WHEN WAS THE last time you saw the words "federal government" and "trailblazer" in the same sentence? Nonetheless, "trailblazer" is the appropriate word to describe the role that our federal judiciary has played in the development of electronic filing of court pleadings. Beginning in January 1996, when the first federal court began allowing the electronic filing of pleadings and continuing to the present, the federal judiciary has compiled an impressive record of successes.

The federal Electronic Case Files (ECF) system is overseen by the Administrative Office of the U.S. Courts. To ascertain the current status of federal e-filing and the probable roadmap for its future, the authors interviewed Gary Bockweg, the AO’s manager of case management and electronic case files, and Mel Bryson, the AO’s assistant director of the Office of Information Technology.

Both Bockweg and Bryson pronounce themselves pleased with the reaction of the courts, judges and attorneys to ECF. They believe the federal judiciary, from the onset, made two key fundamental decisions correctly—to use the Internet and to require that documents be in Adobe’s Portable Document Format (PDF) to maintain formatting across all platforms.

ECF has been a triumph from the beginning. As the states struggle with varying private solutions and experience varying degrees of success and failure, the federal courts continue to roll out ECF software upgrades and expand the number of courts using the system. Have they hit a few potholes in the road? Sure. More on that later, but here is the impressive record thus far.

As of November 2000, the following federal courts have implemented the ECF system:

• District Courts – the Western District of Missouri, the Eastern District of New York, the Northern District of Ohio, Oregon
• Bankruptcy Courts – Arizona, the Southern District of California, the Northern District of Georgia, the Southern District of New York and the Eastern District of Virginia

The Court of Appeals for the District of Columbia and the Fourth Circuit Court of Appeals have laboratory experiments operative.

Six more courts are scheduled to implement ECF by the end of the year with an additional 40 joining the system by the end of 2001, and 50 more coming on board in each subsequent year. Currently, it is projected that all federal courts will have ECF in place by the end of 2004 or the beginning of 2005.

The statistics bear witness to the high degree of acceptance electronic filing has received. Over 10,000 lawyers have registered with the federal system, over 4,300 have actually filed, and more than 600 members of federal court staff have received training. Excluding the asbestos cases from the Northern District of Ohio, more than 108,000 cases have been filed electronically thus far, an average of 7,000 per month. Saving trees? You bet. More than 1.2 million documents have been filed to date.

Why has the federal system been so successful? The AO has carefully followed the KISS principle: Keep It Simple, Stupid. The learning curve for ECF isn’t steep. Did you have any trouble learning the rules for Candyland and Chutes and Ladders? If not, you won’t have any problem mastering federal electronic filing.

What are the essential steps in e-filing? Lawyers (or staff) create a document on their word processing software, "print" it as a PDF file (it doesn’t really print, but rather creates a file in PDF format that you then save to your hard drive), connect to the Internet, log on to the ECF system, specify the case in which the document is to be filed, select a docket entry, select the parties and append the PDF document. At training sessions, lawyers easily master the process in just a few minutes. The entire process (minus the original document creation) takes about two minutes and concludes with an electronic receipt.

What technology must a lawyer have to participate?

• A PC with Windows, or a Mac
• A word processing program (Word, WordPerfect, etc.)
• Internet access and a browser
• Adobe Acrobat (or other PDF writer)

Most attorneys have everything except Acrobat (cost to practicing attorneys: $120 by calling 1-888-502-5275—have your Bar number available). Why is Acrobat necessary? To preserve formatting. The Adobe Acrobat Writer produces documents in PDF (portable document format), which is now a de facto standard in the federal government and private industry. Producing files in this format means that documents you send the court will have their fonts, spacing, pagination, footnotes, tables, indices, etc. preserved exactly as you created them.

Are all federal systems exactly the same? No, but the variations thus far are minor. Courts may have a different "look and feel" to their home page, and they produce their own training and newsletters, etc., but the core of the system remains the same. Bockweg indicated that the AO is currently studying the degree of flexibility that is desirable from court to court. More and more courts are developing custom "add-ons" which work with the federal system to enhance their own workflow methodologies. This, naturally, creates problems when AO enhancements "step on" the local applications and the local court has to retool its prior work to integrate with the new version of the ECF product. The AO has even considered giving courts the source code and allowing individual modifications, but there are serious implications (chiefly the potential loss of uniformity, the danger that recoding will have unforeseen repercussions and the significant maintenance costs as each application becomes more and more customized) and no decision in that arena has yet been made.

Is e-filing mandatory? That is a local court decision. In the Bankruptcy Court for the Eastern District of Virginia, Chapter 7 filings must be electronic. Each court is making its own determination, but as the comfort level with ECF increases, more courts will certainly choose to forego paper entirely.

When is a document considered filed? A critical question, but you need to check local court rules. The ECF system itself is open for business on a 24/7 basis, but local courts may determine whether 11:59 p.m. means "filed that day" or "filed first thing in the morning on the next business day." The majority of courts use the "day clock"—if a document is filed before midnight, it is filed that day. For those attorneys who rely on procrastination as a business method, this is a godsend. But if your Internet connection goes down at 11:55 p.m. and doesn’t come up for 15 minutes, the attorney is SOL (this is a technical term meaning "sorta out of luck"). If you file at the last minute, the risk of a technical failure falls on the attorney.

