Peter J. Krumholz (Hale Westfall, LLP) has published The Case for Greater Public Access to Oral Argument Recordings in the Tenth Circuit, 89 Denver U. L. Rev. 395 (2012).
The author lists the D.C. Circuit among the minority of “laggard” circuits that have failed to follow the Supreme Court’s example of publishing audio recordings of oral arguments online.
From the article:
The D.C. Circuit adopted its policy regarding oral-argument recordings more than fifteen years ago. It provides that only “an attorney or litigant in the case may listen to oral-argument tapes.” However, the policy does allow “any person” to request that a transcript be made of oral argument at his or her own expense, using a court reporter specified by the court.
Inexplicably, the court specifies that “[t]he cost will include the expense of preparing one copy of the transcript for the requestor and four copies for the Court.” The policy further provides that any person may request a copy of an oral-argument recording “after the case has been completely closed,” and clarifies that “[t]his means that all appeals, remands, or other additional proceedings must be concluded before the tape will be reproduced.”
[Footnote: This aspect of the court’s policy is especially puzzling in light of the frequency with which the D.C. Circuit’s written opinions cite to statements made by counsel in oral argument. A Westlaw search of D.C. Circuit decisions for the words “recording” or “tape” within five words of the phrase “oral argument” turned up sixty-eight such instances. See, e.g., Artis v. Bernanke, 630 F.3d 1031 (D.C. Cir. 2011). In Artis, the court cited to the oral-argument recording to support the harsh conclusion that counsel for the Board of Governors of the Federal Reserve System made a misrepresentation to the court. Yet, because the decision resulted in a remand for further proceedings before the district court, and the case is still pending, there is no way for anyone but the litigants themselves to verify the court’s citation without incurring the time and expense of hiring a company to generate a transcript of the argument.]
The circuit charges $30 for an oral argument recording.
Finally, the D.C. Circuit’s policy provides that “[t]he Court will consider requests for a waiver” of its policy upon a showing of good cause. There does not, however, appear to be any guidance from the court on what constitutes “good cause” for purposes of obtaining a waiver of the court’s policy.
- The D.C. Circuit Is Not “Ready To Throw in the Towel” on Oral Argument Recordings, D.C. Circuit Review (Mar. 31, 2012) (“Chief Judge Royce Lamberth of the U.S. District Court for the District of Columbia said . . . ‘he thought momentum was moving in support of recorded [appellate] proceedings.’”).