Committee on Pretrial Practice & Discovery Winter 2009 NUTS AND BOLTS E-Filing in Federal Courts: How to Avoid Common Mistakes By Daniel T. Fenske O ur federal court system is slowly starting to take advantage of the technological advances associated with the information age. Through the Case Management and Electronic Case Files (CM/ECF) system, the federal judiciary has replaced the old docketing and case management system with a modern, quick, and (relatively) user-friendly case management program. CM/ECF gives courts the option to store case file documents electronically, as well as to accept filings over the Internet. CM/ ECF therefore lessens the stress of one of the most tedious and yet important tasks of the young litigation associate: ensuring that motions, orders, memorandums, notices, etc., are promptly and properly filed or lodged with the court and served on all parties to an action. Electronic filing is more complicated that one might think, and a careless attorney risks having filings stricken or deemed untimely if that attorney does not follow the widely varying rules on e-filing in each different federal court. For example, some courts allow documents up to five megabytes in size; in others, the limit is two. Some courts require courtesy copies; others do not. The only way to know your court’s particular deadline is to research the applicable local rules and standing orders. The History of CM/ECF CM/ECF was set in motion gradually, starting with bankruptcy courts in 2001. District courts began to roll the system out nationally in 2002, and appellate courts in 2005. CM/ECF is more than just electronic filing. It replaced the federal courts’ older, arcane docketing system with a modern one, accessible online. Through links on the docket sheet itself, parties and the public can now view court filings at the click of a button (albeit for a cost of eight cents per page, with a maximum of $2.40 for any document). For the lawyer, the ability to file a document electronically is the CM/ECF system’s most useful tool. Virtually all bankruptcy and district courts allow e-filing; only four circuit courts do (the Fourth, Sixth, Eighth, and Ninth). There are a few e-filing requirements common to all CM/ECF users, no matter the court. First, all documents filed electronically must be in Portable Document Format (PDF). This format was chosen because “it allows a document to retain its pagination, formatting and fonts no matter what type of computer is used to view or print the document.”1 Further, CM/ECF requires a login and password, with each court deciding for itself who may have access Daniel T. Fenske is an associate with Jenner & Block LLP in Chicago, Illinois. to the filing system. To electronically file a document, an attorney must have both a PACER account and a CM/ECF account. An attorney may use his or her law firm’s PACER account, but CM/ ECF accounts are issued only to individuals. Most courts limit CM/ECF accounts to attorneys, U.S. trustees, and bankruptcy case trustees, although some courts allow bankruptcy claimants and pro se litigants to file electronically as well.2 Existing court filing fees apply, although there is no additional fee for filing electronically. When a document is filed electronically, all attorneys on a case who are registered to file documents electronically will receive an email notification, including a hyperlink to the document filed. Finally, the federal rules allow service of documents electronically if the parties consent. Service of process, however, is not allowed electronically. Unique Local Rules The federal rules and the national CM/ECF system provide rules that govern only the broadest aspects of the e-filing system. Thus, each court has the authority to establish for itself local rules governing e-filing.3 Further, almost all courts have issued a general order or other procedural device governing issues relating to e-filing. These rules govern, in quite extensive detail, the steps a party must take to e-file a document. The rules differ from court to court. To illustrate the typical rules these local orders lay down, what follows is a detailed discussion of the particular rules for the District Court for the Northern District of Illinois (the Northern District). The article then contrasts the rules for the Northern District with other major federal courts, including the Southern District of New York and the Central District of California. Obviously, this compare-and-contrast is not intended to be an exhaustive review of all the rules of all the federal courts. Rather, the discussion provides an overview of the principle rules that an attorney should look for when reviewing the local rules of the relevant court. Accordingly, this should be the beginning, not the end, of the research required to properly e-file in a particular court. The Northern District of Illinois The rules governing e-filing in the Northern District are contained in General Order No. 07-0023, the “General Order on Electronic Case Filing,” entered on October 26, 2007 (the Order). This order lays out comprehensive rules regarding e-filing in the Northern District. The Order