EFiling: The Future Is Now

Filing paper documents at courthouses and administrative agencies is the law practice equivalent of an endangered species, giving way to a new breed of activity - electronic filing. Efiling is the uploading to a website of information in electronic form. The efiling process has begun to have a more pervasive effect on the legal system than did the adoption of codes of civil procedure or administrative procedure acts. The federal courts' Electronic Case Filing (ECF) and online Case Management (CM) programs have inaugurated some fundamental changes for courts, lawyers, clients, citizens and government.

The trend line for adoption of efiling was pretty flat from 1991 to 1997, with few actual pilot projects undertaken. Since about 1999, however, there has been a steep incline. The authors project that, by the end of this decade, some form of electronic filing will be pervasive in federal courts, state courts and governmental agencies.

Currently, pursuant to ECF/CM, the federal courts fall into three categories:

  • Virtually every court has at least an electronic docket (edocket) system. Therefore, anyone - with a browser and an account with the Federal Judiciary's Public Access to Court Electronic Records (PACER) service - can find and view any civil case's docket sheet over the web for only $.07/page.

  • A number of other courts have edockets that provide links to PDF versions of all court-generated pleadings (especially orders), again for only $.07/page.

  • Still other courts have PACER-available edockets that additionally provide links to all non-sealed pleadings efiled by the parties.

 

All federal courts are scheduled to be efiling courts by sometime in 2005. The federal circuit courts will commence efiling implementation in late 2004. Based on the latest federal judiciary data, currently:

  • ECF systems are in use in 25 of the 97 district courts, in 60 of the 95 bankruptcy courts, and in the Court of International Trade and Court of Claims.

  • An additional 32 district courts and 31 bankruptcy courts are in the process of implementing ECF.

 

Thus, at the end of the current implementation phase, EF will encompass a total of 150 federal courts - two specialized, 57 districts and 91 bankruptcy.

By way of example, on April 2, 2001 the Northern District of California (N.D. Cal.) launched an ECF pilot project, which expanded into a full-fledged program on January 1, 2003. As summarized by the N.D. Cal.: "Now, almost all NEW civil cases are included in the scope of the e-filing program. Criminal cases, sealed cases and sealed documents are still excluded. . . . Beginning January 1, 2003, all judges in the northern district began participating in e-filing." Thus, virtually every N.D. Cal. case "opened" on or after January 1, 2003, now becomes an efiling case. In other words, ECF now encompasses any non-sealed civil case reaching the N.D. Cal. by: initial filing; inter-district transfer; or removal from state court.

On the state or local court level, at least 20 states' court systems use some form of efiling. The California Judicial Council took a big step forward on January 1, 2003, the effective date of Cal. Rules of Court 2050-2060 (authorizing and explicating efiling).

Yet, several barriers seem to be holding back California state court efiling. Those obstacles include budgetary constraints and the resistance to a single efiling system endemic to a set of courts historically administered by 58 separate decentralized hierarchies. Nonetheless, eight of California's 58 Superior Courts - including two in the Bay Area - have embarked on efiling pilot projects. For example, the San Francisco County Superior Court is accepting e-filings for some complex litigation cases.

Efiling is not simply a matter of "pushing a button." Most filers have found it necessary to develop protocols and training programs to execute efiling's multiple steps. On the other hand, the current ECF upload method is likely more similar to old-fashioned manual filings than to the anticipated future higher-tech efiling processes. One of the biggest current impediments to efiling is the absence of a flexible uniform data transfer protocol for sending or receiving information in a readily useable electronic form. Once legal XML or some other standard markup language is developed and adopted, the federal courts will presumably update their ECF systems to mandate use of that language.

Thus far, efiling in the federal courts has made extensive use of imaging to convert paper-based information into electronic images on a document-by-document basis. ECF/CM requires use of Adobe's Acrobat Portable Document Format (pdf) imaging for every to-be-efiled document. Most significantly, Adobe's higher-level version of Acrobat has a "PDF Writer" feature, which converts a word processing file into a unique type of PDF image file. Although the created file - sometimes called "PDF Normal" - cannot be modified, it retains two key attributes of a word processing file: full-text searching; and blocks of text can later be copied by a party or the court for pasting into a new word processing file.

When a document is efiled, typically service occurs automatically moments later. In a Notice of Electronic Filing, the court's ECF/CM system e-mails all counsel of record a description of, and link to, the new pleading. A party need not manually serve the other parties. Moreover, the N.D. Cal. has increased the pressure on all attorneys to become registered efilers by a new practice: a court order is no longer manually served, but is instead posted on the edocket and linked to in a notification e-mail.

As described in detail in the longer piece on which this article is based, many ramifications inhere in the brave new world of electronic filings and electronic retrievals, including:

  • Courts - by making their electronic records available remotely - have effectively become publishers (rather than mere depositories). Access to courts and the information in court files is thus becoming much less burdensome, with potentially far-reaching privacy implications.

  • Law office organization and record keeping have traditionally mostly been dictated by paper-based systems. As efiling's impacts dovetail with the move to electronic communication (using voicemail, email, instant messaging and their successors) law offices are becoming more and more paperless.

  • Governmental agencies are using the Internet to increase direct interaction with citizens and thereby greatly reduce or eliminate citizens' need for attorney and/or accountant intermediaries.

  • Clients not only need to continue to master the latest and greatest methods of electronic record-keeping, but are also beginning to experience greater transparency of business operations - rendering a lot more information available very inexpensively to regulators, competitors and adversaries.

  • Citizens' access to the judiciary and governmental agencies is generally being rendered much easier and much less expensive.

 

If enthusiastic adoption of electronic information technology continues, radical changes are destined to occur.

Article based on William A. Fenwick & Robert D. Brownstone, "EFiling - What is it? What are its Implications?," 19 Santa Clara Computer & High Tech. L.J. 181 (2002), update at Fenwick publications.