Bar Journal - Spring 2006
Assessing The Electronic Case Filing Experience In The District Of New Hampshire
By: Attorney Daniel J. Lynch
Electronic case filing, otherwise known as CM/ECF, commenced in this district in selected pilot cases in April 2004. On October 1, 2005, it became mandatory in all cases in this district. This revolutionary shift in the way documents have been filed and maintained for centuries has changed the practice of law and internal workings of the court in ways that could not be fully appreciated when the project began. I had the good fortune and privilege of serving as the Project Manager for CM/ECF and working with numerous outstanding persons both inside and outside the court to bring the concept of electronic filing to a reality in this district.1 The process of preparing for and implementing CM/ECF in this district has taken more than three years. The following is my assessment of the electronic filing project in New Hampshire; the successes, benefits, drawbacks and challenges from the perspective of the bench, bar and public. Please note that this assessment reflects my personal impressions as the Project Manager and the current primary ECF Help Desk contact, and I do not pretend to speak for the judges of the district or other members of the clerk’s office.
HISTORY AND DEVELOPMENT OF CM/ECF IN THE FEDERAL COURTS
For those who do not yet know, the Case Management/Electronic Case Files (CM/ECF) docketing system is a national initiative designed to upgrade the manner in which the federal courts file, maintain, and manage case documents and information. CM/ECF is a user-friendly, Internet-based system that allows attorneys to file and serve pleadings electronically and allows attorneys and the public to access court documents electronically from their own computers.
The federal judicial branch began the process of developing an electronic case filing system in 1995, when it developed a prototype filing system for attorneys involved in maritime asbestos litigation in the Northern District of Ohio.2 A year later, the bankruptcy court for the Southern District of New York began live operations on a similar prototype system.3 By 2000, a precursor system to the current CM/ECF system was operating in 14 pilot courts.4 As a result of the success in the pilot courts, the federal judiciary began a national rollout of CM/ECF to all bankruptcy and district courts later that year.
Currently, 85 of the 94 federal district courts, 91 bankruptcy courts, the Court of International Trade, and the Court of Federal Claims use the CM/ECF system.5 The Administrative Office of the United States Courts anticipates that the CM/ECF system will be operating fully in virtually all federal courts, including the United States Courts of Appeals, by late 2006. It is not yet known, however, whether the Circuit Courts of Appeals will adopt a uniform approach to electronic filing or whether each Circuit will develop its own rules and procedures governing CM/ECF, including whether electronic filing will be mandatory, optional or even permitted. Nationally, by the end of 2005 more than 400,000 attorneys had registered and been trained to use CM/ECF and over 200,000 of those attorneys had made electronic filings, with more than 24 million federal cases now on the CM/ECF system.6
IMPLEMENTATION OF CM/ECF IN THE DISTRICT OF NEW HAMPSHIRE
The District of New Hampshire decided to implement electronic filing in phases in an attempt to ease the transition for our bar to a new electronic world. Thus, the district went live with electronic case filing in civil cases filed after June 1, 2004, and in criminal cases initiated after January 1, 2005. By the fall of 2005, attorneys were filing electronically in over 60 percent of the court’s active cases. Finally, on October 1, 2005, all remaining paper cases were converted to electronic cases. Thus, presently electronic filing is now mandatory in all cases in this district.7
While ECF Training is not mandatory in this district, it is strongly recommended for attorneys and their staffs. The court continues to regularly conduct live ECF training sessions at the courthouse, which are open to attorneys, their staff members and the general public, and it offers a self -training alternative by VHS or DVD.8 As of January 2006, the court had trained nearly 600 people at live training sessions and at least 120 attorneys had taken advantage of the court’s self-training alternative.
THE NEW HAMPSHIRE EXPERIENCE
The reaction to electronic case filing from attorneys and members of the public, like the response from within the court, is mixed. From the court’s perspective, however, the implementation of electronic filing in this district has been very successful, with the current and future benefits far outweighing the drawbacks for the bench, bar, and general public.
To date, the benefits to the bar and public may actually outweigh those presently realized by the judicial branch. It is unanimously agreed that having an electronic docket, which is available 24 hours a day to both members of the bar and public through the Public Access to Court Electronic Records (PACER), is a major accomplishment from a public access perspective. It allows members of the public, bar and media superior access to court proceedings, both in terms of speed and content, than was possible in a paper environment. CM/ECF makes it unnecessary to travel to the courthouse to access and review files as any person with a PACER password can do so from any location having Internet access. In addition to that convenience, persons will no longer be frustrated by requesting files that are not available because they are either archived (for which a fee of $45 is required to retrieve a file within five business days) or in chambers with the judge; for the immediate future those case files and documents will be permanently maintained on the court’s electronic docket.9 Furthermore, by using various search and query functions available through PACER and CM/ECF, persons can more easily locate and monitor cases by case name or by the nature of suit.
