E-Filing: Coming Soon to A Federal Court Near You

James O. Payne, Jr.

"Much of my life now is e-mail based. I would love to file pleadings electronically with the court, send a copy to counsel, and have the same done for me," former ABA President Robert Hirshon recently told the judiciary. An Interview with ABA President Robert E. Hirshon, The Third Branch, April 2002. The good news for attorneys is that soon they will be able to file, serve and access pleadings in federal cases from their office and home computers. The public will have on-line access at least to civil pleadings.

Already at least 10 federal district courts and 24 bankruptcy courts accept electronic filing of pleadings (e-filing) over the Internet. The federal judiciary's schedule is to bring all district, bankruptcy and circuit courts on-line with e-filing by 2005. The judiciary's Web page has the current schedule for individual courts. See www.uscourts.gov.

Practitioners in environmental, energy and natural resources law may find themselves in e-filing courts even sooner. Their cases often span the country, which increases the chance of encountering an e-filing court. Their cases are sometimes complex litigation. The earliest e-file pilots were complex litigation and included a private CERCLA cost recovery action and another environmental case. Practitioners may find e-filing has much to offer in handling the bulky discovery material and administrative records common in these cases.

This article provides a primer on e-filing, including changes in federal rules of procedure. It shows how e-filing evolved from electronic case file initiatives including steps to make courts accessible from home and office. Being familiar with this history may help in projecting future developments. The article describes the "roll out" of e-filing in federal district, bankruptcy and appellate courts scheduled for 2001-2005, and it lists practice tips.

A key practice tip is to be aware of courts issuing general orders requiring attorneys to delete or redact personal privacy information from pleadings - paper and electronic- in anticipation of on-line public access to pleadings. The article concludes with a message about the important role of attorneys in this new era of federal litigation.

Primer

What is e-filing? E-filing is the electronic filing of a pleading with a court. It can include electronic service of a pleading on other parties (e-service) and electronic notice of a court order or judgments (e-notice).

How does e-filing work? The attorney prepares a pleading using a word processor, and saves a copy of it in "portable document format" (PDF) using Adobe or similar software. The attorney scans other documents (e.g., attachments) to create PDF copies. The attorney signs onto the court's e-filing Web page by entering the user ID and password received after completing the court's on-site or on-line training. The Web page prompts the attorney to enter docket information and attach a copy of the PDF pleading and any attachment. When the attorney clicks the final "submit," the court immediately sends an e-mail (or fax) notifying the attorney and other parties of the filing and providing a hyperlink to it. Filing and service is complete.

When can documents be e-filed? E-filing can usually be done up to midnight on the date the document is due. The court immediately provides notice of the e-filing by serving on all parties an e-mail notice with a hyperlink to the document. A party receiving the electronic service may add three days to respond, in the same manner as for service by mail under Civil Rule 6(e). On-line access to the e-filings is around the clock. If you learn you have not received an e-mail notice, notify the court and/or the appropriate parties.

What is needed for e-filing? You will simply need a computer with Internet service and Adobe or similar software. A user ID and password are obtained after completing the court's training session. The password serves as the attorney's signature for Civil Rule 11 purposes. A scanner will convert any attachments into Adobe format.

When will my local court accept or require e-filing? At least 10 district and 24 bankruptcy courts are already on line. The "roll out" schedule will continue through 2005 for district, bankruptcy and appellate courts. It depends on the court and judge whether e-filing will be allowed or required in a particular case.

Can the public access e-filed pleadings on the Web? Yes. The judiciary's PACER service allows public access to electronic case files for a fee. See www.uscourts.gov (PACER).

How can I learn more? The judiciary's Web page has links to individual court e-file programs (including on-line tutorials). See www.uscourts.gov (electronic access/PACER). The judiciary's Web page also includes its newsletter, The Third Branch, which has many of the articles cited herein, as does ABA's Web page. The Web page for law library professionals, www.llrx.com, is rich with resources. State court e-filing is the main subject in the ABA's Judges Journal, Summer 2001 issue. The National Conference of State Courts has a guidebook on e-filing, at www.ncsconline.org (McMillan et al., A Guidebook for Electronic Court Filing).

