Entering the 21st Century Some Views on Electronic Case Filing from the U.S. Trustees Perspective
Not too long ago, law offices had electric typewriters and used carbon paper for copies. Mag card typewriters were considered high-tech, and cell phones, fax machines and personal computers existed only in dreams. Now, in the 21st century, many of us find ourselves anxious about how swiftly technology changes our lives. When the clerk of court sends out a notice about electronic case filing (ECF), we wonder how we will adjust. Instead of entertaining a vision of saving space and time by eliminating or reducing paper files, most of us try to see if the new system can still deliver reams of paper. We think we must hold and see real paper to do our jobs.
Case Management/Electronic Case Filing (CM/ECF) is being developed by the Administrative Office of the U.S. Courts (AOUSC) both as the new case docketing system and as a method for electronic filing of documents. As U.S. Trustees, we are not always on the forefront of technology, but we have been involved in several ECF pilots.2 This article is not intended to be a primer from experts on ECF, but a vehicle to start bankruptcy professionals thinking about the future with ECF. The transition to ECF requires some adjustments, and many advantages of ECF are not readily apparent. However, the temptation to grumble and grouse about change should not be allowed to sabotage the vision of savings that can be realized by ECF. Electronic case filing must be welcomed because it is inevitable, but it should be welcomed because in the long run it will improve case administration and make life easier for bankruptcy system users.
The stated CM/ECF's goals include "...making detailed case information available to attorneys and the public at low cost over the Internet, thereby eliminating costs and delays associated with paper files and enabling judges to manage caseloads and to decide controversies in a more efficient manner."3
Sometimes this is expressed as a paperless office, but making a "paperless" clerk's office does not necessarily make the offices of the other users "paperless." Nonetheless, less paper has to be an ECF goal if benefits are to be realized.
Finally, whether an express goal or not, CM/ECF shifts some activities, such as docketing, from the clerk to the document filer. This saves the clerk's valuable resources for other tasks, but can also be an advantage to the filer.
ECF is not always easy, but when implemented it provides many advantages over the conventional paper method of filing. Among its advantages:
- Pleadings can be filed electronically 24 hours per day, seven days per week.
- Documents can be retrieved from any location at any time.
- Delays in filing and in receiving filed information are eliminated.
- Case progress can be more easily monitored because the dockets and the pleadings are available electronically. The summaries of ECF activities in a case can help in monitoring what is happening in the case.
- The CM/ECF open-calendaring system allows attorneys filing motions to select dates and times for the hearings.4
- Less time is wasted in storing and retrieving documents when they are in an electronic format.
- Some trustees say it is easier to review petitions and schedules on a computer screen than by flipping through paper copies. (Other trustees may disagree and feel more comfortable with paper.)
- Electronic files will save file space and should be less labor intensive to maintain. The U.S. Trustee offices have realized that fewer paper files need to be maintained, saving both space and labor.
- Transmitting documents electronically saves postage, courier fees and travel expenses associated with delivering paper documents.
- Proofs of claim are more easily and readily made available for review by the trustees, the U.S. Trustee and the bar.
Some Problems with ECF
The transition and adjustment to ECF has not been easy. As with any new venture, problems are more common at the outset, but as users make the proper adjustments, the problems gradually lessen and the advantages become more apparent. Some problems that must be faced include:
- Offices have become acclimated to using paper and to receiving conventional mail.
- If electronically filed documents are e-mailed and then printed, and also faxed and mailed, more paper documents are created than with conventional filing.
- When a court's web site is down, the files are unavailable. This seems to be more of an issue during ECF's early days within a district. Downtime decreases as the system develops, but it is never completely eliminated.
- Some handwritten documents scanned into the computer are difficult to read. These scanned documents also take more time to download from the court's web site.
- Those used to dealing with paper find reviewing a document on a screen less efficient than reviewing a paper copy. These users often print a copy, which eliminates many of ECF's advantages.
- Undisclosed petition preparers are often identified by certain characteristics of the documents they prepare and these identifying characteristics are less apparent on scanned documents.
- ECF causes users to receive an enormous amount of e-mail, and systems must be developed for processing these e-mails through the office. Some U.S. Trustee offices have the messages routed to a single clerk, who functions as an electronic mail clerk. This also avoids the problem of pleadings not being reviewed when the attorney is out of the office.
- In some instances, the CM/ECF system does not contain all of the modifications developed in previous systems. For example, previous systems were able to automatically implement the U.S. Trustee's chapter 7 case assignments with flexibility. Unless modified, CM/ECF treats trustee case assignments with more of a one-size-fits-all approach.