For example, many civil attorneys search the district’s docket on a daily or periodic basis for new cases filed against existing clients. This practice allows counsel to inform a client of the new case, in most instances, before they have been served with the complaint. Others search by case type, such as by “Copyright” or “Anti-Trust,” to identify new cases filed in these practice areas. Similarly, some attorneys configure their CM/ECF accounts to receive electronic filings in cases in which they are not counsel of record. This allows an attorney to monitor the progress of a case in which they have some interest, such as when counsel may be participating in a declaratory judgment case in state court but is not counsel of record in the related personal injury case in federal court, or cases in which they are discussing the possible representation with a potential client but they have not yet been formally retained.
In addition to greater access, many attorneys report that they prefer the convenience of filing pleadings electronically through CM/ECF over filing and serving paper pleadings by mail or courier. For most filings, electronic filing is undeniably more convenient and, once the filer becomes proficient with the system and rules, it can be less time-consuming than submitting paper pleadings. A person having Internet access can file documents anytime from anywhere and is not limited by court hours or having to travel to the night depository. Because electronic filings are served electronically on counsel of record, obviating the need for mailing or hand-delivering multiple paper copies, many users report significant time and cost savings associated with electronic filing. This is particularly true for multiparty cases having numerous counsel of record. Furthermore, many attorneys report that they prepare and file pleadings themselves, no longer using paralegals or secretaries in the filing process.
Additionally, many attorneys prefer the speed with which they receive pleadings and court orders in electronic cases. Documents filed electronically are sent to counsel of record’s e-mail box and added to the court’s public docket (and available on PACER) within 5-15 minutes of filing.10 This functionality is appreciated by attorneys who desire instantaneous notice in the information age, particularly those who have experienced calls from the media or clients regarding a court decision before they have received the decision in the mail. Additionally, unlike in the paper world, attorneys from the same firm can now file multiple appearances and all receive instantaneous service of pleadings and court orders in a case.11
In many ways, and particularly in civil cases, electronic filing also negates the benefits or limitations associated with the proximity of an attorney’s office to the courthouse. Under the district’s Administrative Procedures for Electronic Filing, attorneys can file new civil cases either electronically or in paper format. In fact, in 2005 over 60 percent of all new civil cases filed by attorneys were filed electronically (which, incidentally, is another feature about which attorneys regularly provide positive feedback). Given that counsel need not attend a pretrial conference if their Discovery Plan is approved in advance (which happens in approximately 85-90 percent of the cases), that pleadings are filed electronically and that the vast majority of civil cases settle prior to the final pretrial conference, it is not uncommon that counsel of record may never have occasion to physically come to the courthouse from case filing to conclusion.12
It must be acknowledged, that electronic filing is no panacea for attorneys. For those who are not comfortable with technology, electronic filing can be nearly debilitating and a source of great frustration and anxiety. In fact, attorneys fitting this description present some of the most uncomfortable, difficult and sometimes hostile ECF Help Desk calls. While the vast majority of all attorneys are capable of understanding the required systems and technology associated with electronic filing, many find it overwhelming to find the time necessary in their schedules to learn about this technology. For those who practice in federal court infrequently, they may have to obtain the necessary systems and learn the rules and procedures for electronic filing in order to practice in just one case; if they do not appear in another federal case for a few years, they will need to update their systems and re-educate themselves on the rules and procedures for electronic case filing. Even for attorneys who infrequently practice in federal court, however, those who have a basic understanding of the systems and technology can rather quickly relearn how to file electronically by attending a training session and utilizing other resources on the court’s website.
FILING CHALLENGES POSED BY MULTIPLE EXHIBITS
Even persons who are adept at electronic filing can experience some difficulties with CM/ECF. The most significant problem with electronic filing using the current CM/ECF system, and one that all districts across the nation are struggling with, involves the submission of pleadings that have multiple exhibits. This problem typically arises when counsel seeks to file a dispositive motion, such as a motion for summary judgment, or submits pleadings on various issues in complex cases, such as intellectual property cases. Presently, counsel are required to save the motion, memorandum of law and each exhibit and sub-exhibit as separate PDF documents, and then must submit and name each PDF document individually within the same filing in CM/ECF.13 Depending on the number of exhibits, this process can be very time- consuming and tedious. Additionally, if a filer is taking a particularly long time adding the documents to CM/ECF, the system on occasion will “time out” during the process of filing, requiring the user to start the filing process over again. The court, along with various other courts across the nation, are considering how to resolve this issue in a way that is more user friendly for attorneys but also meets the needs of the court.