begins by stating that every case, “civil, criminal, and admiralty,” is presumptively available for e-filing, with the exception of petty offenses, grand jury matters, sealed cases, or any other case Published in Pretrial Practice & ♦Discovery, Volume Number 2, Winter 2009. © 2009 by the American Bar Association. Reproduced with 4 Section of Litigation American Bar17,Association permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association ppNd_wi09.indd 4 3/25/09 2:50:49 PM Winter 2009 a court orders not assigned to ECF. The Order then requires that virtually all documents filed by an “e-filer”—defined as a person “registered to use ECF in the Northern District of Illinois and who has been issued a login and password”—be filed electronically. The Order lists 13 types of documents that may not be filed electronically (such as charging documents in a criminal case, or sealed documents), but the run-of-the-mill filing in a civil or criminal case must be filed electronically if a party is to electronically file at all. E-filing constitutes the official filing of the document under the federal rules. Thus, the deadline for filing a document applies to the time the document was e-filed. In the Northern District, documents must be e-filed by midnight in order to be considered timely filed that day. By signing up to e-file, a party consents to electronic service, and thus is not entitled to receive a paper copy of any document filed by another e-filer. The Order, however, does not completely eliminate the need to file paper copies. Indeed, the Order requires that, within one business day of e-filing, the party serve a paper copy on the judge in the case, unless the judge indicates that filing a paper copy is not necessary. When a document is properly e-filed, the system generates a Notice of Electronic Filing, which is then sent to every party on the case. This email constitutes service under the federal rules. Therefore, if all parties to an action are e-filers, a party need not include a certificate of service in the filing. But if any party to the case is not an e-filer, then the filing party must serve a paper copy on the non-e-filing party in accordance with normal rules of service. Further, in a case where any party is not an e-filer, every party must include a copy of the certificate of service regarding service on the non-e-filing party in the e-filed document. The Northern District contains a file size limit for all e-filed documents. No document may exceed five megabytes. When a document exceeds this limit, it must be “broken” into pieces and filed separately. Each component must be labeled appropriately. For instance, for a large brief with multiple exhibits, a party may file one memorandum, and then multiple documents titled “Exhibits A through D” and “E through G,” and so on. The Order requires that all documents be signed by the attorney under whose ECF account the document is being e-filed. Thus, each document must contain a “signature block and must set forth the name, address, telephone number, and the attorney’s bar registration number, if applicable.” The signature must be in the form “/s/ Attorney Name.” A document that must be signed by more than one party may be e-filed by filing a document that: (1) contains all necessary signatures (2) represents the consent of the other parties on the document (3) identifies on the document the parties whose signatures are required and then, within three court days of filing, the other parties submit a notice of endorsement (4) conforms with any other manner approved by the court When a document has been successfully e-filed, a copy of the Notice of Electronic Filing will appear on the last screen in the system. Comparing the Northern District to Other Courts Though many courts have rules similar to those of the Northern Committee on Pretrial Practice & Discovery District, every court differs in numerous ways. The most common differences are discussed below. File size. The Northern District’s five-megabyte limit is quite large compared to other courts. In the Southern District of New York (SDNY), a document may not exceed 2.5 megabytes. In the Central District of California (the Central District), the limit is 4.5 megabytes. In the District Court for the District of Columbia (DDC), only two megabytes are allowed. Combining motions and accompanying material. The Northern District requires that parties separately file a motion and a memorandum in support of the motion. But it recommends that parties file a document and any attached exhibits in one document. The DDC requires exactly the opposite. Motions, memorandums, and any other supporting documents must be filed together. But attached exhibits must be filed separately. The only way to know the specific rule for a court (or, if the court even has a rule on this subject) is to read the court’s rules. Consent to electronic service. In the Northern District, a party consents to electronic service when that party signs up for a Common Pitfalls of E-filing Attorneys throughout the United States make a few common mistakes when e-filing a document. Thankfully, many courts have expressly