TECHNOLOGY E-Filing or E-Failure New Risks Every Litigator

By W. Kelly Stewart Should Know and Jeffrey L. Mills

While the repercussions It sounds easy enough. A few clicks, and off it goes. No of e-filing failure can more running down the street, sometimes literally, to be severe, protecting make a filing deadline. No more waiting frantically for a yourself—and your courier’s call confirming that your filing made it on time. No more time-­consuming calls to the clerk’s exist—risks with consequences for which client—is relatively simple. office verifying that your pleadings, which the law is evolving. Some of those risks, of you mailed, were received and were actually course, are inherent when you have to meet and timely filed. The coordination of cop- any forum- or rule-­imposed filing dead- ies and couriers has now been replaced by line, but many unique risks have arisen simple, electronic tasks—tasks that you can by virtue of the use of computer technol- do from your desk and that you do not even ogy. As one technology commentator put need to complete until minutes before the it, “A computer lets you make more mis- deadline. What could be easier and more takes faster than any invention in human convenient? You can rest easy. history—with the possible exception of But can you? handguns and tequila.” Herb Brody, The With the increasing use of electronic Pleasure Machine: Computers, Tech. Rev., filing—indeed, sometimes mandatory Apr. 1992, at 31 (quoting Mitch Ratcliffe), use—in virtually all federal district and quoted in United States v. Carelock, 459 bankruptcy courts, many federal appel- F.3d 437, 443 (3d Cir. 2006). late courts, state courts and administra- Many experienced practitioners may feel tive agencies, what at first blush may seem inclined to shrug their shoulders and think convenient and practical has created risks that e-­filing is not a big deal because their that you may not fully appreciate until you associates or assistants will ensure that ev- or a colleague have a “close call” with miss- erything runs smoothly. But, as explained ing a deadline. And while electronic filing below, courts place the blame for mistakes is certainly convenient, attorneys practic- on the attorneys of record, and blaming ing in forums requiring electronic filing other staff will not insulate attorneys from now face new risks that did not previously adverse court decisions or having to tell cli-

■ W. Kelly Stewart is a partner of Jones Day in the firm’s Dallas office. Mr. Stewart defends companies against product liability and toxic tort claims and also represents companies and individuals in a wide vari- ety of business disputes. He also has represented clients in litigation and arbitration involving many single-­ product defect claims. Mr. Stewart is a member of DRI and its Technology Committee. Jeffrey L. Mills is an associate in Jones Day’s Dallas office and joined the firm’s New Lawyers Group in 2010.

28 n For The Defense n June 2011 © 2011 DRI. All rights reserved. ents that they missed a deadline. Indeed, completed. Does e-­filing after 5 p.m. (with close to the deadline. For some reason, as some courts have gone out of the way to ex- contemporaneous e-­service on opposing all litigators know, work on pleadings often press dissatisfaction with attorneys who fail counsel) count as service on that same day? tends to occur right up until the absolute to understand e-­filing, regardless of who ac- You must reexamine the rules and case deadline. tually carried out the e-­filing, even allud- law on filing and service for each court— For the uninitiated, filing electronically ing to potential malpractice claims. In the and recalculate previously assumed dead- can be more difficult than expected. You words of one court, “For practitioners in the lines—in light of the time of day that you must take several steps before you can e-file legal profession, unlike those in some oth- must submit an e-­filing. your document: setting up an account and ers, he who fails to pay attention may one The deadline may also change depend- obtaining a password, which may require day have to pay up.” Robinson v. Wix Filtra- ing on the type of pleading that you file. human approval and might take longer tion Corp., 599 F.3d 403, 414 (4th Cir. 2010) In the District of Minnesota, for exam- than 24 hours; converting your documents (Davis, J., concurring). ple, the local rules state that a document is to the court-­approved format, often a .pdf If attorneys recognize and address the timely if filed electronically by midnight, or a .pdf/a; selecting and attaching all of risks of e-­filing well before an electronic-­ but it must be filed by 5 p.m. if it is con- the correct documents and exhibits; click- filing deadline—andall persons involved in ventionally filed. D. Minn. CM/ECF