A related complaint, both from within the court and from attorneys and their staff members, relates to the length of time required to print and/or save multiple exhibit documents. Under the current version of CM/ECF, persons receiving multiple exhibit documents must separately open and print or save the motion, any accompanying memorandum of law and each exhibit. Again, for submissions having numerous exhibits, this process can be very arduous and labor-intensive. Hopefully future versions of CM/ECF will rectify this inefficiency.
In addition to multiple exhibit pleadings, the submission of large PDF documents also presents some challenges. The CM/ECF system is presently set to reject PDF documents that exceed 3 megabytes, which usually only presents a problem with scanned documents or color photographs. The reason for this size limitation has nothing to do with the desires of the court; the problem is that depending on the speed of outside user’s Internet service, attorneys and members of the public may have a very difficult time opening large PDF documents. For instance, a person with dial-up Internet service may have to wait a number of minutes for a 3- megabyte document to open. Thus, if a PDF document exceeds 3 megabytes, the rules require that the document be broken apart and submitted in separate segments of less than 3 megabytes.14 If the document exceeds 10 megabytes, then it should be submitted on a compact disk rather than through CM/ECF.15 Again, the process of saving in separate segments of less than 3 megabytes or submitting the document on a CD can be time -consuming as well as frustrating to persons still learning the technology.
Finally, systems problems on the attorney’s end, such as internal software errors that prevents users from opening certain PDF documents or ISP server problems that result in an attorney not receiving their e-mails from the system, also serves as a source of frustration for outside users. Furthermore, it is obvious from Help Desk calls that attorneys and their staffs can experience increased pressure and stress when they are attempting to file a pleading under a deadline and their systems are not functioning normally or they do not have a strong grasp of the technology. In short, however, the more conversant the filer is with the technology, the more likely they can avoid this type of stress and frustration.
Like the experience for attorneys, electronic filing for the judges and the clerk’s office has both positive and negative aspects. On the plus side, it affords ease of access to pleadings for the clerk’s office staff and judges as well as for outside users. Unlike a paper case file, multiple persons from both inside and outside the court can simultaneously review case documents on-line. In fact, the ease of accessing electronic pleadings and orders is a benefit frequently cited by the judges in the district. Court staff also now spend far less time searching throughout the courthouse for paper case files. Additionally, both court staff and the public no longer need to wrestle with awkward paper case files, unspindling case documents to obtain access to a pleading located within. Rather, they can simply review electronic docket sheets and point and click on electronic documents that they would like to review. Electronic filing also alleviates the possibility of paper case documents being inadvertently lost, misplaced or misfiled, thus better insuring the integrity of the court’s record.
Ultimately electronic filing, and the resulting electronic record, will relieve the clerk’s office from performing the task of archiving case files to the National Archives and Records Administration in Waltham, Massachusetts. Historically, the archiving process, performed twice annually in this district, has been quite time consuming. In addition, responding to requests for retrieval of archived files is also time-consuming. The advent of an electronic record will largely relieve court staff from having to perform these functions.
From the court’s perspective, there are other significant efficiencies resulting from electronic filing. Because electronic filing is mandatory for attorneys in this district, court staff spends far less time processing paper mail. Similarly, because court orders and notices are automatically sent out to the parties electronically when a court staffer dockets the entry in CM/ECF, staff no longer has to print, stuff and mail multiple service copies of court mail; saving staff time and reducing postage costs for the court. Electronic access to case documents, as well as electronic filing, has also significantly reduced the number of people coming into the clerk’s office seeking the assistance of court staff. Similarly, because electronic documents are available to the public through PACER, court staff have fewer public copy requests to process.
The feedback from the judges in the district concerning CM/ECF has been very positive. Like attorneys, they appreciate the speed and access benefits of CM/ECF. Many of the judges and law clerks are now working electronically and rarely print pleadings. Many utilize the searchable text function when looking for a case citation or record reference in electronic pleadings. Even those who are inclined to work with paper appreciate the ease and convenience of accessing electronic pleadings in cases on the court’s docket through CM/ECF. Many also use a variety of reports, such as the “Pending Motions” report or the “Related Transaction” report, the latter of which identifies all pleadings that are related to a specific motion, to assist them in their work.