The judiciary has two key institutions that are launching e-filing. The Judicial Conference (Conference) is the policy-making body for the federal judiciary and it decided to "roll out" e-filing to the courts. The Chief Justice chairs the Conference, which also includes the chief judge of each circuit, a district judge from each circuit and a judge from a specialty court. 28 U.S.C. § 331. The Conference recommends uniform court management practices. 28 U.S.C. § 331. With its advisory committees, it also develops amendments to the various federal rules of procedure and proposes them to the Supreme Court for adoption. 28 U.S.C. §§ 2072 (Rules Enabling Act), 2073.

The Administrative Office of United States Courts (AOUSC) carries out the policies of the Judicial Conference, including for e-filing. AOUSC provides administrative support to the judiciary and submits to Congress an annual report on "the state of the business of the courts." 28 U.S.C. § 604.

Rule Amendments

The Judicial Conference has ushered in e-filing with a series of amendments to federal rules of practice and procedure since 1991.

E-Filing Allowed by Civil, Criminal, Appellate Rules. The rules authorizing e-filing came close on the heels of rules authorizing fax filing. The federal rules in 1991 first allowed fax filing, subject to two conditions. The court had to adopt a local rule permitting the practice, and the Judicial Conference had to approve the local rule. See 1991 amendments to Civil Rule 5(e), Appellate Rule 25(a); Criminal Rule 49(d) (incorporates Civil Rule 5(e)); see e.g., McIntosh v. Antonio, 71 F.3d 29, 34-35 (1995) (complaint filed by fax was invalid in absence of local rule permitting fax filing pursuant to Civil Rule 5(e)).

By 1993 the federal rules allowed electronic filing on a par with fax filing. The court had to authorize the practice in a local rule approved by the Judicial Conference. See 1993 amendment to Civil Rule 5(e); 1991 amendment to Appellate Rule 25(a); Criminal Rule 49(d).

The 1996 amendments encouraged e-filing pilots in response to soaring use of computers and the Internet. The amendments clarified that electronic filings are treated the same as paper filings. The local rules no longer had to be approved by the Conference, though they had to be consistent with any technical standards issued by the Conference. See 1996 amendments to Civil Rule 5(e), Appellate Rule 25(a); Criminal Rule 49(d).

E-Service Allowed by Civil, Criminal Rules. The 2001 amendments to the Civil Rules allow parties in civil and criminal actions to serve pleadings electronically when consented to in writing by the person served. See 2001 amendments to Civil Rule 5(b) and Advisory Committee Notes; Criminal Rule 49(b) (incorporates Civil Rule 5(b)). The amendments do not apply to service of process. Service is "complete on transmission," unless "the party making service learns that the attempted service did not reach the person to be served." Civil Rule 5(b)(2)(D) and (3). A party may make service alternatively through participation in a court e-filing system that automatically serves counsel. Civil Rule 5(b)(2)(D).

A person's consent to e-service "should include at least the persons to whom service should be made, the appropriate address or location for such service - such as the e-mail address or facsimile machine number, and the format to be used for attachments." Advisory Committee Notes, 2001 amendment to Civil Rule 5(b). The written consent can be made electronically. The person who consents to service must "monitor the facility designated for receiving service" and "provide prompt notice of any address change." Id. The Judicial Conference is preparing similar amendments to the Appellate Rules.

3-Day Rule Applied by Civil Rules. The 2001 amendments to the Civil Rules give a party receiving electronic service three additional days to respond, in the same manner as for service by mail. 2001 amendment to Civil Rule 6(e). The amendment is intended to allow time in case e-service miscarries and to encourage parties to consent. Advisory Committee Notes to 2001 amendment to Civil Rule 5(b). The Judicial Conference is preparing similar amendments to the Criminal and Appellate Rules.