identified those common mistakes for attorneys, and have posted them on their websites. These mistakes include • misnaming documents (e.g., calling “motions” “notices”) • failing to file appearances, or failing to link to the right party • failing to change email addresses so that parties miss important filings • failing to withdraw appearances • failing to select multiple motions (when filing alternative motions, e.g., motions to dismiss or for summary judgment, parties are required to check both boxes) • failing to properly seek leave to file or follow up after leave has been granted (some courts, like the DDC, require that a document attached to motion for leave to file must be refiled after the motion is granted) • failing to properly link to oppositions or replies, so parties know what exact issue a particular filing addresses • failing to e-file a notice of filing regarding documents that must be filed in paper form because they are too large to be e-filed • failing to edit or review docket entries before submission • wrong or no electronic signature • improperly filing a sealed document* Use this as a checklist before e-filing any document. * See The Big “Ten” Problems with Docketing by Attorneys in ECF; Electronic Filing in the U.S. District Court Northern District of Illinois 3. Published in Pretrial Practice & Discovery, Volume 17, Number 2, Winter 2009. ©American 2009 by theBar American Bar Association. Reproduced with Association ♦ Section of Litigation 5 permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association ppNd_wi09.indd 5 3/25/09 2:50:50 PM Committee on Pretrial Practice & Discovery CM/ECF login and password. In the Central District, by contrast, merely signing up for the CM/ECF system does not constitute consent to electronic service. Instead, when signing up for the system, a party must separately indicate that it consents to electronic service. Certificates of service. In all districts surveyed, if all parties consent to electronic service, then the Notice of Electronic Filing effectuates service, and no certificate of service need be filed separately. If, however, at least one party has not elected to accept electronic service, courts differ. In the Northern District, the filing party must file a certificate of service with the e-filed document, and then must serve the party with a paper copy under the normal service rules. In the SDNY, the process is reversed. The filing party must first serve the party not accepting electronic service and then must file a separate affidavit of service electronically. Emailing copies of e-filed documents. In the Northern District, the rules never require that a party email any document to the court. A number of other courts do require this. In the SDNY, when filing a paper document initiating a lawsuit (e.g., a complaint), the party must email a PDF copy to the court clerk’s office within 24 hours of the filing. The DDC has a similar rule. Also, some courts require that parties email courtesy copies to a judge’s generic chambers email account. Signature. In almost all e-filing courts, the login and password used to access the CM/ECF system constitutes an attorney’s signature. Hence, the requirement that, to file a document, the party must be logged in under the account of the signing attorney. Most courts, however, still require a signature block on the actual Winter 2009 PDF document as well. As noted above, the Northern District requires a document to contain a “signature block and must set forth the name, address, telephone number and the attorney’s bar registration number, if applicable.” The signature must be in the form “/s/ Attorney Name.” In the DDC, the signature also reads “/s/ Attorney Name,” but the DDC also requires the signature of local counsel for any pro hac vice attorneys. In the SDNY, the party must merely put “/s” on the signature line, with the signing attorney’s information included below. In the Central District, the party must sign by putting “/S/ - Name.” Conclusion Despite the potential pitfalls of e-filing, it has provided many benefits to attorneys. In almost all courts, parties have until midnight to file, and thus don’t have to rush to court in a hurry to ensure a document is timely filed. Further, having documents in electronic form allows lawyers to access and file documents from anywhere in the world. And the system seems to be working. In short, the details and headaches associated with e-filing are a small price to pay for the convenience the CM/ECF system accords. Endnotes 1. Frequently Asked Questions about the Case Management/Electronic Case Files System, www.uscourts.gov/cmecf/cmecf_faqs.html (last visited Nov. 10, 2008). 2. Id. 3. See Fed. R. Civ. P. 5(e); Fed. R. Bankr. P. 5005(a); Fed. R. App. P. 25(a); Fed R. Crim. P. 49(d) (each authorizing courts to establish local rules requiring or allowing e-filing). Published in Pretrial Practice & ♦Discovery, Volume Number 2, Winter 2009. © 2009 by the American Bar Association. Reproduced with 6 Section of Litigation American Bar17,Association permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association ppNd_wi09.indd 6 3/25/09 2:50:50 PM