Generally speaking, the judges also find it both more expeditious and simpler to rule on routine or uncontested motions in an electronic world. Under the old paper filing system, once a motion was docketed and ripe for review, clerk’s office staff would have to physically transfer the paper case file to chambers and, once ruled upon, chambers would have to physically forward the file back to the clerk’s office to docket and mail the ruling out to the parties. To accommodate electronic documents, the court locally developed a reliable internal electronic system to transmit pleadings from the clerk’s office to chambers and back again for filing. Thus, when a matter is ripe for review, the case manager electronically forwards the documents to a dedicated account in chambers and the judge’s corresponding ruling is sent to a dedicated account in the clerk’s office. Unlike the more cumbersome paper world, the submission of the pleading to the judge and the related ruling can take a matter of minutes without anybody having to leave their desk.
The obvious primary efficiency to be realized by the clerk’s office, at least in theory, is that by electronically filing pleadings the attorneys are effectively performing the docketing function historically performed by court staff. In the paper pleading world, once the clerk’s office received a paper pleading from a party to the case, clerk’s office staff would time- and date-stamp the document, assign a number to the document, make an entry on the docket to record the filing, spindle the document in the paper case file and then reshelve the case file. In contrast, when an attorney electronically files a document through CM/ECF, the document is instaneously added to the court’s docket sheet and a related docket entry is automatically created. The efficiencies to the clerk’s office of attorney electronic filing appear obvious; but it is not such a simple analysis.
Once a document is electronically filed, clerk’s office staff perform a “Quality Control” review of the documents filed as well as the docket entry created. As staff has become more proficient at their quality control function, in most instances they can now complete that review faster than they could docket and file a paper pleading in the old paper world. If an attorney makes a mistake in the filing, however, it can take substantially longer to complete the quality control function. The hope is that as attorneys become more familiar with the rules and technology associated with electronic filing, and as the system becomes even more user-friendly with future releases, they will commit fewer errors and this theoretical efficiency will become a reality.
Despite the various benefits and efficiencies of CM/ECF for the judiciary, like the bar the court is still adjusting to other repercussions of electronic filing.
Electronic filing and maintaining fully electronic case files and dockets required the court to make enormous changes to its internal practices and procedures. Not only did procedures need to be revised consistent with the filing of pleadings in electronic format using new rules of procedure, but electronic filing also necessitated the creation of a reliable internal electronic system to transmit pleading from the clerk’s office to chambers and back again for filing. Staff members, who were well versed in the rules and procedures for paper pleadings, were required to master new court rules and internal procedures as well as various types of new technologies. For a period of over two and a half years the district’s CM/ECF team has provided court staff with ongoing training to prepare for and adjust to electronic filing. As a result of frequent new CM/ECF releases and continued revisions to our CM/ECF rules and procedures, court staff are constantly adjusting and attempting to retain these changes.
Additionally, the planning and implementation process required the court to reallocate staffing resources from daily operations to the CM/ECF project, which resulted in an increased daily workload for numerous clerk’s office staffers. Because of the continued need to support outside users, to maintain and modify the system to meet the district’s needs, and to install and test new releases of the CM/ECF system, the clerk’s office has been unable to restore daily operations to full staffing levels. This staffing shortfall has been exacerbated by reductions in the clerk’s office staffing budget over the past three years.
At the same time that there are fewer persons available to staff operations, CM/ECF has in many ways made the work of intake and case managers more cumbersome and time-consuming than in the paper world. As noted previously, remedying attorney filing errors is typically much more time-consuming than when staff would docket and file pleadings in a paper case. Additionally, the process of scanning, uploading and docketing paper pleadings also places significant demands on staffer’s time. Even in a “mandatory” electronic filing court, such as this district, various documents still are filed in paper. Notable are complaints (which can also be electronically filed),16 sealed documents and, most significantly, pro se filings. In order to create an electronic docket, court staff must scan and docket these submissions in CM/ECF. The process of scanning and uploading these paper documents, particularly pro se submissions that can be many inches thick on poor quality paper, takes an enormous amount of staff time.
As mentioned earlier, court staff is experiencing the same issues related to printing electronic documents as members of the public and bar. This problem becomes particularly acute, however, when attempting to prepare the record either for an interdistrict transfer or an appeal. The current version of CM/ECF does not allow staff to electronically transfer an electronic docket sheet and documents maintained thereon to another court. Thus, if the district needs to transfer the record in a case to another court, clerk’s office staff must separately open and download each PDF document (including exhibits) onto a compact disk or print all the documents contained on the docket sheet. This process, as persons familiar with the CM/ECF system can appreciate, is tedious and time-consuming for court staff. The next version of CM/ECF, however, set for release in the early summer of 2006, will allow district courts to electronically transfer entire docket sheets to another district court when an interdistrict transfer is ordered.