E-Notice Allowed by Civil Rules. The 2001 amendments to the Civil Rules allow a court to serve notice of orders and judgments electronically when consented to in writing by the person being served. See 2001 amendment to Civil Rule 77(d). The Judicial Conference is preparing similar amendments to the Criminal and Appellate Rules.

Bankruptcy Rules. The bankruptcy rules have been amended to allow for e-filing. See Bankruptcy Rules 7005 (e-filing, e-service), 9006(f) (3-day rule), 9022(a) (e-notice of judgment or order); see also Bankruptcy Rule 9014 (e-service of papers in contested matters) (scheduled to be effective Dec. 1, 2002).

Electronic Case File Initiatives

E-filing grew out of electronic case file initiatives by the judiciary including steps to make the courts accessible from homes and offices. A familiarity with this history may help in projecting future developments. See 28 U.S.C. § 612 (1989 legislation requiring AOUSC to submit to Congress an annual "long range plan" for automation, and providing a fund to carry out the plan).

On-Line Public Access to Court Dockets. In 1990, AOUSC began allowing public access to district court dockets via modems. Most clients were law firms. AOUSC later called the system Public Access to Court Electronic Records, or "PACER." Electronic Public Access at 10 The Third Branch, vol. 32, no. 9 (Sept. 2000). See P.L. 101-515, Title IV, § 404, Nov. 5, 1990, 104 Stat. 2132 (authorizing AOUSC to charge fees for services).

By 1996, PACER had nearly 30,000 users with 3 million requests per year. It was poised to go on the Web the following year. AOUSC had developed a similar on-line system for appellate courts, and had a free telephone service in which an automated voice gave appellate and bankruptcy docket information. Technology Increases Public Access to Federal Courts, AOUSC, July 24, 1996; Current Electronic Public Access Programs in the Federal Judiciary, AOUSC, July 24, 1996.

On-Line Public Access to Scanned Pleadings. In the mid 1990s, many courts began scanning paper filings for circulation electronically within the courthouse. Some courts put the scanned filings on-line for public viewing over the Internet.

E-Notice of Bankruptcy Orders. In the mid 1990s, the judiciary began sending electronic notices of orders and judgments to counsel in four bankruptcy courts (Electronic Bankruptcy Noticing). Electronic noticing was intended to reduce the judiciary's burden of mailing 55 million notices per year in bankruptcy cases.

E-File Pilots. In the mid 1990s, several courts began e-filing pilots to manage complex cases or classes of cases. Initially, the pilots used automated docket systems kept separately by vendors. Later, the pilots automated a court's own docket system.

In 1995 the Northern District of Indiana began a commercially-operated e-file pilot in a CERCLA private cost recovery case involving 23 plaintiffs and 1181 defendants. Active Products Corp. v. A.H. Choitz & Co., Inc., 163 F.R.D. 274 (N.D. Ind. 1995) (adopting Complex Litigation Automated Docket or "CLAD" by LEXIS/NEXIS). "It would be impossible for this Court to manage a case of this magnitude utilizing traditional methods and preserve any kind of currency for the rest of its docket ...." Id., at 279. The vendor would train counsel. Pro se litigants and members of the public could view e-filed documents at a free terminal at the court. See also In re White Lung Ass'n, 642 A.2d 837 (Table), 1994 WL 91257 (Del. Supr.) (denying writ of prohibition against CLAD in insurance asbestos cases) ("use of computers to access information is a commonplace feature of modern law office operation").

In January 1996 the U.S. Northern District of Ohio began an e-file pilot by automating its own docket system for new maritime asbestos cases. The court had a staggering maritime asbestos docket of 5000 cases per year, with 10,000 pleadings filed weekly and typically 100 defendants per case. AOUSC provided prototype software for the pilot. Electronic Filing System Brings Order to Mountain of Documents, The Third Branch, February 1996. Nine other courts soon began similar e-file pilots.

