Case Management/Electronic Case Filing (CM/ECF) implementation in the bankruptcy courts has been underway since early 2001. Currently, approximately 61 courts are operational, with more scheduled to become activated each month. With the advent of CM/ECF come some significant advantages for parties practicing in federal courts. ECF allows courts to maintain case documents in electronic form. Thus, they are more accessible to the parties because they can be downloaded directly from the docket, saving the time and expense associated with ordering documents from the court or through costly document retrieval services. ECF also gives each court the option of permitting documents such as pleadings, motions and petitions to be filed over the Internet, which is especially helpful to attorney-procrastinators, who can send pleadings as late as 11:59 p.m. on the deadline and still have them filed on time. E-filing also benefits court personnel by relieving them of the burden of entering docket information for each paper filed in a case. These are just some of the real benefits of electronic filing.

ECF is mandatory in some courts and optional in others. But it is clear that ECF will become the norm and mandatory in most jurisdictions, so becoming familiar with the process as soon as possible is useful as more and more courts go online.

One area that can pose challenges for practitioners is "e-mail noticing," which goes hand-in-hand with e-filing. Being aware of and prepared for what is to come can help you make the most of the benefits of ECF or at least cope with the change.

Amendments to the federal Civil, Criminal and Bankruptcy Rules authorize service of documents by electronic means if parties consent in writing.¹ These provisions recognize the proliferation of electronic media such as e-mail and facsimile transmissions and permit service using these means if both sides agree. ECF courts have incorporated these methods of service into their rules, thus permitting service through e-mail.² Since the recipient must consent to service by electronic transmission, some courts' ECF applications contain an express waiver of the registrant's right to service of documents by regular mail. In other courts, e-mail service/noticing is optional for now. E-mail notices take the place of traditional mail containing case information that would otherwise be sent out from the court.³

A major drawback of e-mail noticing is that users receive many more notices from the courts and other parties than they would have received through the traditional mailing process. Now, instead of getting notices that specifically apply to a party's interest in a case, such as a dismissal, discharge, conversion, asset notice, etc., users receive notice of every paper electronically filed in a case. For any party interested in only limited events in a bankruptcy case, the amount of non-relevant mail can quickly pile up. Nevertheless, it must be reviewed, and often the subject line of the e-mail is not sufficient to allow a determination to be made as to the importance of the notice. In that case, the e-mail must be opened and read.

Managing E-notices

To deal with the sheer volume of e-mail that practitioners in ECF courts are bound to receive, e-mail recipients can choose to receive a separate e-mail for each notice, or one e-mail each day containing a list of all the notices for the day. This "summary e-mail" format is helpful in limiting the amount of e-mails that can overload an inbox—i.e., only one e-mail per court is delivered each day. However, managing the notices may actually be easier if they are received individually. This is because the recipient can arrange the individual e-mails based on subject line, which is not possible when the "subject" of the notice is contained in the body of the e-mail, such as in the case when the summary format is the selected delivery method.

However, managing individual e-mails is not as simple as applying a "sort" function to the list of e-mails. Unfortunately, the "subject line" of most court notices begins with the bankruptcy number, not the name of the notice. Therefore, a sort function will not produce the desired results and will merely list the e-mails numerically. Debtor attorneys may find this useful if they keep their case files by bankruptcy number. For others, however, listing by bankruptcy number may not be helpful, and users must develop their own electronic sorting method using their mail program and key words in the title of the document. Thus, "dismissal," "discharge," "asset," "conversion" and "objection to claim" can be designated as key words when developing sorting rules. Then, once sorted, staff can review the notices based on priorities set by the recipient.

The order in which rules are applied is crucial. For example, if different types of "objection" mail are directed to different paralegals, a rule can separate "objection," "objection to confirmation" and "objection to claim" into individual groups for review. But the sort must go from more specific to more general—i.e., objection to claim and objection to confirmation rules must be applied before the more general "objection" rule. If "objection" is first, the sort will pick up all of the objections to confirmation and all the objections to claim, along with miscellaneous objection notices, in the initial sort. As this example demonstrates, experimentation will be necessary to refine the sort, but once complete, managing the amount of e-mails will be much simpler.

It's in the Mail...

A second and similar issue arises with e-mail noticing. Users will receive an e-mail (or summary notice once a day) for each document filed in the case from the time the recipient files its first paper in the case until the case is closed. Determining the relevancy of incoming e-notices can be difficult. Clearly, some notices will be relevant. If a "discharge" or "dismissal" notice is sent to a creditor, it is because the creditor made an appearance in the case, such as by filing a proof of claim or request for notice. The creditor will likely want to review every e-mail it received that contained a "discharge" or "dismissal" notice.

This same creditor, however, may not be interested in all documents titled "objection to claim." For example, the same objection to claim can be listed in the subject of an e-mail as "objection," "objection to claim," "objection to claim 4" or "objection to claim of creditor X." In all cases, the safest way to review these documents is to actually go into the document to see which claim is affected. Even under the last example, while the subject of the e-mail notice may say "objection to claim of creditor X" when the actual document is reviewed, it can contain four objections to claim against four different creditors, creditor X merely being the first creditor listed in the objection.

This problem can sometimes be alleviated or at least minimized by the party submitting the document. When filing documents electronically, many court systems have a "drop-down menu" of pleadings from which to choose. The system may then allow the filer the ability to add key words to the generic pleading chosen from the menu. The filer can make the pleading, and consequently the docket entry and e-mail notice, more descriptive by elaborating on the title of the pleading or adding names of affected parties. Thus, an "objection to claim" can be enhanced by the filer to "objection to claim 4 of creditor X."

Then, of course, there will always be "miscellaneous" e-mails that are not easily subject to categorization and that can only be assessed by opening and reviewing the actual document. For example, an e-mail entitled "order," "motion" or "reply" does not provide sufficient information and must be examined in greater detail. When the e-mail is opened, it may contain more information. Or the subject will still not be clear, and the recipient must click on the link to view the actual document to determine if it is relevant. Many of these e-mails would not be sent to an unaffected recipient under traditional rules for service by mail.

Consider also a small, unsecured creditor with a claim in a large chapter 11 case where electronic filing is mandatory. Once the proof of claim is filed, the creditor will receive e-mails on every subsequent filing in the case, which can be overwhelming in a large bankruptcy. The creditor will continue to receive all notices until the case is over. Establishing a regular practice of examining incoming mail and immediately archiving notices that are not relevant is currently the only way to prevent becoming buried under a deluge of mail.

Another idea for managing the volume of e-mails coming your way is to establish a dedicated mailbox just for receiving electronic notices. Then you can decide when to check the mail, and constant disturbances from incoming mail will be minimized. However you decide to prioritize and review the e-mail onslaught, remember that you are responsible for what is sent to you. Experiment early with ways to make the volume more manageable, but be prepared: E-mail noticing is coming, and the best defense may be a good offense.

Footnotes

¹ Service of process is not currently covered by rules on electronic filing. Return to article

² Interestingly, parties are still permitted to add an additional three days, formerly to compensate for mail delay, to respond to documents served electronically. Federal Rule 6(e) and Bankruptcy Rule 9006 (f). It is hoped that maintaining the additional three-day response time will encourage consent to electronic service. Return to article

³ Whether good service by a party is effectuated by filing the document electronically is not the subject of this article. Return to article