October 20, 2006
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File your legal briefs with the press of one button! Save trees! Read your opponents papers within seconds after they're filed-even if you're on vacation in Hawaii! Increase your dependency on your IT Department! Agonize for hours because your PDFs are too big to e-mail!
Do any of these developments seem like progress to you? Well, for those of us practicing in federal court, this is the new reality. Since February 2001, several district courts have started Electronic Case File (ECF) programs. As of January 1, 2003, all new cases filed in the Northern District of California will be designated for e-filing. Attorneys can even be sanctioned if they do not register for the program in a timely manner.
For me, the thought of being more reliant on computers for the practice of law was intimidating. Phrases like "the network is down" or "the document got corrupted" take on new meaning when they can prevent you from meeting deadlines. However, as with other new technology (like palm pilots and cell phones), I have grown accustomed to the system and can even enjoy its benefits. Electronic service of all documents saves time and money by eliminating the need to make extra copies of documents for each party. The system can also give you extra time to react to nasty filings purposely submitted right before weekends and/or holidays (like the motion I hand served as a law clerk on 2:00 p.m. the Wednesday before Thanksgiving).
As the office guinea pig for this system and the magnet for practically every troubleshooting issue that has come up, I provide some tips which will hopefully allow you all to sleep better and click your way into e-filing nirvana.
Practice Tip #1: Register now with both the local ECF & national PACER system
For attorneys who practice regularly in federal court and/or represent out of state clients, exposure to the e-filing system is almost inevitable. The PACER system permits the user to review both the entire docket and every document that is available electronically. Since it is a system that is separate from each local ECF system, attorneys who use it are required to register with both. The practitioner should be mindful that although registration with each system is simple and the forms are available on-line, for security reasons, each application can only be completed through the mail, since each requires original signatures on the applications. The time to register is not when you get assigned a case, only to find out that you are incapable of filing the documents because you lack the appropriate computer identification. The PACER system can be accessed at http://pacer.psc.uscourts.gov/; each ECF system can be accessed by logging onto the applicable district court's website (for ECF system for the Northern District of California can be accessed at http://www.cand.uscourts.gov/).
Practice Tip #2: Check All Initial Papers To Determine if there is an E-Filing Designation
A case is designated as e-filing when the complaint is filed. All defendants are required to be given notice of the e-filing status when they are served with the summons and complaint. The ECF designation is a paper document that is served on the defendant along with the other initial materials, such as the deadlines triggered by the initial case management conference. Since a party can be sanctioned if e-filing rules are not followed, it is essential to determine if your case has been designated for e-filing. If you are unsure upon reviewing the initial papers, I recommend logging onto the district court's website and/or the PACER system to review the initial orders.
Practice Tip #3: Ensure Your Office Has Access to the Necessary Technology
Since all documents must be converted into Adobe Portable Document Format (PDF) you need to make sure that your office has purchased the software program and that there is someone at your firm adept at using the technology. Further, you will find e-filing difficult if your office does not possess a high speed scanner which converts documents and exhibits into the PDF form. Although the e-filing rules allow for manual filing of exhibits and/or documents if conversion to electronic format by scanning is not feasible, my experience with this rule is that it should be used sparingly. This rule should only be relied upon when you are confronted with difficult to copy documents. The rules expect you to possess scanning technology: the fact that your office does not possess it and/or know how to use it will not excuse a failure to electronically file the documents correctly. Note from the trenches: in the course of less than a year I have witnessed first hand the power of possessing a high speed scanner and no more will I have to wait an hour for a 15 page exhibit to be transformed into a PDF.
Practice Tip #4: Understand the System Before You File Any Documents
The ECF website contains a tutorial that explains the process. Also, I recommend attending any of the seminars hosted by your local district court. The session hosted by the Northern District was particularly helpful. Also, be mindful that you are creating an entry on the Court's docket each time a filing occurs. Thus, both you and you support team should review the existing docket and the menu options available when filing. I have filed several documents whose exact description was not a menu choice; through creativity and tinkering around the menu choices, our documents got filed and correctly named.
