Civil Electronic Court Filing in District Court - CM ECF
Copyright 08/14/2004 by Karyn Beyer - Updated 05/17/2007
What Administrators Need to Know
Summary: Many Federal civil courts are implementing Electronic Court Filing systems, which require mandatory compliance and participation from counsel. These programs raise significant issues for administrators in terms of training and software needs, changes to filing procedures, and require attention to new areas of professional liability risk exposure. While electronic records do not differ in their retention requirements, work flow processes must be redesigned to capture critical dates and communications when transactions are solely via e-mail and internet.
The following article addresses e-filing in the California Federal Courts in general terms, focusing on critical issues to be reviewed, regardless of the Court of practice. Of particular interest to administrators in the Los Angeles region are the particulars of e-filing in the Central District of Los Angeles. The Central District is currently e-filing in the Bankruptcy and Criminal Divisions, and the Civil Division is scheduled to begin e-filing in January 2008. At that time, ALL civil cases will be e-filed (new actions and existing cases), so firms should begin planning well in advance for this transition. Attorneys will be required to attend mandatory training in order to get their logins and passwords. The Court does offer limited in-house training under specific circumstances and guidelines. As of this writing, training is currently open only to criminal attorneys; firms should monitor the Court's website for any updates to information and the release of training dates. Finally, don't throw away those bluebacks - the Central District's Local Rules required that Courtesy Copies of e-filed documents be prepared in accordance with Local Rule 11-3 or as otherwise directed by the assigned Judge.
Chances are, you've heard of it. Perhaps someone in your office is doing it. Maybe a colleague passed on some rumors. Regardless, you know its coming... For some of you, it's already here.
The Case Management/Electronic Case Files Project - as it's affectionately known by the Federal Judicial Center - began rolling out into District Courts in 2002, and is currently being used in 48 District Courts, including the District Courts of California. Northern, Eastern and Southern Districts are all mandatory e-filing for civil, criminal and bankruptcy matters, and the Central District is currently e-filing criminal and bankruptcy, with civil scheduled to go online in January 2008.
What exactly is CM/ECF? The program requires nearly all court filings - in nearly all cases - to be done electronically. Only in limited circumstances will cases be exempted from the program (i.e., cases in which there is a pro se litigant); as with all court practices, local rules are critical to understanding how CM/ECF is applied within each District and Division. Documents to be filed are submitted via the internet in .pdf format, and Notice of Filing is sent electronically to all parties. This Notice of Filing replaces the "File Endorsed" stamp traditionally used to verify court receipt, and the Proof of Service. Once Notice is sent out, counsel/staff is responsible for accessing the document (via the PACER program), printing it and calendaring it as appropriate. The CM/ECF program works closely with the Federal PACER program, and like PACER, the software is generally the same regardless of Federal District or Division.
As with all new technologies that make their way into firms, there's good news and bad news. First, the good news: the program is relatively easy to use, can be quite efficient and can save time and money (particularly in messenger and express delivery fees). Now, the bad news: In order for CM/ECF to work efficiently in your office, you need to take the necessary steps to prepare your technology, your internal systems and your attorneys and staff. From an administrative perspective, there are specific areas that require development, management and training before introducing CM/ECF to your firm's practice in terms of both program management and risk management.
Staffing CM/ECF
How you staff the CM/ECF responsibilities will depend largely on how much you will be using the program and the Districts in which you will be practicing.
If you do only limited practice in District Court, you might find it more efficient and controllable to train only a handful of your staff in CM/ECF. Some firms train 2-3 litigation secretaries and/or their Word Processing Department in the CM/ECF process. These individuals handle all aspects of CM/ECF, including document conversion, scanning, internal document management, maintenance of attorney accounts and the actual e-filing. By keeping control centrally located amongst a select group, it makes it much easier to manage the myriad of details involved in the process.
If your firm has a large percentage of its cases in District Courts, then prepare to train both staff and attorneys. Most District Courts, as well as the Federal Judicial Center, provide extensive training manuals, streaming video instructions, and mock filing sites to assist in educating legal personnel in the process. It may also be both cost efficient and time efficient to have your own internal staff trainer learn how to teach this program or to bring in a private trainer.
The Local Rules for each District may also aid in making a determination on how you will control the program and who will be trained. Some courts place the training onus directly on the firms, and it's your decision as to who needs to learn the processes involved. Other Districts, however, require attorneys to attend mandatory training sessions before they will issue login ids/passwords. (Note, logins/passwords are District-specific, so if counsel is working in multiple Districts, they must sign up with each).
The CM/ECF program is essentially "intake" - documents are put into the docket, provided to the court, and Notice sent out to parties via this program. However, the "outtake" portion of the system is PACER (Public Access to Court Electronic Records) - you must use PACER to retrieve filed documents, review the docket, generate reports and access the court's case calendar. PACER accounts are usually by firm (no need for each individual to sign up) and they work in all participating courts (including Appellate, District and Bankruptcy). Unless those involved are already well versed in using PACER, you will need to include this in your training program.