Electronic case filing has truly revolutionized the manner in which court documents are filed, how the clerk of court maintains the public record, and the ability of the public to access court documents. While CM/ECF continues to present many challenges for the bench and bar alike, it also presents tremendous and limitless benefits and opportunities, and it cannot be disputed that it is a superior public access tool. We all need to remember that we are on the forefront of this new technology; undoubtedly future releases will make the system even more user friendly and efficient for both the court and attorneys. The Administrative Office of the United States Courts has formed working groups, comprised of court personnel and information technology programmers from around the country, who are consistently reviewing the system’s shortcomings and developing innovations and remedies in future releases. Each new release addresses literally hundreds of redesign requests.
Additionally, frank and creative feedback from the bar will allow courts across the nation to revise their local rules and procedures governing electronic filing to better serve the bench, bar and public. One of the primary benefits of staffing the ECF Help Desk is that it provides a daily forum to hear attorney and support staff suggestions on system functionality and rules issues. Many of the revisions to the CM/ECF system and rules have resulted from suggestions made during ECF Help Desk calls.
In short, the cooperation, innovation and creativity of all persons impacted by CM/ECF is required to assure that this new technology serves those important constituencies rather than the other way around. If you have any suggestions regarding the CM/ECF system or the rules and procedures governing electronic filing, please feel free to contact me by telephone at 603-225-1477 or by email at email@example.com. For more information about electronic filing, please visit our web site at www.nhd.uscourts.gov.
1. The author would like to recognize the extraordinary contributions of the CM/ECF implementation team in this district: Clerk James R. Starr, Cathy MacEwan, Pat Kelley, and Barbara Bammarito. Particular recognition should be given to Cathy MacEwan, our former ECF Administrator, who was primarily responsible for developing the electronic filing system and procedures for this district. Her ingenuity and dedication was instrumental to the successful implementation of electronic filing in this district.
2. Electronic Case Filing in Federal Courts Reaches Milestone, THE THIRD BRANCH (Vol 37, No. 12, Newsletter of the Federal Courts, Washington, D.C.), Dec. 2005 [hereafter THIRD BRANCH].
3. CMECF: “A Truly Significant Accomplishment,” FEDERAL COURT MANAGEMENT REPORT (Administrative Office of the U.S. Courts, Washington, D.C.), Dec. 2005 [hereafter FCMR].
5. THIRD BRANCH. While 85 districts and 91 bankruptcy court are now using the CM/ECF case management system, each court has made a decision locally whether to utlilize the electronic filing component to that system and, if so, whether electronic filing should be mandatory or optional in their court.
7. Note that even in an electronic case, certain documents nonetheless should be filed and served in paper format, such a sealed documents, objections to the assignment of the magistrate judge, and other documents referenced in Section III of the district’s Administrative Procedures for Electronic Filing (AP). Additionally, note that while non-incarcerated pro se litigants may move for permission to file electronically, AP 2.1(d), most pro se litigants will continue to file and serve documents in paper.
8. Persons can register on line for a live ECF training session or find out details about our ECF self-training alternative (VHS/DVD) by going to the court’s website at www.nhd.uscourts.gov, clicking on the “Electronic Case Files” link on the left navigation bar, and then clicking on the “Training” link .
9. At some point in the future, due to limited server space, the district will have to address how to archive electronic case files.
10. While it is somewhat counterintuitive, it has been made unmistakably clear in the recent amendments to Fed. R. Civ. P. 6(e) that persons receiving pleadings instantaneously through CM/ECF obtain the benefit of the 3 calendar-day mailing rule for all filing deadlines computed from the date of “service.”
11. LR 83.6(a)(4).
12. Some attorneys suggest that such virtual participation in a case has an at least equally negative impact on the collegiality of relationships between counsel as well as between the bench and bar.
13. The specific rule governing the proper method of submitting exhibits is set forth in AP 2.5.
14. AP 2.3(b).
16. AP 2.4(a). Note that if a complaint is filed in paper by an attorney, the complaint and attachments must be downloaded onto a 3.5 floppy or compact disk as separate documents in PDF format and received within 48 hours. Id.
Attorney Daniel J. Lynch is Chief Deputy Clerk, United States District Court for the District of New Hampshire. Admitted to the New Hampshire Bar in 1990, he practiced law at Sheehan Phinney Bass + Green, PA and later served as Deputy Clerk for the Strafford and Merrimack Superior Courts. He joined the federal court in 2002.