Utah Bar Journal

Legal practitioners and their assistants are becoming more familiar and comfortable with the Federal District Court’s Case Management / Electronic Case Filing (“CM/ECF”) system. For example, in the District of Utah electronic filings increased from just nine filings in July 2005 to 3,020 in September 2006.5

Despite the increase in the total number of electronic filings, the percentage of electronic filings compared to total filings remains relatively low at approximately 33 percent.6 Although electronic filing is now “mandatory” in the District of Utah, clearly some are still resisting this change perhaps because they do not understand the benefits of electronic filing and the potential risks of not using CM/ECF correctly.

This article offers several suggestions on how to become more familiar with CM/ECF, how electronic filing can actually benefit your practice, and how to avoid common mistakes associated with electronic filing.

Use it!
Although the District of Utah CM/ECF Administrative Procedures Manual states that “electronic filing is mandatory,” and “[r]egistration is required for each individual attorney,” the manual concedes that “[p]aper documents presented to the Court for conventional filing will be scanned and docketed. The scanned PDF image will become the official court record . . . .” 7

In other words, as the rules are currently written, an attorney can get around the electronic filing requirement. The Clerk’s office still accepts conventionally filed documents, even for documents that are not considered exceptions to the electronic filing “requirement.”8

Nonetheless, there are numerous benefits to electronic filing. These include (but are not limited to): (1) ready access to case files; (2) the ability to file court documents from any place and at any time (although, speaking from personal experience, the “any time” possibility is both a blessing and a curse); (3) the elimination of associated copy and postage expenses; (4) the ability to pay filing fees and pro hac vice fees online; (4) fewer trips to the courthouse by attorneys and staff; (5) less time invested in filing electronically as compared to conventional filing; (6) giving judges and law clerks navigation tools within court-filed documents through hyperlinks of cited authorities; (7) immediate e-mail notifications of court filings;9 and (8) automatic and instantaneous electronic service of pleadings on all parties to an action (as opposed to conventional paper/mail/fax service). In the author’s opinion, it is difficult to imagine any advantage to conventional filing now that electronic filing is possible.

Because of these advantages, the Court continues to encourage attorney registration for electronic filing. In June 2006, the Court distributed the following message to attorneys practicing within the District of Utah that were not yet registered e-filers:

The overwhelming majority of the court’s bar have complied with the requirement that active counsel register as electronic filers. All counsel on a case are required to be e-filers, even if only one lead attorney files papers. The deadlines for mandatory e-filing (November 1, 2005, for criminal cases and May 1, 2006, for civil cases) are long past. Generous advance notice was provided, and the court provides several avenues for training at no cost, some including CLE credit. The few counsel who are not e-filers impose a burden of paper service on the court and on counsel who comply with the court mandatory e-filing policy.10

To enforce this policy, Magistrate Judge David Nuffer has even entered an order in at least one case (after the May 1, 2006 registration deadline) mandating that “within fifteen days all counsel of record in this case who are not registered e-filers in the court’s electronic filing system shall register as electronic filers or shall file an affidavit or declaration stating their reasons for not complying.”11 This particular case had over a dozen lawyers and the “conventional” filers were creating a “burden of paper service on those who have complied with the court mandatory e-filing policy.”12 Magistrate Judge Nuffer has also remarked: “Orders such as this may become more common in the future.”13

Despite the loophole allowing attorneys to file conventionally and avoid the electronic filing requirement, conventional filing is obviously frowned upon by the Court. Through regular electronic filing, attorneys and staff will soon recognize the enormous benefits the CM/ECF system has to offer.

Be careful with confidential and private information
Obviously, electronic filing increases accessibility of court files for everyone. Although sensitive information was certainly part of the open court record before the arrival of the Internet, electronic filing makes such documents quickly and easily available to anyone in the world with an Internet connection.

To lessen the likelihood of possible misuse of such sensitive information, the Court has set forth guidelines in both the Local Rules14 and the District of Utah CM/ECF Administrative Procedures Manual.15 The Administrative Procedures Manual warns: “[c]ertain types of sensitive information should not be included in documents filed with the Court. Personal information not protected will be available on the Internet via CM/ECF.”16

If for some reason highly sensitive personal identifiers must be put in the filing, the Court directs that only partial information be disclosed. For example, social security numbers should only display the last four digits, names of minor children should contain only initials, dates of birth should have only the year listed, financial account numbers should include just the last four numbers, and references to home addresses should contain only the city and state.17

It has been my experience that most violations of this rule do not occur in the pleadings themselves, but in the exhibits. Practitioners should be extremely careful to redact sensitive information when exhibits contain social security numbers, driver license numbers, medical records (which may contain social security and driver’s license numbers in addition to medical information), employment histories, information regarding crime victims, or proprietary or trade secret information.18