The Attorney CM/ECF Login Account
The key that unlocks the CM/ECF filing process is based primarily around the attorney login and password. Attorneys must sign up through the Court for their login and password. If counsel is not already in the Court's CM/ECF system, then the need for registration will be provided upon a party's first appearance and case assignment to CM/ECF. Only attorneys can get login accounts, and the Court assigns them filing privileges for their specific cases. Documents submitted under an attorney's login are deemed signed by that attorney - the electronic signature created by logging in replaces the flourish of the pen.
It is an ethical breach for an attorney to file a document under another attorney's login id/password without permission - the electronic equivalent of forging someone's signature. For this reason, don't leave the master list of login ids/passwords on an open file system or hanging on a bulletin board. Yes, you should have a master list that keeps track of this information, but manage it appropriately. In the case of documents requiring multiple signatures or signatures of someone other than the filing attorney, check the local rules. Some courts require that the document must include a declaration or statement attesting to the concurrence of the signatory for the filing of the document, other courts require that the signed signature page (and only the signature page!) be scanned and e-filed.
The attorney's login account provides a utilities frame that allows for additional e-mail recipients to be listed on a given case. It's a good idea to add secretaries, calendar clerks, case clerks, paralegals, etc. to this notification list. You can't have too many people receiving notice, but you can definitely have too few, especially if someone is in trial or on vacation and not available to react to critical notices. You can have multiple attorneys assigned to a case - and you should for risk management purposes. At the very least, everyone on the caption should have an account and be assigned to that case. When a Notice of Filing is sent by the Court, that Notice will go first to the Attorney(s) listed for the case. Most firms have enough challenges and malpractice risks in just managing paper trails in their office; you now must develop a means to manage the electronic trail. One technique used by a number of firms is to employ a unique attorney address for court communications so that they stand out from routine e-mail correspondence. The easiest way to add secondary addresses to an attorney login account is to include them at the time of registration. Otherwise, you will need to contact the court directly to add additional e-mail recipients.
Another approach is to create a CM/ECF Notice Group with its own e-mail address for use in all cases (i.e., ecfcalendar@smithlaw.com) as a secondary notification address. Again, this allows for central control within a key group of people who have been trained in the CM/ECF process. Regardless of who is getting the Notice, make sure there is a procedure in place to confirm that the documents referenced are being handled in an appropriate fashion. Everyone may simply read the e-mail Notice; make sure someone is printing it, calendaring it, copying it, etc. The documents referenced in the Notice need to go through the same process as a document received in the mail, and one of the most critical recipients of the information is the Calendar Clerk. While Calendar Clerks don't necessary need to know the entire CM/ECF process, they are an integral part of the information loop and it's imperative that they receive notice of e-filings just as they do paper filings.
Software and Internal Document Management
The most obvious - and usually the easiest - part of the software equation for CM/ECF is your Internet browser. The current browser recommendations are Netscape 7.1 or higher, Internet Explorer 6.0 or higher, or Firefox 1.0 or higher. If you are running browsers other than those suggested, plan to install a compatible browser on at least a few machines, so you have a backup program in case of compatibility issues.
There are no word processing program recommendations or requirements, as all documents must be submitted as .pdf documents. This requires software to convert documents to .pdf, and while Adobe Acrobat PDF Writer is the recommended program other tools are available on the market, such as JAWS pdf Creator, Dane Prairie Win2PDF and RoboPDF, all of which will provide an acceptable result. While .pdf conversion software is becoming more commonplace, if you aren't currently running it on all machines, the purchase/installation of the programming will go back to the staffing question - are you leaving control of CM/ECF with a small group of people, and perhaps a few dedicated computers, or will you be purchasing the appropriate licenses to install the needed software for everyone on your staff... And, if you are not scrubbing all Word documents prior to departure from the firm, should you be deploying .pdf services so that all documents can leave the firm electronically in a fixed format? Some firms have expressed concern over metadata, which can be tracked in a pdf document. If this is a security issue for your attorneys, consider software that will scrub/strip all documents before they leave the firm.
For documents created in-house, courts require that you convert pleadings and other electronic documents directly to .pdf using Acrobat or the equivalent; do not scan hard copies and save as .pdf. Virtually all participating courts include somewhere in their ECF orders/rules that pleadings may NOT be scanned (scanned documents are significantly larger than converted documents). This conversion process can occasionally result in minor formatting changes (page length, widows/orphans), so always print and proof a converted file before submitting it, particularly when court rules impose particular guidelines or restrictions on document preparation/presentation. For documents created internally and filed, no signature is required; the attorney login id is deemed the signatory to the document.
Other documents that are generally some form of exhibit (forms, client documents, case law) which cannot be internally converted into .pdf will require scanning and saving as .pdf. Scanning should always be the exception to the rule, when there are no other options. Case law is now routinely delivered as an e-mail attachment and can be viewed on screen and converted to pdf. Many court reporters are offering e-transcripts (using the free viewing software available from www.reallegal.com) as a matter of course; as such, transcripts can now be easily manipulated, pages extracted and pdf conversions made without destroying the binding, removing all those post-it notes or struggling to find a clean copy that hasn't been highlighted on every page.
