then there are examples of where they have to work through the stack and then there are examples where there are longer delays and that could be you know for example the court doesn't reject complaints often when there's a mistake with it they'll have the  fix it and that may take three or four days or that would be a three or four day delay or when it's their process he put in mind electronic docket correct there electronically publish in the way that works is it's actually better than pacer in one sense in that you can go into the courthouse and get it for free if you're in the courthouse with the monitors you can download that information for free if you want to access it online on your own laptop then that's where the charge comes in and what's the church had known at some point i want to say it's so i want to say about seven fifty for the first page and then a certain number of cents up to a maximum of forty dollars per employee that sounds like a lot of so the privacy concerns that are cited is what you just confirmed with judge and r so i just want to confirm that for myself is that right yes so the court and i wanted to address judge mcgee i don't know if i heard you correctly in the beginning a planet it sounds as if you were asking somewhat about well why can't the filers take care of that was that a question you were asking or do i miss what i think somebody did come up i don't think i spoke like i think i mean it seems to me you're adding a different issue into the middle of this case that everybody took out of the last case in the last case a civil complaint where those which the state had already determined that there was nothing confidential the area and that was all it we had left but it seems to me in this case to state what the state has determined as to confidentiality has not been taken out of the case that's right i think it's actually the centerpiece of the case and that's the big difference because in this case the policy being challenged is the delays are precisely because of the confidentiality rules and so c m s says we don't want those complaints we're not interested in looking at them which may be true but they want the policy that prevents some of these complaints from being caught to be enjoyed so in a sense it is central to the case so i guess just the difference here in orange county is are these reviewers looking for that or is it more quality control that the person who's filed it has indicated that it's confidential pursuant to whatever reason either case related or statutory related reason and they're doing quality control of that or they're doing the initial i say more the former judge maria they're looking for mistakes twenty six percent of the limited several complaints about pro perves so they're looking for cases where they've been trying to find you know this actually has some confidential information in it or by statute needs to be protected and the filer didn't catch that and so at the front end we need to catch that and then protect it now at the same time i want to be clear for administrative purposes they've made a determination to then do the processing at the same time which includes for example figuring out if the person is vexatious litigant if they're vexatious litigant they won't file the document at all assigning a judge things of that nature but they do that at the i agree but i don't but my only my only point would be honored depends whether it's viewed as they certainly will there's a right of timely access i think the question is whether at valid point you move on to time place and manner or whether you ask is that what they're actually seeking in this case which again is same day access whether there's experience in tradition and logic to that type of access or whether you simply say it's enough that you know i'm not sure that's the correct analysis  of timely access then we have to answer sav so you have a first amendment right to that it's really a right that the press has on behalf of the public and then we have to say that courts are only human and they you know they can't unless they develop new systems or i mean go like the ninth circuit  provide that access so what test to be look here might it's the right so i think one way to do that is to then shift the burden to the courts to satisfy the time place man test which we think would be the second test all i'm suggesting is that there could still be part of the initial test which is well what does timely mean and has it been violated here and judge mcginn just made and were like a ball asked you know what what would those standards be how do we judge that talked about some of them i think you come down to reasonable amounts and you know i'm sure you're going to be arguing about what the significant governmental interest is in that particular governmental interest in you're saying it's in a ministry to venturous if you have a court with you know thousands and thousands of cases being filed and you you worry about this is supposing that i agree with you that we take the first test and we say ok there's a there's a right to have access i'm not sure the first test deals with the right to timely access why does press enter frys have anything to do with timely access it seems to me president prizes to whether there's access at all under the first amendment but only because your honor it it does seem to me and i don't want to repeat what my colleague said but it does seem to me the case is looking at the first woman right of access have really looked at not just is there a right t horse gathers generally but is there a right to the kind of access you're seeking not just is their right to watch executions which is california for medical issue but is their right to watch the beginning of the execution so here everyone agrees they're getting access to the complaints the question is is their constitutional right being violated because they should get it before they're already getting that's that's my point and then when we get to the time place manner if in fact we give there at that particular point in time i guess my next question is is the fact that you're that you're weeding out the present relates to privacy of yours or relates to confidentiality yos relates to all of that is that a violation of the time place manner to you no you believe it's not so i but first it's not content based this is something judge what do you mean it's not going to so if you're going to say anything that's a business secret or a trade secret i have to be weeded out is in that country the policy itself which is to review complaints for confidentiality is applied irrespective of the subject matter of the complaint and the standard is this is long beach area peace network laws content based rather than content neutral if the main purpose in acting it was to suppress or exults speech of a certain content or if it differentiates based on the content of speech on its face  we're not doing that here we're simply trying to abide by the confidentiality standards we meet the other test as well i can go through those i do want to note there's been some discussion of the alternative channels of communication it has not been noted that there's numerous cases in the right of access contacts that don't apply that last part a case called shark from the circus six circuit is one of them a case called barbara versus conra and it turns into more of a balancing test of the benefits of unfettered access against the restriction which we've now argued to judge guilford and we'll see what he says is a more appropriate way of analyzing this under the time place manner  order that's what we have argued in next week i suppose or two weeks we'll see what he says your opposing counsel argues that that doesn't give short shrift to the time place and manner by only applying to instead of three what's your response to the well i think it's just it's like giving short shrift as modifying it to the circumstances presented so in shark for example it's not that they just cut out a standard they replaced it with something they felt was more appropriate more of a balancing simply because this is a task that the valid in another context to say gives it short shrift essentially assumes the question of whether it should be transposed entirely to a different context n in our biggest brief we focused on the countervailing interests the strong privacy interests that the court is protecting through its procedures and and i know you already talked under the safe at home program and as to these elements courthouse news aboard the burden to establish them that an injunction should issue here and it failed to sustain that burden given the the altogether you could you could also do that i mean it seems to me aren't you really emphasizing tests which are not quite as important as the likelihood of success test of them the confidentiality of this information and the fact that there are a lot of software presented litigants and those who might not get it right and so there is a reason to protect these interest point review them to make sure that things weren't missed and as the record was developed on summary judgment it showed in fact they caught eighteen of these you know in their process so it's working to reveal something that should have ask you if i can because one of the m government interests you cite that are important is the budgetary constraints i believe you identify in your preferred right well well budgetary constraints are reason additional reason i might say it was your primary right i just was curious on what your authority is for the position that near economic but our budget issues are sufficient to allow for  curtailment of this kind of access well i think that that as a gyp as judge smith mentioned earlier it could be it could be a factor given the overall context of the case and i think here they really kind of married together with the with the privacy interests that they are trying to protect in terms of the cost if you're trying to get exhausted or are you still going to have a procedure that would protect privacy interests  certainly the privacy but you also cited the budgetary and i'm aware of the budgetary people i've been talking about net including me but i just i'm just curious from what if you had the best what was your best case for that yes it was so in this context there there is not a case that would say that that the is going to try are the parties have different points of view on them one of the main issues and i think the main mission he's going to try is the extent to which delays of longer than one calendar day are one of the issues identified in the motion for summary judgment order is the issue of alternative channels of communication and to what extent those are implicated in this case those are the issues that come to mind from that  judge the reason i asked the question is it seems to me that this case comes after the planet case and so therefore judge guilford as in front of him first of all whether there's any access at all and that's with the if you use the test that we've outlined impression or price right and he's trying to determine that or is he already determined  he used the press enterprise tests to make a determination that at the very least delays in access of one calendar day were time but we don't have a final judgment yet because he has an issue of final judgment in this case so that will merge into the final judgment of this case and maybe this is the subject of a subsequent