E-File Roll-Out, 2001-2005

The concept and tools for e-filing work, was the lesson drawn by AOUSC from the pilots. E-filing saves court resources and is simple for attorneys:

The system effectively makes the attorney the docketing and filing clerk. To file electronic documents ... the attorney prepares the document on a word processor, saves it in portable format (PDF), and submits it to the court via the Internet. A PDF file is used because it is much smaller than an image file and is fully text searchable. As the attorney submits the document, a menu provides guidance through the docket entry process.

Id.

Buoyed by the early success of the pilots, AOUSC announced that it would develop model software to bring e-filing across the judiciary. AOUSC pointed to similar developments for e-filing of tax returns and patent applications. E-filing would be a "seamless web" that would consolidate the judiciary's initiatives for electronic case files and remote public access to court information. Electronic Case Files in the Federal Courts: A Preliminary Examination of Goals, Issues, and the Road Ahead, Discussion Draft, March 1997, at 1.

In 2001, AOUSC began rolling-out its e-file system, which it called Case Management/Electronic Case Files or "CM/ECF." The system includes e-service and e-notice by the court via an e-mail to attorneys with a hyperlink to the document. The attorney has one-time free access to the document. Subsequent access is by fee. The public will have on-line access to pleadings, order and judgments in civil cases via PACER for a fee. The Judicial Conference is considering whether to allow on-line public access in criminal cases.

The roll-out schedule for district courts is 2002-2005, for circuit courts is 2003-2005, and for bankruptcy courts is 2001-2004. At least 24 bankruptcy courts and the following district courts have started e-filing: California Northern, New Mexico, District of Columbia, New York Eastern, Michigan Western, Ohio Northern, Missouri Western, Oregon, Nebraska and
Pennsylvania Eastern.

Practice Tips

Obtaining User ID & Passwords. Courts typically provide an attorney with a user ID and password upon completion of on-site or on-line training. An attorney practicing in a distant court will want to learn whether the court will allow on-line training. An attorney taking on-line training might need to allow 7-10 days to receive the user ID and password in regular mail. An attorney practicing in several courts will need to keep track of separate user IDs, passwords and service arrangements.

Receiving E-Service and E-Notice. An attorney will want to make arrangements for someone to review service and notice e-mails when the attorney is not available. An attorney who consents to e-service and e-notice will not receive copies of pleadings, orders and judgments in the mail. The attorney can specify that service and notice e-mails go to multiple addresses, including addresses for co-counsel and office assistants. The attorney can later change the receiving addresses. The specifications are conditions of consent to e-service and e-notice under Civil Rules 5(b) and 77(d). The attorney will generally want to notify the court and other counsel upon learning of any miscarry of e-service or e-notice. See e.g., Civil Rule 5(b)(2)(D) and (3) (e-service is "complete on transmission" unless "the party making service learns that the attempted service did not reach the person to be served"); Criminal Rule 49(b) (incorporates Civil Rule 5(b)).

Complying with General Orders Requiring Deletion or Redaction of Personal Privacy Information from Pleadings.Counsel will want to routinely check each court's Web site for any General Order or Notice requiring deletion or redaction of personal privacy information from paper and electronic pleadings. In the summer of 2002, at least 22 district courts issued a General Order or Notice requiring that attorneys delete or redact the following four "personal identifiers" from pleadings: Social Security numbers, dates of birth, financial account numbers and names of minor children. Some of the Orders and Notices may require more information to be deleted or redacted. Most warn that counsel and parties may be subject to the court's disciplinary power for noncompliance. The courts include districts that have not begun e-filing. See, e.g., Idaho (General Order 174), Louisiana Eastern (Notice to Members of Bar), Oklahoma Northern (General Order GO-02-03) and Texas Southern (General Order 2002-7).

The General Orders and Notices state that they carry out the Judicial Conference's Privacy Policy issued in September 2001 in anticipation of increased on-line public access to electronic case files. In 2000, the Conference had solicited public comments on its options for allowing public access to e-filings while protecting privacy. The ability to search the text of electronic case files through PACER was a special consideration. See generally Marquess, Open Court? As Courthouses Rush to Put Filing Online, Easy Access to Legal Documents Has Many Worrying About Privacy Rights, ABA Journal, April 2001.