Do not expect the Clerk’s office to catch your mistakes in this regard. As stated in the Local Rules: “Responsibility for redacting these personal identifiers rests solely with counsel and the parties. The clerk will not review any document submitted for filing to determine whether it complies with this rule.”19

Continue to include certificates of service with your pleadings
As mentioned above, attorneys who participate in the CM/ECF system receive service of all court-filed documents electronically. This is true whether the document originates from a party or the court. When a document is filed, an e-mail notification is sent to all counsel of record within minutes of filing. This e-mail contains a hyperlink which allows you to view and print the corresponding document(s). Such e-mail notification is known as a Notice of Electronic Filing (“NEF”) and serves as “proof of service” if such proof becomes necessary.20

Although Federal Rule of Civil Procedure 5(d) states that all documents (after the complaint) shall contain a certificate of service, the Administrative Procedures Manual allows omission of the certificate of service if all parties to the action are electronic filers.21

Difficulty arises when a case has one or more party that is listed as a “conventional” filer. If there is a “conventional” filer in the case, any party filing a document must also serve the conventional filer in a conventional method (mail or facsimile). If such conventional service is necessary, the Administrative Procedure Manual does not allow omission of the certificate of service.22

This precise situation was addressed in a relatively recent case when a defense attorney electronically filed a response to a motion without a certificate of service.23 The plaintiff, a pro se prisoner and non-registered e-filer, claimed he was not served the response. Due to this claim and because there was no certificate of service, the plaintiff filed a “Motion to Strike Response to Motion.”24

In reply, the defense attorney claimed that although the Response did not contain a certificate of service, it was in fact mailed to the plaintiff at the appropriate federal correctional facility. Further, the attorney attached an affidavit from the legal assistant explaining that the legal assistant was under the “mistaken impression that when a document was filed electronically, a certificate of service was no longer needed.”25

Judge Ted Stewart had mercy upon the defense attorney in this regard and held that “the failure to attach a certificate of service to the document at issue was the result of inadvertent and excusable neglect or mistake which was the result of confusion over the major transition of the Court to CM/ECF. The Court finds that this error was remedied and that the documents were mailed, and that Petitioner has suffered no prejudice.”26

Because of the apparent conflict between Federal Rule of Civil Procedure 5(d) (which requires a certificate of service on all documents filed after the complaint) and the Administrative Procedure (which allows omission of a certificate of service if all parties are electronic filers), it is prudent to always include a simple certificate of service even if the document is electronically filed and all parties are registered electronic filers. Such a practice will avoid possible problems as illustrated above.

Insert hyperlinks into your pleadings.
Administrative Rule II.C.1 states: “citations of legal authority in standard citation format may be hyperlinked to recognized electronic research services, such as Westlaw, Lexis/Nexis, Findlaw and official government sites.”27 Free software products from Westlaw28 or Lexis29 makes adding such hyperlinks relatively simple. Once downloaded, this software can scan (with one click of a button) a Word or WordPerfect document for citations and automatically insert hyperlinks into the document.

Adding hyperlinks to your court filing essentially allows one-click access to legal sources from the electronically filed PDF document. For example, if the citation Finisar Corp. v. DIRECTV Group, Inc., 424 F.Supp.2d 896 (E.D. Tex. 2006) is used in a brief, and the judge or law clerk wishes to examine that case in more detail, clicking on the hyperlink will immediately pull up the precise case in Westlaw (or other research service) via the Internet. There is no need to pull out casebooks or type in lengthy citations into Westlaw to view the case.

Obviously, this makes life much easier for the often over-burdened judge and staff.

Check your e-mail regularly and adjust your spam filter.
After one becomes a registered electronic filer, the only notification of a court filing will be an e-mail to your designated e-mail address(es). A paper copy of the court filing from opposing counsel will likely not arrive at your office, since none is required. If the e-mail notification is not received (or read), it is certainly conceivable (even likely) that an attorney has no idea an appropriate response is due. This can create serious malpractice concerns, especially considering the Court’s Local Rule which states: “Failure to respond timely to a motion may result in the court’s granting the motion without further notice.”30

Not many things in life can cause more panic to plaintiff’s counsel than discovering his case was dismissed pursuant to a motion for summary judgment that plaintiff’s counsel did not even know was filed.

Failure to receive e-mails can occasionally be attributed to an over-aggressive spam filter. Adjust your spam-filter so that e-mail notifications get to your inbox. If that does not work, have e-mail notifications sent to a secondary e-mail address (the e-mail notifications can be automatically sent to up to three separate e-mail addresses).31 If a practitioner is still concerned about possible missed e-mail notifications, the “Email Sent” report can be easily viewed in the “Reports” section of CM/ECF.