That being said, sometimes you will have to scan. Most scanning programs automatically include an option to save as .pdf files. In fact, any documents that will be used as exhibits or attachments can be prepped and stored electronically well in advance of filing deadlines. Documents are identified and named when submitted for filing; you do not have to know which is Ex. A and which is Ex. B before converting/scanning and prepping the document - that determination can be made when the documents are actually submitted to the court via the CM/ECF program.
It is expected and understood that some documents will be too large or cumbersome to convert to electronic format for filing. In this case, check the local rules - most courts allow filing of a Manual Filing Notice, submitted electronically (form available at the court website) and the documents are then filed and served in the traditional method. Often, this traditional service method also applies to documents filed under seal. Routine discovery is not affected by CM/ECF, as discovery documents are not regularly filed with the court.
As pleadings and documents are electronically prepared for filing, they need to be saved and stored electronically. These should be saved in a matter specific directory in your document management system in a manner that shows that they are the actual e-filed document. You might have a document prefix of "e-file: DOCUMENT NAME" so that each user can easily locate the actual filed document. This is even easier if you use folders for your cases and a hierarchical case organization within the folder. If the internal system is not clean and clear, avoid assuming you have the right document - play it safe and access the court-filed document off the PACER system, and save that document to your internal system. (Any document retrieved via PACER can be saved to disk).
You will also need to track hard copies of all filings. When an e-filing is successfully completed, the CM/ECF system will generate a "receipt" of e-filing - the Notice of Electronic Filing. This receipt is your confirmation that the filing was successful - the electronic "file endorsed" stamp. It should be attached to hard copies of the documents for in-house files. Finally, notification of this filing should be submitted to the calendar clerk for processing.
Managing the New 24/7 Office Environment
One thing that attorneys find particularly appealing about the CM/ECF program is that most filings can be done 24 hours a day, 7 days a week. No more waiting on messengers, getting in before the doors close, rushing to meet the FedEx deadline. Some judges, however, have decided they are not particularly fond of this freedom, so always check local rules. A few judges are imposing their own deadlines; i.e., even though the system is available until midnight, Judge Timely wants all e-filings completed by 4:00 pm. While this extension of time is seemingly good news for the attorneys, it poses staffing challenges. Most firms are not willing to have secretaries working until midnight, waiting for a completed motion - and few secretaries are willing to do it. It's imperative that you decide prior to implementation what in-house guidelines will be established for filing deadlines. Attorneys may now be free of the court's time clock, but you have a staffing time clock that has to be managed. The lack of a court-imposed deadline can be a valuable asset, so long as your office is staffed and prepared accordingly. Managing this aspect of CM/ECF is all about planning ahead, and having adequately trained - and available - staff on hand.
The CM/ECF program is growing quickly throughout all District Courts and divisions, including Criminal and Bankruptcy. The state courts are investigating their e-file options as well. When first integrating any kind of e-file program into your firm, it's imperative to fully investigate your needs, your risk and your options for managing its usage. E-filing is just another step on the legal technology ladder; we all survived the transition from punch cards to direct keyboard computers, from DOS to Windows. Odds are, this will be pro forma and second nature to all legal professionals in no time at all. Remember the lessons learned from past technology changes - planning, investigation, training and time will assist in making the implementation go smoothly for everyone involved. And, to make it go smoothly at your firm, you need to focus on these items:
- Decide how you will staff it and who needs to be trained;
- CM/ECF works closely with PACER - don't forget to include this program in your training plans;
- Keep a master list of all login accounts and passwords, but keep it secure;
- Err on the side of caution and add an abundance of people to the e-mail notification list for each case - better to be safe than sorry;
- Create a distinct e-mail group that includes individuals specifically responsible for handling electronic notifications;
- If you don't plan on rolling out CM/ECF to the entire office, then consider a stand alone station with all appropriate software, hardware (i.e., scanner) and programs to handle e-filing;
- Create an in-house intake form/cover sheet that sets forth all pertinent details for each e-filing, such as court case no., file no., attorneys assigned, name of document, type of filing, related documents on docket, exhibits and deadline;
- Develop a firm policy on internal deadlines - just because attorneys can file at midnight doesn't mean you can provide the staff to assist them.
There is no reason not to pursue e-filing as soon as it is available. But, be prepared and deliberate in your approach. And, do not underestimate the need to properly train attorneys and staff - a little preparation and planning will eliminate problems and professional liability exposures, giving your firm a new resource welcomed by everyone involved.
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About the Author: Karyn Beyer has taught professionally for more than 15 years and currently teaches at City College of San Francisco. She has more than 10 years' experience as a litigation secretary and has worked in a variety of litigation practice groups, including general civil litigation, construction, real estate, business and employment. Ms. Beyer currently offers training seminars and private instruction through Davidson Legal Staffing in the Bay Area and Southern California.