Civ. P. ing your way through all the drop-down the process appreciates them, from clients I.B.1 (timeliness). Another local rule from menus and check-boxes while ensuring that to partners to associates to legal assistants the same court, however, states that “new you make the right selections; and then re- to secretaries—attorneys can minimize the cases” shall be filed by 5 p.m. D. Minn. viewing your selections to ensure accuracy. new risks and avoid adverse consequences. CM/ECF Civ. P. II.A.2.d (filing new cases). This process takes more time than you may E-­filing a “new case” under those local foresee, which can endanger your timing Risks and Ramifications— Minnesota rules was at issue in PHL Vari- if not anticipated. Additionally, even if you A New Breed of Problems able Insurance Co. v. U.S. Bank National initially meet a deadline, a court can reject “How hard can it be?” is a question that Ass’n, Civ. No. 10-1197 (RHK/AJB), 2010 a filing if in filing it you did not choose from many of us have thought when told that we WL 3926310 (D. Minn. Oct. 4, 2010). The among the electronic fields properly, which must file documents electronically. After plaintiff’s attorney in that case e-filed a can cause you to miss the deadline if you do all, many people manage lots of trans- complaint on the last day of a two-year not receive a rejection notice with sufficient actions, such as banking and shopping limitation period at 5:33 p.m. The court time to correct mistakes. transactions, electronically every day. deemed the complaint untimely because it But whether you are a seasoned or nov- was a “new case” filed 33 minutes after the Missing a Deadline by Trying to File a ice filer—and whether you use the federal court closed, and the plaintiff lost the abil- Document That Exceeds File-Size Limits courts’ CM/ECF system, LexisNexis File & ity to prosecute its claim. The PHL Vari- A deadline can also be missed by attempt- Serve, or another electronic system—you able court is not alone in holding that an ing to file a document that is too big— still need to recognize and avoid the new electronic filing completed after the court’s megabyte-­size-wise, not page-wise. traps of electronic filing. Many of the risks business hours—but before midnight that Depending on the court, you will probably in e-­filing are obvious. Some are not. Yet, same day—was untimely. See, e.g., Stark v. have to file pleadings in different manners with some exceptions, most mistakes pri- Right Mgmt. Consultants, 247 F. App’x 855 to adhere to different filing system limits. marily result in one thing that makes all lit- (8th Cir. 2007) (holding that a complaint For example, the Northern District of Illi- igators shudder: missing a deadline. electronically filed at 11:27 p.m. did not nois system allows you to e-file pleadings meet the 5 p.m. deadline for new case fil- of up to five megabytes in size; otherwise, Missing a Deadline by Miscalculating It ings); but cf. People ex. rel Madigan v. Ill. you have to break a pleading into separate Surprisingly, e-­filing can actually cause Commerce Comm’n, 899 N.E.2d 227, 232– pieces and upload each individually. Gen- confusion about the actual filing deadlines. 237 (Ill. 2008) (“[I]n the absence of a spe- eral Order on Electronic Case Filing, VII(B) The exact time of e-­filings matters with cific regulation, we cannot read a 5 p.m. (N.D. Ill. Apr. 30, 2009). The District of Col- respect to deadlines. Does e-­filing after deadline into the… rules.”). orado permits you to e-file pleadings of up the time that the forum’s office has closed to two megabytes. Filing Civil Suits, http:// for the day count as being filed that same Missing a Deadline by Underestimating www.cod.uscourts.gov/Filing.aspx (last visited day? Some forums deem pleadings e-filed the Time That It Takes Feb. 28, 2011). Other courts have different after the time that the forum’s office closes The “convenience” of having what would or do not have file-size limitations, such as as filed the next day. See, e.g., L. R. 1840(a) ordinarily be an end-­of-­the-­business-­day the District of Columbia. See, e.g., D.D.C. (Cal. Super. Ct. San Bernadino Co.) (a docu- deadline, when the courthouse closes, turn L. Civ. R. 5.4 (providing no limit on elec- ment is deemed filed “on the next business into an end-­of-­the-­actual-­day deadline, tronic file sizes, but allowing traditional day the clerk’s office is open for business midnight, can be a blessing and a curse. filing for exhibits and attachments greater if the lodging occurred after normal busi- While having extra time can be useful, of than 500 pages). While you can address ness hours of the clerk’s office”). Another course, the idea that a pleading can be elec- these limitations relatively easily if you easy-­to-­overlook but fundamental issue is tronically filed often encourages, in reality, know about them ahead of time, discov- when service, as opposed to filing, must be editing up to a point that is dangerously ering that your pleading file size is too