- Using electronic signatures makes some people nervous and can lead to abuse. Most districts that try ECF require the filing attorney to retain the original signatures in the file for a designated period.5 Some less ethical attorneys may be tempted to file a petition before it is signed by the debtor. One can only assume that the court would treat this as a most serious breach.
- Computers are less forgiving than humans and do not automatically catch mistakes, and the consequences of mistakes seem to multiply when dealing with electronic filings. For example, the U.S. Trustee spends considerable time working with attorneys who have misfiled petitions and schedules. There have been several instances of the wrong schedules being attached to the petition, where Mr. Jones's matrix and schedules were attached to Mr. Smith's petition. If this kind of error is not caught and corrected immediately, the wrong creditors receive notice of the bankruptcy and the important meeting dates, hearing dates and deadlines in the case.
- When filing claims electronically, creditors are less likely to attach supporting documentation to the claim, making review by the trustee and others more difficult.
Preparations for CM/ECF's Coming
The bankruptcy world is rapidly changing, and, just as some attorneys resisted providing the mailing matrix on disc, some would prefer to continue the conventional paper filing. Using ECF may be optional at first as it was in the pilot districts, but it will only be optional during the phase-in period. Sooner or later, all filings in all districts will be made electronically, and attorneys would be wise to prepare.
Training is the most important aspect in preparing attorneys for CM/ECF. Both attorneys and staff should take advantage of the training offered by the clerk of court. Of particular importance is the proper use of the "docket event dictionary" that lists various types of pleadings. Anyone filing a pleading must select the appropriate "event" from the dictionary and enter that event in the system when filing the pleading. Essentially, CM/ECF shifts the burden of creating the docket entry from the clerk to the filer. When a pleading is properly labeled, a person receiving electronic notice of the filing can often tell just from the subject line of the e-mail whether it will be necessary to open the e-mail for further review of the actual pleading. Unfortunately, some users routinely file their pleadings under generic labels such as "notice of filing" or "motion to authorize" even when the event dictionary lists the specific document being filed. Use of an uninformative generic label requires further, and often unnecessary, processing of the e-mail notification.
Practicing in the CM/ECF environment may also require expending funds for new equipment. Most important, the U.S. Trustee has found that CM/ECF works better when high-speed data lines are used. Filing, reviewing or retrieving documents using a dial-up service with a standard modem is simply too slow, and any efficiencies derived from CM/ECF can quickly be dissipated while waiting for one large document to download using dial-up service. In addition, users are required to have software to convert word processing files to portable document format (.pdf) files, as well as a scanner and scanning software to create a .pdf file from text in a non-electronic form. Computers with increased disk storage may be required, as well as high-speed printers. Further, many users find that larger flat-screen monitors make reading files from the computer easier and faster, because they show more text and eliminate the need to scroll the document every few lines. Finally, antivirus software is required.
In addition to obtaining the necessary training and computer hardware and software, bankruptcy professionals should take the time to consider how to adjust systems and processes to accommodate CM/ECF. What paper needs to be printed and what can be eliminated? How will the e-mail be delivered and processed within the office? How will attorneys ensure that the signature is on the original document before it is filed electronically? Systems that worked for paper documents may not work for electronic documents.
In many of the U.S. Trustee offices served by ECF, paper files that were once relied upon have been replaced by electronic files. Some trustees report that it is easier to conduct §341 meetings with ECF, downloading information from the schedules to easily portable laptop computers instead of carrying boxes of petitions and schedules to the meeting rooms. Others continue to rely only on paper copies of all documents, and their printers spend hours printing schedules.
If an attorney's goal is to operate in the same manner as before electronic filing, it will seem as if the attorney is doing the work of the clerk's office, and the burdens of ECF outweigh the benefits. Anyone expecting to be instantly "paperless" with the coming of ECF is well advised not to sell that printer and not to eliminate the files. If, however, an attorney looks to the future, the benefits will come. The transition process requires training, proper equipment and the willingness to develop the proper systems within each office. Moreover, coordination and cooperation among the various offices using ECF is necessary to make it work properly. The transition is not painless and not always smooth, but in the end electronic filing will make for a better and more efficient bankruptcy system.
1 The views expressed in this article are those of the authors and are not intended to represent the views of the Department of Justice, the Executive Office for U.S. Trustees, or any other U.S. Trustees. Return to article
2 The pilot districts in bankruptcy for CM/ECF were the Southern District of New York, District of Delaware, Eastern District of Virginia, Northern District of Georgia and Southern District of California. Return to article
5 The administrative procedures adopted by the U.S. Bankruptcy Court for the Eastern District of Virginia in Standing Order No. 01-6, dated Nov. 1, 2001, require the filing attorney to retain original signatures for no less than three years following the closing of the case and, upon request of the court, to provide the original documents for review. Return to article