Also, be sure that the e-mail notifications are sent to e-mail addresses that are regularly monitored. If notifications are sent to just one e-mail address, that inbox simply cannot be ignored for a week. It is a good practice to have notifications sent to the attorney, secretary and paralegal assigned to the case. Associates can also be easily added as additional counsel and have notifications sent to them (and their staff) as well.

Understand the possible consequences of not using CM/ECF correctly.
Magistrate Judge Nuffer maintains a weblog (or “blog”) to assist attorneys and their staff with the CM/ECF system.32 In one entry, Judge Nuffer made note of an attorney, who despite having signed up for electronic filing, put the following text on his “auto-reply” e-mail function that would be automatically distributed to all those who sent the attorney an e-mail:
I am unavailable and due to the volume of emails that I receive, do not assume that I will actually read and/or respond to your email. Accordingly, I am not accepting service by email. If you have time sensitive materials, please forward them both to [name and email address redacted] and to [name and email address redacted] and/or telephone them at [phone number redacted]. Thank you for your cooperation.33

Ironically, if a document was served electronically to this attorney through the federal court CM/ECF system, the above “auto-response” e-mail would have never been sent to the serving attorney, since the notification e-mails are generated and sent by the court.

If one registers for electronic filing, he/she consents to electronic service, whether they like it or not. One cannot simply declare: “I do not accept service via e-mail” and expect that statement to take precedence over court rules.

Also, once a filing, order, or other document is served electronically, the attorney is deemed to have actually read the contents of the filing. For example, in one recent case, an attorney was sent an e-mail notification of a Court’s order that contained certain time-sensitive deadlines. However, the Judge noted: “counsel did not comply with the conditions of the order . . . because he never read the order.”34 The attorney argued that he “tried to read the order when the Notice of Electronic Filing was sent to him, but was ‘unable to do so’ . . . .”35 Counsel also “mistakenly believed he would receive a copy of any order by mail.”36

In giving counsel “one last chance,” Judge Dale Kimball held:

[S]ome attorneys have been having problems understanding the new electronic case filing system. The court does not condone . . . counsel’s conduct, but it recognizes that he could have been genuinely confused about whether an Order was attached to the e-mail notification of electronic filing. This court will give him the benefit of the doubt once. Attorneys in this district are charged with learning and becoming proficient with the court’s new system. As is evident in this matter, attorneys who do not educate themselves with regard to the new process run the risk of prejudicing their clients. . . . [C]ounsel is warned that this court will not condone another such misunderstanding from him with respect to the court’s electronic case filing system.37

Use available resources.
Before an attorney is given a password to use the CM/ECF system, they must receive the required training or have been previously registered to use CM/ECF in another district. This simple (and short) training can be obtained either at the courthouse,38 on the Internet,39 or through in-firm training.40 In addition to the free training, the District of Utah has done a wonderful job of providing continuing support. This includes a CM/ECF website containing the latest information and updates,41 a “CM/ECF User Manual,”42 a monthly newsletter distributed by the Court devoted to CM/ECF,43 Magistrate Judge Nuffer’s blog on “Utah District Court CMECF Updates,”44 and the CM/ECF telephone help desk which is staffed during court business hours.45

The training and resources available on the Internet answer most, if not all, questions you may have. If all else fails, the telephone help desk is more than willing to walk any attorney or staff member through any type of filing.

Conclusion
Electronic filing is certainly a significant change to the practice of law. There are undeniable growing pains associated with this change. However, like it or not, electronic filing in federal court is here to stay. Considering the above-outlined advantages of electronic filing, the Court’s encouragement to attorneys to properly utilize CM/ECF, and the possible consequences of not using CM/ECF correctly, the time spent familiarizing yourself and your staff with this system is time well spent.

1. The author gratefully acknowledges the assistance of The Honorable David Nuffer, United States Magistrate Judge for the District of Utah, in writing this article.

2. Graczyk, v. Weider Nutrition Group, Inc., 2:04-CV-01065 DAK, Order Granting Motion to Exclude Expert Report and Expert Testimony, docket no. 125, p. 2, June 16, 2006.

3. Rolen Yoshinaga, Eric Leeson and David Nuffer, Is Electronic Court Filing in Your Future? 10 Utah Bar J. 15, April 1997.

4. District of Utah CM/ECF Administrative Procedures Manual, September 22, 2006, p. ii.

5. Magistrate Judge Nuffer, Attorney E-Filings Steady, at Utah District Court CMECF Updates, http://utd-cmecf.blogspot.com/2006/10/attorney-e-filings-steady.html, October 2, 2006 (last visited December 5, 2006).

6. Id. In September 2006, 9,103 total documents were filed, 3,020 of which were filed electronically (for a total of 33.18%).

7. District of Utah CM/ECF Administrative Procedures Manual, September 22, 2006, p. ii. Section I.A.1., p. 1, Section II.F.1, p. 7.