For The Defense n June 2011 n 29 TECHNOLOGY big with only minutes to spare is risky. In an incorrectly filed pleading could be filed Despite the “filed” notification, the Sixth other words, receiving a rejection notice again after the deadline). Circuit held that the plaintiff’s complaint from a court at 11:59 p.m. or even earlier is Similarly, an electronic file titled “No- was untimely. not something anyone wants. Courts have tice of Appeal” was in fact a notice of appeal rejected excuses when attorneys miss dead- from another case, which caused the attor- Missing a Deadline Due to lines because they tried to file pleadings ney to miss an appellate deadline when he Technology Glitches that did not comply with the rules on over- filed it instead of the correct notice of ap- Paper filing and e-­filing have one thing sized pleadings. See, e.g., Satterlee v. Allen peal. United States v. Carelock, 459 F.3d 437 in common: Murphy’s Law. Traffic jams, Press, 455 F. Supp. 2d 1236, 1244 (D. Kan. (3d Cir. 2006). Upon receiving a “quality broken-­down cars, and snow storms have control message” noting the errors from the been replaced by viruses, deleted files, and court, the attorney reviewed the correct no- system crashes. Software and hardware can tice in his personal computer files, but not and do malfunction, including electronic Most mistakes primarily the notice that he actually filed. Id. at 439. filing systems mandated for use by courts. Concluding that nothing was wrong, the Unfortunately, placing blame on techno- result in one thing that attorney ignored the court’s notification. logical trouble can fall on unsympathetic He discovered the problem several months ears: “Computer failures, not unlike human makes all litigators shudder: later. The Third Circuit noted that an attor- failures, must be anticipated.” Martinelli v. ney must be super-­diligent in e-­filing: Farm-Rite, 785 A.2d 33, 36, 345 N.J. Super. missing a deadline. [W]e note that the cause of this error was 306, 312 (2001). At least one other court that [plaintiff’s] counsel had unfortu- has equated the failure of computer equip- nately failed to double-­check the docu- ment to the classic dog-­ate-­my-­homework 2006) (“[C]oun­sel bears responsibility for ment he had successfully transmitted to excuse, noting that “[i]m­per­fect technol- this oversight.”). the District Court. Although the mod- ogy may make a better scapegoat from ern use of the computer is a good time- the family dog in today’s world, but not so Missing a Deadline by Inadvertently saver, its ease of use should not assuage here.” Fox v. Am. Airlines, 389 F.3d 1291, Filing the Wrong Document the almost obsessive attentiveness that 1294 (D.C. Cir. 2004). Even so, courts have Although it sounds basic, with e-­filing is required when filing any document not been entirely unsympathetic, and some you should always confirm whether you with a court. have recognized that computer problems uploaded the correct documents and Id. at 443. Having chastised the attorney, may occur. Federal courts typically have attachments before you hit “submit.” Craig the Third Circuit dismissed the appeal for rules explaining the hoops that an attor- v. Police Jury of Grant Parish, 347 F. App’x lack of jurisdiction. ney must jump through if a court’s CM/ 119 (5th Cir. 2009), involved an attorney ECF system is down. See, e.g., L. Civ. R. 5.1 who attached the wrong .pdf file as his Missing a Deadline by ¶15 (D.N.J.) (requiring an affidavit stat- electronic notice of appeal, and the clerk Misinterpreting E-Filing Notices ing filer attempted “to file electronically at did not send a deficiency notice. But the When you physically file a pleading at a least two times at least one hour apart after docket noted that the pleading was “[f]iled courthouse, you usually receive in return a 12:00 noon”). Those rules will not protect in error—counsel advised to resubmit with file-stamped copy of the actual, filed doc- you, however, if your own computer system corrected .pdf document attached.” Id. ument. The equivalent notice obtained crashes or has other problems. at 120. The clerk had e-mailed the attor- when e-­filing—even one that notes that the When that happens, courts have seemed ney stating, “[w]e have edited the text of pleading was “filed”—may not always pro- very willing to pinpoint the carelessness of the previous docket entry and no fur- vide that much comfort. In Kellum v. Com- counsel as the real reason for filing failures ther action regarding this submission is missioner of Social Security, 295 F. App’x 47 based on technical