More on Appellate E-Filing
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Early this year, I accepted an offer from Texas Lawyer to write a quarterly column on technology issues affecting the publication’s namesake audience. The first article in this series—an update on appellate e-filing in Texas—appeared in this week’s issue. I am happy to report that Law.com picked it up as well.
I've received some nice feedback about the article since it came out. One particular commenter, Houston’s Scott Rothenberg (who, by the way, gives great ethics CLE presentations and is one of the funniest appellate lawyers you could ever meet) pointed out to me that the Supreme Court Advisory Committee has been considering how the appellate rules should be modified in conjunction with the TAMES program’s forthcoming launch. The SCAC’s initial rule re-draft and a proposed order directing the form of the record in civil cases are available through the links provided.
The SCAC thoroughly debated this initial proposal about a year ago (the meeting transcripts are here and here), but apparently has not come back to it since then. Though not an item on the current SCAC meeting agenda, the working re-draft provides a glimpse of the kinds of rule changes we should expect to hear more about soon.
Dear Mr. Smith,
Thank you for your recent article titled : 5th Circuit Gets E-Filing, Texas Appeals Court to Follow. Your article has been helpful in spreading the word that the 5th Circuit is now a CM/ECF court.
However, I'd like to point out a couple of statements which might be misconstrued and result in your readers having the wrong impression of our paper filing requirements.
My first point, you state "According to explanatory materials..., the 5th Circuit does not want paper copies unless it specifically requests them." Actually, we do not want paper copies UNTIL we request them. 5th Cir. R. 25.2.1 requires all filing users to provide documents in both electronic and paper format. 5th Cir. ECF Filing Standard E. (1) sets a 5 day limit for production of the paper documents once notified by our office.
We adopted this policy to benefit both the filing attorneys and our office. Our staff reviews electronically filed document to ensure they conform to the Federal Rules of Appellate Procedure, the 5th Circuit Rules and Internal Operating Procedures. If the documents are compliant, we then request paper copies. If the documents are not compliant we relay the deficiencies to counsel so that they may make corrections prior to spending the time and money on forwarding us paper copies that are not sufficient.
Second, you wrote "Under the new rules, briefs and motions uploaded in PDF format and processed through the ECF system will take the place of printed and bound versions." This is true ONLY in so far as service on other attorneys also filing electronically is concerned. Service on Pro Se parties will continue to be in paper. The 5th Circuit now requires both electronic and paper copies of filings. Users will be notified if the court changes that requirement.
Sincerely,
Tim Phares
Director of Case Administration
U.S. Fifth Circuit Court of Appeals
Tim:
My article was intended as an overview of the transition to e-filing in both the 5th Circuit and Texas state appellate courts. I agree that accuracy is important, and I apologize if the article left anyone with misimpressions about the 5th Circuit’s new e-filing program.
You are correct that 5th Circuit Rule 25.2.1 (adopted before e-filing was optional, much less mandatory) requires e-filing users to provide documents in both electronic and paper format. But the rule’s limiting phrase, “[e]xcept as authorized in the electronic filing rules and standards,” seems to direct users to the ECF Filing Standards (updated 03/09/10) as the final authority on that issue. I’m afraid Standard E and other reference materials available on the Court’s website are not as clear about the policy on paper copies as the statements in your comment.
Standard E states in part:
(1) When the court requests paper copies in addition to the electronic copies, filing users must file the same number of paper copies of documents as currently required by the rules for briefs, motions, petitions for rehearing, record excerpts, etc., see 5th Cir. R. 25.2.1. You must submit paper copies of pleadings within five days after the court requests them.
. . . .
(3) Filing users must maintain in paper form documents filed electronically for three years after the mandate or order closing the case issues, 5th Cir. R. 25.2.9.
Also, the FAQ section on the 5th Circuit’s ECF page includes the following:
When do I send in my paper copies of a pleading I filed?
Do not send paper copies of your pleadings that have been filed electronically until the court requests them.
Maybe I’m missing something, but I don’t see a standard or FAQ addressing the issue except to make clear that paper copies are not part of the initial filing. Moreover, the establishment of a three-year minimum period during which parties must keep paper copies of electronically filed documents raises questions about when, if ever, the Court might actually ask for hard copies. (Other questions: Why is the retention period necessary if the Court wants paper copies anyway? Doesn’t this approach defeat some of the major advantages of e-filing for all concerned?)
Aside from revising the standards and FAQs, the Court might consider communicating the clarification outlined in your comment in its briefing notice letters and briefing checklist. I received a briefing notice this week, and while it refers to the new electronic filing rules, it does not expressly state that hard copies are still required. The briefing checklist does not appear to have been altered since the new rule went into effect.
The lesson to be learned here is that practitioners should read the materials on the 5th Circuit website, and when in doubt, should contact the ECF Help Desk for guidance. The relevant contact information is ca05_cmecf@ca5.uscourts.gov or (877) 232-1038.
Thank you for taking the time to comment. Hopefully, this exchange will help clarify and avoid problems in implementing the ECF program. If I can do anything more, please don’t hesitate to contact me.
DTS
Based on this exchange, the federal process doesn't seem to be very far ahead of the Texas Supreme Court process. That Texas accepts the electronic copy by simple email seems like a big advance over the increasingly antiquated CM/ECF system, especially if paper will as a matter of course be requested in the FIfth Circuit.
Thanks to both of you for the clarifications.
I'm not sure where I stand on this. On the one hand, always requiring paper copies is not really "e-filing." On the other hand, screen reading is very different (and not as deep) as reading a paper copy. I think I'd RATHER that judges read hard copies, all things being equal. Alas, my kind are going extinct.