Practice Tip #5: Beware of Allure of the Midnight Deadline
To lawyers accustomed to filing documents at the last possible time, the midnight filing deadline can be irresistible. My advice: resist. The creation of PDF documents and the scanning and collation of exhibits usually requires the input and expertise of your secretarial and technology staff. Unless you have access to your full staff during these late night hours, I recommend filing within business hours. As with all technology, documents can become corrupted and e-mail systems can crash. During business hours with a full staff, these are ordinary problems that can be fixed in a timely manner; late at night these problems can prevent you from meeting your deadline. Note from the trenches: notwithstanding having both of these events occur, my secretary and I completed a lengthy filing at the strike of midnight, with the help of an all night Kinko's. Learn from my experience and file within your firm's regular business hours.Practice Tip #6: Do Not Forget to E-Mail "Word" Copies of Proposed Orders
All proposed orders must be sent in the appropriate word document form to the Judge's e-mail. In the quest to comply with all the technology requirements, this rule is sometimes overlooked. This may be the most important rule because it allows the Judge to have your version of the order ready to be signed, even if the Court requires some modifications. On several occasions lately the Court has adopted my version of an order on a disputed issue and used the "˜word" version to create the final document.
Practice Tip #7: Technical Failures Can Be Corrected
Most ECF systems allow for such problems and permit late filing upon submission of a declaration describing the technical failure. In the Northern District, the rule permits such a filing if your office tried for more than one hour after noon to complete the filing. I can attest based on personal experience that the Court will permit such a filing if technical difficulties completely block the filing. Should this occur, my advice is to serve a paper copy of the document on all parties and the Court (if possible) in order to ensure that all notice requirements are adhered to.
Practice Tip #8: Start Your Filing Early in The Day
The process of having all documents converted into PDFs and scanned can be time consuming and filled with technical glitches. As with any filing, problems that emerge and are solved on the morning of the deadline are less stressful than those that appear for the first time an hour before the papers are due. In my own practice, knowing that a document that contained odd sized pages could not be properly scanned into a PDF allowed me to file the necessary "notice of paper filing" without having to mount an eleventh hour effort to complete an impossible task.
Practice Tip #9: Do Not Forget to File A Courtesy Copy for the Judge
As with any federal court case, most Judges have individual rules requiring submission of a chambers' copy. With the advent of e-filing, these rules have flourished. Most judges require courtesy copies of all motion papers to be filed within one day of the e-filing; some require the documents to be filed by noon on their due date. In most district courts that have well developed web sites, each Judge's rules are available on line. Also, be mindful that rules can change from day to day, so get in the habit of reviewing the applicable rules before each filing. In a real story from the trenches, a Judge's courtesy copy went from a three hole punch requirement to a two hole punch requirement in one day
Practice Tip #10: Check Your E-Mail Over The Weekend
The beauty of e-filing can also be a curse: you now have instant awareness that your adversary has filed papers. Having instant access to your e-mail can enable you to get a head start on issues raised in such a filing and hit the ground running on Monday morning with a pro active plan to respond to the Friday night filing. You can also get access to the entire docket from any computer terminal and be able to view and print any document available in PDF form. After grappling with several of these wonderful late Friday afternoon "e-deliveries" I can vouch for the fact that the following Monday is brighter when I have had the full weekend to plan the response.
Bonus Tip#11: Share Your Experience With Your Colleagues
As always, knowledge is power. Today's e-filing headache can help your colleagues and/or clients gain tomorrow's tactical advantage. Embrace the new technology, or at least know who to call when you get that fateful e-mail telling you your case has been designated for e-filing. I await your war stories.
Mr. Bodzin is a partner that represents large corporations, small businesses and individual professionals in connection with complex business and commercial transactions and disputes. He is licensed to practice and admitted in California, New York and New Jersey. He can be reached at (510) 835-6825 or rbodzin@burnhambrown.com