Mishaps? A few, but Bockweg and Bryson say they have been very limited. There have been infrequent technical glitches, but no disasters. Thus far, there have been no hacking incidents or penetration of the system by viruses or worms, though security remains a constant concern. Unlike the average law firm, of course, the federal courts are religious in updating their virus signatures to ward off the latest and greatest creation of the virus and worm writers. How is security effected? In simplest terms, the federal system employs a "clean" server behind a firewall and a "dirty" server in front of it. Normal users of the system have no access to the clean server, and therein lies the system security.

What’s wrong with ECF? Nothing new debuts without criticism. The chief complaint has been that the ECF system isn’t as fast as it could be. The original technology used, unsurprisingly, became "clunky," as all technologies do in an appallingly short time. The AO continues to target "speed of download" as the most desired improvement of its system. The second most frequent complaint involves communication about the ECF system, which is primarily a local issue. Courts need to provide ECF users with frequent training, a lot of hand holding and constant notification about enhancements and changes.

Do all Internet users have access to federal court filings? At the moment, the answer in federal court is yes. But the courts are rethinking their earlier decision. The number-one hot topic in the entire e-filing world, in both state and federal courts, is the tension between the right of public access and privacy rights. Do the details of your divorce belong on the ‘Net? Your medical history? Your credit card numbers? Your child’s juvenile scrapes with the law? While anxious to keep the process of government open to the public, the courts are examining their obligation to protect the private information of individuals. Technology itself creates mischief, as malefactors create Web bots and other devices to collect and sift data for their own ends, sometimes using the data for criminal purposes and sometimes using it for irritating marketing efforts by phone, fax and e-mail. As Bryson wryly noted, "We’re going to wrestle with this issue for a long, long time."

The Judicial Conference has appointed a Committee on Court Administration and Case Management that meets twice a year and is intently studying this controversy. One proposal involves creating an electronic "holding area" in which documents are officially filed, but not publicly viewable until some period of time has passed in which either party may request that the document be sealed. While the committee is deliberating, the AO is putting together a matrix of all current state approaches to this problem, which should be posted on its Web site by spring of 2001.

Are digital signatures required? Though digital signatures have been validated by federal law, federal courts will continue to use a password/ID system to constitute a legal signature for the foreseeable future. Thus far, this simple system has performed admirably, and Bockweg and Bryson say the federal courts will wait until digital signature technology standardizes before embracing it.

What about pro se filers? The AO has not yet fully addressed the problem of pro se filings, but currently handles those filings through court imaging of documents and courthouse kiosks, which can be easily utilized by pro se filers.

What about XML? XML, the trendy byword of the e-filing world, is on the AO’s radar screen, but thus far the AO remains content to be a spectator. XML (Extensible Markup Language) is a tagging system that may ultimately allow a great deal of useful information to be parsed from legal documents, and, as an example, may be used to channel documents and information through the case management workflow process. So far, there is no adopted, enforceable XML standard, and private companies have developed many XML "flavors." Should Adobe, the maker of Acrobat software, integrate XML with its product as planned, Bockweg and Bryson think it likely that the federal courts will utilize their brand of XML.

What have we gained thus far? While paper won’t disappear from courts in the short term, ECF has already proven its worth. Lost files are a thing of the past. The time consumed in transferring files from place to place has evaporated. Judges and counsel need not carry bulky files to their homes or pack extra suitcases while traveling. When used in conjunction with case management, ECF speeds workflow and provides real time docket entries. The expenses of couriers, postage, and runners have diminished. Service of process is simpler and cheaper. Last, but certainly not least, in the end we will vastly reduce the number of sacrificial trees required to indulge our litigious society.

What can states learn from the federal system? First, that the federal system works and that they may not need to reinvent the wheel. Second, that it may be very desirable to have state systems that more or less follow the federal methodology so that users of the state system and the federal system are not confused as they move back and forth between the two. Third . . .be careful.

It is true that the AO has considered the possibility of ultimately hooking up with private firms to exchange resources and hasten the development of e-filing upgrades by sharing information and utilizing the vaster programming resources of the private sector. So far, no decision has been made to do so, but stay tuned. Both Bockweg and Bryson emphasized that any such decision would involve multiple companies and that no exclusive arrangements would be considered.

So where are the federal courts going now that they have a beachhead? The AO itself is continuing to debate internally and with feedback from participating courts. Nothing is static—and in the technological world, what you roll out today is obsolete on the day it is introduced. One prominent change in the ECF system is that it is now CM/ECF—case management and electronic case filing. The AO is emphasizing to the courts that ECF includes case management to expedite cases through the normal workflow process. However, the two systems remain divisible so that paper cases can be scanned into the system and then moved through the new case management system. As previously indicated, more local flexibility may be allowed, and more interplay with private companies. The AO remains committed, in part, to evolving with the changing nature of technology, and to watching, studying and incorporating new technology as it proves its worth.

The final prediction? The remarkable pioneering efforts of the federal courts will be hard to maintain. The AO, having done a first class job to date, is going to be stretched thin by having to support so many courts across the nation and by the demands of keeping up with the technology blitzkrieg. However, the AO has recognized its limitations, and Bockweg and Bryson are clearly looking to a changing role for the AO as e-filing evolves, perhaps involving a higher tier support role, public policy making, public/private alliances and other innovative approaches to supplying federal courts with technological advances and guidance for using them. As the federal courts approach technological warp speed, the AO deserves high marks for its trailblazing work.

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