The Conference's Privacy Policy of September 2001 concluded that the public should have on-line access to electronic case files in civil and bankruptcy cases, and that pleadings should not contain the four "personal identifiers." The Privacy Policy concluded that there should be no access to electronic case files in criminal cases, and that this policy should be reevaluated in two years. Appellate case files should be treated the same way in which the files were treated at the district court or agency below. See judiciary's Web page (www.privacy.uscourts.gov).

The U.S. Supreme Court has recognized the "practical obscurity" of paper records in a courthouse, as compared to an electronic compilation of them., 489 U.S. 749, 762 (1989) (applying FOIA privacy exemption to maintain confidentiality of an FBI rap sheet). "Plainly there is a vast difference between the public records that might be found after a diligent search of courthouse files, county archives, and local police stations throughout the country and a computerized summary located in a single clearinghouse of information." Id., at 764.

Using Electronic Links. Attorneys will want to be aware of opportunities for briefs and pleadings to include electronic links to attachments such as affidavits and unreported decisions and to documents in the court's electronic case file such as an administrative record. Attorneys will also want to be aware of opportunities to include hyperlinks to matters on the web, though a consideration is that the addresses and content of Web pages may change over time. Local court rules and procedures might address the use of hyperlinks.

In 1997, the Federal Circuit found "much to commend" about a CD ROM brief submitted to it with electronic links to attached court opinions and record material including a video, 111 F.3d 883, 887 (Fed. Cir. 1997) (striking CD ROM brief due to prejudice to opposing party and lack of prior leave, but leaving paper version of brief unaffected). Judge Archer called for the Federal Circuit to develop local rules to allow e-filing of briefs including CD ROMs pursuant to the 1996 amendment to Appellate Rule 25(a). Id.

The Circuits that have adopted local rules allowing some form of e-filing include the First Circuit (Local Rule 32.1), Eighth Circuit (Local Rule 25A) and the Eleventh Circuit (11th Cir. R. 31-5). See Rothman, E-Filing Appeals with Adobe Acrobat, Law Library Resource Xchange Web page ( www.llrx.com) (Oct. 2, 2000); Levy, How to Handle an Appeal, Practicing Law Institute, § 5:6.7 (2001).

Managing Case E-Files. Law offices will need to evaluate how to maintain and archive outgoing and incoming electronic pleadings and notices, particularly since e-filings, e-services and e-notices will not be provided in paper.

Looking Ahead. Law offices will want to look ahead as technology advances. The practice of e-filing grew in the 1990s with advances in computer hardware and software and user comfort. Attorneys can expect ongoing developments. For example, the development of "extensible markup language" or "XML" format may create even more opportunities for electronic filing and document searching.

Role of Attorneys

Attorneys have a key role in the future of e-filing. The willing participation of attorneys led to the early success of the pilot in Northern District of Ohio, according to Chief Judge George White:

Much of our success with electronic filing must be attributed to the interest, input, and cooperation of participating attorneys and their staffs. Without their efforts, our program could not have succeeded. Any future electronic filing efforts will require a similar commitment from attorneys who are willing to take advantage of technological advances to improve the practice of law.

The Honorable George W. White, Chief Deputy Clerk Chris Malumphy, Electronic Filing: Shocking Developments, The Federal Lawyer, June 1997, pp 40-41. The U.S. Department of Justice provides regular feedback to AOUSC on the roll out of e-filing.

Attorneys will have an important role in the new era of e-filing, which is coming soon to a court near you.

James O. Payne, Jr. is counsel for State & Local Affairs in the Environment & Natural Resources Division, U.S. Department of Justice. He also serves on DOJ's E-Filing Workgroup, and can be contacted at james.payne2@usdoj.gov or 202/514-3473.