ECF Filing: Some Things You May Not Have Considered
by Mark T. Domeyer Esquire; Miles, Bauer, Bergstrom & Winters LLP; Costa Mesa, Calif.
ECF Is Here to Stay
Case Management/Electronic Case Filing (CM/ECF), like many innovations, has its genesis out of necessity. The Northern District of Ohio faced an influx of many thousands of maritime cases and the clerk’s office had trouble coping in an era of budget tightening. Sound familiar? From these humble beginnings, the pilot project has spread to virtually every state and judicial district. CM/ECF systems are now in use in 68 district courts, 81 bankruptcy courts, the Court of International Trade and Court of Claims.1 The national roll out of the CM/ECF system for bankruptcy courts started in early 2001 and is scheduled to take 2–3 years with all bankruptcy courts to be online by 2005.2 In many districts electronic filing is mandatory, and there can be little doubt that CM/ECF filing will soon be the norm, not the exception.
CM/ECF has many advantages for the filer: The courthouse is always open, you can prepare and file your papers at any time of the day or night, no messenger service is needed and you can file from remote locations or out of state. The CM/ECF system also provides you with a written record of the filing, much the same as the practice of receiving a confirmed copy. Service of documents can also be accomplished electronically. The CM/ECF system allows multiple users the ability to review and download dockets and court documents simultaneously from remote locations.
Of course, the CM/ECF filing process is largely clerical so the task is routinely delegated, but the professional must be sure that the delegation is with appropriate training and safeguards. The simplicity of the CM/ECF system, one of its primary advantages, can actually lull the participant into complacency and lead to human error if one does not remain vigilant to some easily preventable errors.
Pitfalls You May Not Have Considered
As with any innovation—much like legislation or medication—there may be unintended consequences or side effects from the innovations. In the old days we called this “getting the bugs out.” But what are the bugs? I have experienced a couple that perhaps you may not have considered.
When you file a document using CM/ECF one must be careful to use the correct case number and to link or attach the correct document when filing. It sounds so simple—and it is. However, failure to follow these simple steps can have important consequences. If the CM/ECF user fails to detect a typographical error in the case number, the document will be filed in the wrong file. Similarly, if the CM/ECF user accidentally attaches the wrong document when using the browse feature either due to naming conventions or simple inadvertence, the wrong document will be filed. The human intervention must happen with your CM/ECF process, because there is no clerk to serve as the gatekeeper when you present your document for filing. When these types of mistakes are made, productivity suffers because you must withdraw the erroneously filed document and file in the correct case. All parties in both cases must then be served.
Surprise, You Switched Ships by Mistake!
At the stage in the CM/ECF process when the CM/ECF user identifies the party filing the document, the user should also be careful. Imagine my surprise when I received a letter from an auto lender congratulating me on my recent receipt of a discharge and offering credit on the purchase of a new car! In my present practice I represent creditors exclusively, but apparently on one or more files the link to the document mistakenly identified me as the debtor rather than creditor’s counsel. Confusion can similarly arise where professionals are identified as representing another interested party or your adversary. I also had a case where the client questioned a conflict after review of the docket erroneously indicated that I represented the debtor, when in fact I had previously filed papers on behalf of the same client.
You can check for these kinds of errors periodically by running a search by professional’s name and then correcting any errors that are discovered. These linking problems are yet another reason to periodically check your credit report and correct any errors. The day you are submitting your loan application on your dream house is no time to discover erroneous reporting of multiple bankruptcy filings.
Due Process and E-mail Spam
One of the advantages to CM/ECF filing is immediate notification of any responses to your documents. But this advantage can quickly become the bane of your existence if you have a volume practice. You will receive notification of every document filed in a case where you have entered an appearance, and someone needs to separate the wheat in the form of relevant documents from the chaff of hundreds of documents that are not relevant to your matter. This task of reviewing documents filed in the case is not new to CM/ECF, but technology can inadvertently add to the burden if not used wisely.
One of the advantages of a blackberry is the receipt of e-mails while out of the office, whether in court, in client visits or for any reason. However, if the blackberry service agreement of the CM/ECF user does not provide remote access to document attachments and the user’s case management system, I suggest that you do not redirect CM/ECF e-mails or you will spend all of your time away from the office deleting e-mails. A little forethought and organization can eliminate this issue. Some CM/ECF users have confided that they elect not to receive e-mail notification of filings, or to receive them in batches, but I believe those practices eliminate one of the primary benefits of CM/ECF systems. I suggest setting aside a certain time frame each day for review of CM/ECF e-mails and analysis using your case management system or case files if your office is not truly paperless. The process is more efficient than review upon receipt.