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BLAST
Editor-in-Chief Associate Print Editor Associate Online Editor Contact Section
Section of Science and Technology Law Officers Chair Chair-Elect Vice Chair Secretary Budget Officer Section Delegates
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ININ THIS ISSUE JANUARY 2001
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REPORT OF THE MULTIMEDIA
& INTERACTIVE TECHNOLOGY LAW COMMITTEE: STUDY OF CD-ROM BRIEFS IN
FEDERAL APPELLATE COURTS Note: This article does not include the Table, DISK BRIEFS IN THE CIRCUIT COURTS OF APPEAL, that appeared in the print article. Filing materials in appellate courts in electronic form is a very recent phenomenon. The federal appellate courts began accepting electronic filings only three years ago, but the practice is expected to expand relatively quickly. As a consequence, the federal circuits have begun to grapple with the requirements under which these materials will be filed, and four of the circuits have adopted rules to govern submission of electronic briefs and other documents. The existing circuit rules are not uniform, however, and individual rules appear to be more the result of ad hoc responses to particular circuit needs rather than any coordinated effort. Greater consistency among the circuits would reduce confusion, promote consistency in interpretation, and provide a broader precedential base for dealing with the particular issues that this new medium may create. The Multimedia and Interactive Technology Law Committee has undertaken to review existing rules of the federal circuit courts of appeal concerning the filing of electronic briefs and other documents with a view toward developing a standard set of requirements that may be recommended for adoption. This report summarizes the Committee's initial steps in that process. EXISTING AUTHORITY FOR FILING ELECTRONIC DOCUMENTS Of the thirteen federal appellate courts, only four (the First, Second, Eleventh, and Federal Circuits) have rules permitting the filing of briefs in CD-ROM format. The requirements for CD-ROM filings, however, vary among these four circuits. For example, the Eleventh Circuit permits hyperlinks in CD-ROM briefs that refer to extrinsic material, potentially including dynamic material such as Internet web sites, while the Federal Circuit does not. Some circuits require that attorneys certify that CD-ROM briefs have been scanned for viruses, while others do not. Other differences and their implications are discussed below. The Committee did not address various district court rules that may relate to CD-ROM filings. WHAT IS A CD-ROM BRIEF? In contrast to conventional briefs, which require that a reader rifle through separate volumes of written material, hyperlinks in CD-ROM briefs allow a reader to quickly move from an argument to a case citation to a deposition transcript, all with the click of a mouse. The process is very similar to surfing the Internet, where different web sites can be instantly called up by clicking on highlighted hyperlinks in web pages. The reader can selectively navigate through the brief and other materials, moving forward or backward as desired by clicking on the hyperlinks and forward or backward buttons. CD-ROMs can typically store the equivalent of 12,000 or more page of text, enough to hold an entire record in many cases. CD-ROM briefs have the potential to promote efficiency in the deliberative process by providing instant access to court decisions and to specific portions of an otherwise unwieldy record, thus freeing up judges and their law clerks from searching through numerous books and papers. A CD-ROM brief provides a court with an exact replica of a voluminous paper brief, yet it occupies much less space and provides self-contained access to large quantities of other information. One problem raised by the use of CD-ROM briefs is the lack of generally accepted standards for storing and using such briefs. For example, there is not a universally accepted file format for storing data, there is no agreed-upon organization for the dozens of computer files that are stored on a CD-ROM, and there is no consensus on a particular software program for reading a CD-ROM brief. Providing a judge with a CD-ROM does not guarantee that the judge will have the appropriate computer software or expertise to be able to read the brief. The U.S. Court of Appeals for the Federal Circuit first grappled with the issue of CD-ROM briefs in Yukiyo, Ltd. v. Watanabe, 111 F.3d 883 (Fed. Cir. 1997). In that case, Yukiyo filed his brief on a CD-ROM. Watanabe moved to strike the brief on the basis that the brief could not be readily viewed on his computer, and because it contained information (e.g., a deposition videotape) that was not included with the paper version of the brief. In an order dated April 15, 1997, the Federal Circuit granted Watanabe's motion to strike the brief. The court, however, provided guidelines for future filings, including the requirement that the consent of opposing counsel must be sought before filing a CD-ROM brief. Without deciding the issue, the court also questioned whether it would be appropriate for a CD-ROM brief to include hyperlinks to matters extrinsic to the record, such as a web site. Soon thereafter, the Federal Circuit accepted its first CD-ROM brief, in In re Berg, 140 F.3d 1428 (Fed. Cir. 1998). A CD-ROM brief was also filed on behalf of Ford Motor Company in Nagle Industries, Inc. v. Ford Motor Co., 194 F.3d 1339 (Fed. Cir. 1999)(unpublished). The first CD-ROM brief filed in the Second Circuit was submitted in January 1998 by New York sole practitioner Danial P. Levitt, who incorporated video depositions into the appellate record. See The National Law Journal, "E-Evidence Demands New Expert," March 9, 1998, at page A1. The Supreme Court in 1997 accepted a CD-ROM brief in ACLU v. Reno, a case concerning the constitutionality of the Communications Decency Act. The brief, filed by amicus curiae, included hypertext links to active Internet web sites that the party argued would be curtailed by an adverse ruling in the case. The brief can be viewed at www.shsl.com. HOW A CD-ROM BRIEF IS CREATED The second step generally involves organizing the documents and "hyperlinking" portions of the brief to specific portions of the documents. For example, if a brief refers to a specific statute, a hyperlink to that statute is created and embedded into the document, and an electronic version of the statute is stored on the CD-ROM such that it is "linked" to the specific reference in the brief. If a brief refers to a court decision, a copy of the court decision can be downloaded from Westlaw or Lexis and stored on the CD-ROM. (Copyright permissions may be required for certain types of documents, such as law reviews or other copyrighted materials). Alternatively, paper versions of court decisions can be scanned and stored on the CD-ROM as PDF files. Specific pages in the appellate record can also be linked directly to page references in the