8. Id., Section II.F.4, p. 8. This section mandates conventional filing of certain documents, including (but not limited to) papers filed pro se, ex parte submissions to the court, and sealed documents.

9. Attorneys have the option of receiving “Summary” Notice of Electronic Filings (“NEF”) rather than receiving a separate NEF for each document. The Summary NEF is generated and sent to the attorney at approximately midnight each night and includes all items filed within the last 24 hours. If the attorney chooses the summary option, the notification and service will obviously not be immediate.

10. Letter sent from the United States District Court for the District of Utah, June 14, 2006. See also, Magistrate Judge David Nuffer, Attorneys Who Are Not E-Filers Get Special Letter, at Utah District Court CMECF Updates, http://utd-cmecf.blogspot.com/2006/06/notice-to-unregistered-counsel.html, June 14, 2006 (last visited December 5, 2006).

11. Phillip M. Adams & Associates, L.L.C. v. Lenovo International et al, 1:05-CV-00064, docket entry no. 111, June 5, 2006.

12. Magistrate Judge David Nuffer, Report – Notice to Unregistered Council, at Utah District Court CMECF Updates, http://utd-cmecf.blogspot.com/2006/06/notice-to-unregistered-counsel.html, June 6, 2006 (last visited December 5, 2006).

13. Id.

14. DUCivR 7-3; DUCrimR 47-2.

15. District of Utah CM/ECF Administrative Procedures Manual, September 22, 2006, Section II.D.1, p. 6.

16. Id.
17. Id.; DUCivR 7-3(a); DUCrimR 47-2(a). Further, “[w]here a party deems it necessary to file a motion, pleading, document, or exhibit with unredacted personal data identifiers, the party may do so under seal . . . .” DUCivR 7-3(b); DUCrimR 47-2(b).

18. District of Utah CM/ECF Administrative Procedures Manual, September 22, 2006, Section II.D.2, p. 6; DUCivR 7-3(c); DUCrimR 47-2(c).

19. DUCivR 7-3(a); DUCrimR 47-2(a). See also District of Utah CM/ECF Administrative Procedures Manual, September 22, 2006, Section II.D.3, p. 6.

20. District of Utah CM/ECF Administrative Procedures Manual, September 22, 2006, Section II.H.4, p. 12.

21. Id.

22. Id.

23. Colonna v. United States of America, 2006 U.S. Dist. Lexis 43964 (D. Utah, June 13, 2006).

24. Id. at 14-15.

25. Id. at 16.

26. Id. at 16-17.

27. District of Utah CM/ECF Administrative Procedures Manual, September 22, 2006, Section II.C.1, p. 5.

28. http://west.thomson.com/westcitelink/ (last visited December 5, 2006).

29. http://support.lexis-nexis.com/lndownload/default.asp (last visited December 5, 2006).

30. DUCivR 7-1(d).

31. District of Utah CM/ECF Administrative Procedures Manual, September 22, 2006, Section IV.1, p. 15.

32. Magistrate Judge Nuffer, Utah District Court CMECF Updates, http://utd-cmecf.blogspot.com (last visited December 5, 2006).

33. Magistrate Judge David Nuffer, Attorney Auto Response to E-mail: Return to Sender!,
at Utah District Court CMECF Updates, http://utd-cmecf.blogspot.com/2006/08/attorney-
auto-response-to-e-mail.html, August 11, 2006 (last visited December 5, 2006).

34. Graczyk, v. Weider Nutrition Group, Inc., 2:04-CV-01065 DAK, Order Granting Motion to Exclude Expert Report and Expert Testimony, docket no. 95, p. 1, April 17, 2006.

35. Id.

36. Id.

37. Graczyk, v. Weider Nutrition Group, Inc., 2:04-CV-01065 DAK, Order, docket no. 125, p. 2, June 16, 2006.

38. http://ors.utd.uscourts.gov/cgi-bin/class.pl (last visited December 5, 2006).

39. http://www.utd.uscourts.gov/cmecf/training/training.html (last visited December 5, 2006).

40. http://www.utd.uscourts.gov/cmecf/documents/Firms_with_Court_Certified_Trainers.pdf (last visited December 5, 2006).

41. http://www.utd.uscourts.gov/cmecf/documents/ecfpage.html (last visited December 5, 2006).

42. http://www.utd.uscourts.gov/cmecf/documents/CMECF_User_Guide.pdf (last visited December 5, 2006).

43. http://www.utd.uscourts.gov/cmecf/documents/newsletter.html (last visited December 5, 2006).

44. Magistrate Judge Nuffer, Utah District Court CMECF Updates, http://utd-cmecf.blogspot.com (last visited December 5, 2006).

45. District of Utah CM/ECF Administrative Procedures Manual, September 22, 2006, p. ii. The Help Desk phone number is (801) 524-3248.