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Is Electronic Filing in Your Future

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Editor's Note: This article begins a new column to the ABI Journal, which will provide information by and regarding court clerks.

The federal courts began an initiative in 1996 to replace outdated case management systems used throughout the federal judiciary. The new initiative, Case Management/Electronic Case Files (CM/ECF), was developed to replace the legacy systems with an electronic case-filing capability. In addition to case management and electronic case filing capabilities, the system allows for:

  • electronic submission of case file documents (via the Internet for attorneys);
  • management of electronic documents (including storage and security);
  • automatic generation of docket entries from electronic filing;
  • electronic noticing; and
  • electronic retrieval of case file documents (including public and remote access).

With the assistance of the U.S. Bankruptcy Court for the Southern District of New York, the Administrative Office of the U.S. Courts (AOUSC) developed a prototype application to be used in the bankruptcy courts. In September 1999, five bankruptcy courts (S.D.N.Y., D. Ariz., E.D. Cal., N.D. Ga. and E.D. Va.) began using the system. Today, 18 bankruptcy courts operate on the case management system, 12 of which accept electronic filings from attorneys through the Internet. (For specific court locations, go to www.uscourts.gov and click the link to Electronic Access to Courts.)

CM/ECF will allow attorneys to file and view documents from their office, home or anywhere they have access to the Internet, 24 hours a day. Documents are automatically docketed as part of the filing process and are immediately available electronically. Its benefits include:

  • 24-hour access to filed documents over the Internet;
  • automatic e-mail notice of case activity;
  • the ability to download and print documents directly from the court system;
  • concurrent access to case files by multiple parties;
  • secure storage of documents (no more misplaced files); and
  • elimination of courier services.

The electronic case file system accepts documents in a portable document format (PDF). PDF retains the way a document looks, so the pages, fonts and other formatting are preserved. Filing a document with the court's CM/ECF system is very easy:

  • Create the document using word processing software;
  • Save the document in PDF format;
  • Log onto the court's CM/ECF system, using a court-issued login and password;
  • Follow the set of simple prompts to provide information about the case, party and document to be filed;
  • Attach the PDF document and submit it to the court for filing; and
  • Save or print the CM/ECF electronic receipt e-mailed from the court confirming that the document was filed.

There are no added fees for filing documents over the Internet using this system; however, filing fees established in Title 28 USC 1930 and the Judicial Conference Schedule of Fees still apply. Access to the court data is available through the Public Access to Court Electronic Records (PACER) program. Attorneys and litigants receive one free copy of documents filed electronically in their cases; additional copies are available for viewing or downloading at seven cents per page.

CM/ECF Offers Security

Courts issue logins and passwords to trained and certified attorneys. This login and password constitutes the attorney signature under FRBP 9011. Attorneys should feel confident in using the system, which has many security features and has passed an evaluation by the National Security Agency. All CM/ECF courts provide in-house training for attorneys and their staff; some even make "house calls" by going to the law office and training the staff.

As part of the many security features, off-site replication servers are utilized to instantaneously store filed case data. To appreciate how important the replication is, the Manhattan Division of the Southern District of New York bankruptcy court is approximately six blocks from the World Trade Center. On the morning of Sept. 11, many of the staff in the bankruptcy court observed the horrific scene that the country witnessed on television. Once the WTC buildings collapsed, the debris forced all employees into the building's basement. Later in the day, employees vacated the building, and all power to servers was terminated. The next day, Lower Manhattan was controlled by the National Guard and other law enforcement agencies, and access to the court building was denied. Through the efforts of the Clerk of Court Kathleen Farrell-Willoughby and her staff, along with assistance from the AOUSC, the replication server was brought online two days later, and the CM/ECF application was operational over the Internet to attorneys. No data was lost, and it was not until Oct. 4 that the court was able to re-establish the server in lower Manhattan.

In addition to keeping data intact, the court was able to assist law firms and governmental agencies, whose infrastructure was directly affected by the tragic events. Lists of cases in which the law firms were involved were provided, along with up-to-date case information.

Due to this tragic event, virtually any attorney who practices in the Southern District of New York would confirm the benefits of CM/ECF. But it wasn't only Lower Manhattan that was affected by this event; courts across the country discontinued using and removed drop boxes. Extra precautions are now taken to process mail. The AOUSC has converted to communicating with the courts strictly via electronic means. Mail postmarked October 2001 and destined for the AOUSC has yet to be delivered.

The threat is still out there. But whether it is contaminated mail, chemical or biological elements, or bombs exploding in or around courthouses, CM/ECF allows for continued justice to be served for all parties.

Since the Western District of Texas is one of the fully operational courts, I have received first-hand information from debtor and creditor attorneys, panel trustees and other parties regarding the ease in using the system. Further, the information is available immediately after filing, no longer requiring a 24-hour wait to upload from one database to another.

Software vendors, in conjunction with the courts, have developed batch petition uploading features. One click of the mouse, and multiple cases are uploaded and filed in the system. No more waiting in line at the clerk's office or paying a courier service to deliver documents. No longer the fear of the clerk's office closing and you have a deadline to meet. Documents are filed 24/7 and posted within seconds.

San Antonio Attorney and Panel Trustee Randolph N. Osherow had this to say about the new application:

As you know, my office has been using the CM/ECF system to electronically file all court documents for more than three months, filing a minimum of three or four documents per day. I have reduced my costs in several ways: First, my copying costs have been reduced by up to 50 percent. This may seem insignificant; however, the reduction in time spent has freed up an employee for other tasks. We have also reduced our courier costs because it is no longer necessary for a daily "run" to the courthouse. We now have access to the courthouse 24 hours a day, seven days a week, thus making filing deadlines a little more forgiving. I have reduced my requests for copies of documents through a third-party copying company by approximately 75 percent. Also, the time I spend retrieving documents from the clerk's office has been greatly reduced. I would conservatively estimate my firm's savings in employee time, attorney time and other generally unbillable and non-reimbursable costs to be approximately $10,000 per year. Some challenges still remain. The major opportunity for improvement continues to be the order submission process. It usually takes a week to 10 days to obtain a signed order from the judge, even though the notice time has expired. The software itself is somewhat cumbersome and could use some streamlining; however, my overall opinion of the system is good, and anyone practicing bankruptcy should avail themselves of the system if only to give them 24-hour access to the clerk's office.

Several modifications to the software continue to be developed to enhance the application for all parties. For example, there are ongoing efforts to develop software to interface between the CM/ECF application and chapter 13 systems and the batch uploading of proofs of claim. We are also building software to streamline the order submission process, which will enable us to eliminate the problem Mr. Osherow refers to in his comments.

So I ask the question again, "Is electronic filing in your future?" The answer should be "yes," as soon as possible. Using the system is easy; it's convenient, whether you work in the office or at home; it will save you money; it saves time; and it is secure.

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Friday, March 1, 2002

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