brief, such that clicking on a record citation will cause the corresponding portion of the record to be displayed on the user's computer. Finally, software and instructions necessary to read the CD-ROM must be stored on the CD-ROM itself. For example, the commercially available Adobe Acrobat reader software can be stored on the CD-ROM so that a computer lacking such software can automatically install it when the CD-ROM is inserted into the disk drive. If video depositions or audio files are included, software that permits such video or audio portions to be displayed and heard on the reader's computer must be included on the CD-ROM. Instructions for installing and reading the CD-ROM are also frequently placed onto the CD-ROM in a "readme" or "instructions" file, and sometimes a setup program is also included on the CD-ROM to automatically install one or more software programs such as an Adobe Acrobat reader. A number of companies advertise CD-ROM brief preparation services. One such company, Record Press Inc. (www.recordpress.com/cdrombrief.html) advertises CD-ROM brief preparation services including electronic scanning of documents; conversion of documents into PDF format, generation of table of contents with hyperlinks, transfer of documents onto CD-ROM, Adobe Acrobat Reader software installation on the CD-ROM allowing the contents to be viewed on a computer, hyperlinking of table of authorities and internal citations within the brief, downloading of case citations and storage onto the CD-ROM with hyperlinks, and video and audio hyperlinking to briefs, records, or appendices. ANALYSIS Two of the four circuits require that the consent of opposing counsel be obtained before a CD-ROM brief is filed. As technology continues to bring more consumers into the Internet world, it is likely that this requirement will be dropped entirely in the future. Three of the four federal circuits specify Portable Document Format (PDF) file types for the brief itself (the Second Circuit alternatively allows HTML, which is the format used by web browsers). The PDF format provides a display format that is very close to what appears on a page of paper (i.e., the screen appearance mimics the paper appearance), so it is not surprising that this format is preferred. However, in order to read this file format, one must install a copy of the Adobe Acrobat reader program, which is at present free from Adobe Corporation. Annointing one company's product as a de facto standard may lead to future problems. Should Adobe one day decide that it will no longer license free copies of its Adobe Acrobat reader, courts across the country could find themselves requiring a format that imposes additional costs on parties, and that favors a single company over others in the brief writing business. That could be akin to having a court specify that only a particular brief printer shall be used for printing briefs for filing in the court. One of the most interesting issues raised by the filing of CD-ROM briefs is what "hyperlinks" can be used. In the most basic sense, a hyperlink is intended to lead the reader to publicly available documents such as statutes, case law, and the like. While extrinsic to the appellate record, no one is likely to argue that providing a hyperlink to the full text of a publicly available statute is improper. More interesting, however, is the situation where a hyperlink is provided to other types of extrinsic evidence, such as a web site. The U.S. Supreme Court, while lacking specific rules on the subject, considered extrinsic web sites based on hyperlinks in a CD-ROM brief filed in that court (see ACLU v. Reno, above). One potential problem with permitting hyperlinks to web sites is that the web site contents are controlled by a third party. Consequently, at the time a judge clicks on a hyperlink to view the web site, the referenced material might no longer be available, or it might have been modified from the time that the brief was filed. The latest edition of the Blue Book states, in Rule 17.3.3, that citation to Internet sources in briefs and motions is discouraged unless the materials are unavailable in printed form. Where citation to Internet sources is necessary, the citation should clearly indicate the date on which the web site was last modified or "visited." A related issue concerns linking to a computer file that replays a portion of a videotaped deposition or trial testimony which - while technically part of the "record" - nevertheless is not conventionally provided in a joint appendix on appeal. Appellate judges are supposed to pay attention only to the substance of a deposition transcript or trial record. Allowing appellate judges to replay in vivid detail the testimony of a witness on his or her own computer raises the prospect that the judge would be able to unwittingly judge the character, demeanor, and trustworthiness of a key witness. Of the four federal circuits that permit filings on CD-ROM briefs, only the Eleventh Circuit permits hyperlinks to extrinsic materials such as web sites. The Federal Circuit explicitly prohibits references to extrinsic evidence of this sort. The Second Circuit explicitly permits hyperlinks to audio and video materials, such as deposition testimony or trial materials. Even though some courts might permit linkages to dynamically changing web sites that could be controlled by third parties, it is doubtful that many attorneys would want to subject their briefs to the whims of the Internet. One potential problem involved with filing CD-ROM briefs concerns copyright violations stemming from storing copyrighted material (e.g., West reporter pages, law review articles, and the like) on CD-ROMs. Storing such materials on CD-ROMs undoubtedly constitutes "copying" under the federal copyright statute. Every document to which a hyperlink on a CD- ROM brief is provided must be cleared by obtaining a license from the copyright holder. This could impose a severe burden on parties seeking to file briefs on CD-ROMs both from a time aspect and a cost aspect. It is unclear whether a party could rely on a fair use defense to avoid copyright infringement damages. Another problem surrounding the filing of CD-ROM briefs involves the potential to infect computer systems with viruses or worms. The recent "Melissa" and "Love Bug" viruses illustrate all too readily the risks involved with introducing unknown computer files into a computer system. The Federal Circuit's requirement that every attorney certify that each CD-ROM filing has been scanned for viruses is a good step in the right direction. Even where rules do not require virus checking, it would of course be prudent to check CD-ROMs for viruses before submitting them to any court. CONCLUSION As more courts adopt rules permitting the filing of CD-ROM briefs, there is the potential for conflicting rules and procedures. Progress would be served by coordinating a standard set of rules for preparing and filing CD-ROM briefs in federal courts.
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