glitches. For instance, required at this time.” Id. at 121. The fil- (6th Cir. 2008), the plaintiff had 30 days to the plaintiff’s attorney in Robinson v. Wix ing attorney—unaware that the original file a judicial challenge to the denial of dis- Filtration Corp. was unaware of defen- .pdf was the wrong document—assumed ability benefits. On the last day of the filing dant’s motion for summary judgment and that the filing was proper. Once the prob- period, the plaintiff’s attorney e-filed the never responded to it. 599 F.3d 403 (4th Cir. lem surfaced, the attorney filed a corrected complaint but did not include credit card 2010). The attorney contended that severe notice. Nevertheless, the Fifth Circuit held information for the filing fees. He received computer problems prevented receipt of that it was untimely, noting that reliance an e-mail notification that day stating that electronic notice of the motion. The court on misinformation generated from an elec- the complaint was “filed” on the deadline. denied the attorney’s argument for relief tronic filing system will not vitiate the time The next day, the clerk informed the plain- because it found that his failure to receive requirements for appeal. Id. at 124; see tiff’s attorney that the required fees were notice resulted from his “conscious choice also Kinsley v. Lakeview Reg’l Med. Ctr., not paid, which the attorney then paid a not to take any action with respect to his 570 F.3d 586 (5th Cir. 2009) (holding that few days later. The complaint, however, computer troubles.” 599 F.3d at 408. a deadline set by the federal rules was not was then date-stamped by the court on the Likewise, even in light of an unopposed extended by a deficiency notice stating that day of payment—after the filing deadline. motion for an extension of time after a

30 n For The Defense n June 2011 memorandum of law, declaration and ex- made with an electronic redacting tool that Geer v. Cox, 219 F.R.D. 527, 528 (D. Kan. hibits in support of a motion to disqualify could be deleted, “exposing the underlying 2003), noted that the plaintiff’s counsel were filed several minutes after a midnight information.” Id. The court noted that there did not receive electronic notification of deadline, the Southern District of New York was no excuse for not complying with the the defendant’s opposition to class certi- recently found that the motion was un- Federal Rule’s requirements of redacting fication because the local counsel’s com- timely filed. Graves v. Deutsche Bank Sec., certain personal information from plead- puter system was “in a transition period.” Inc., No. 07 Civ. 05471, 2011 WL 1044357 ings or their attachments: Thus, the plaintiff’s counsel failed to timely (S.D.N.Y. Mar. 4, 2011). Although the filing Every federal district court has now respond and filed a motion to reconsider attorney provided a detailed explanation as embraced electronic filing. The days of the court’s order denying class certifica- to how his computer system malfunctioned attorneys being able to ignore the com- and such malfunction was beyond his con- puter and shift blame to support staff in trol—an explanation that caused the court the event of an error are gone. The con- to conclude that the attorney “acted in good sequences are too serious. To the extent Courts have rejected faith”—the court still found that the attor- there are attorneys practicing in federal ney failed to show good cause to justify his court who are under the impression that excuses when attorneys neglect in filing before the midnight dead- someone in the Clerk’s office will comb line. Id. at *4. through their filings for errors and call miss deadlines because they them with a heads-up, the Court deliv- Improperly Handling ers this message: ‘It is the responsibility tried to file pleadings that Confidentiality Issues of counsel to ensure that personal iden- Missing deadlines is not the only poten- tifiers are properly redacted.’ The days of did not comply with the rules tially harmful ramification of e-­filing. As paper filings—with accessibility to files required even with traditional filing, you limited not by law but by the practical on over-sized pleadings. must ensure that confidential information challenges of driving downtown, pay- is not improperly included in e-­filings by ing for parking, checking out the file, redacting, when allowed or required, or fil- and paying the friendly clerk of court to tion. Because the court’s e-­filing system ing under seal. E-filed documents are typ- make copies—are gone. was only a month old at the time, the court ically immediately publicly available, and Id. Finally, the court noted that attorneys gave the “plaintiff the benefit of the doubt” generally, they cannot be “unfiled” with- “who are slow to change run the very real and granted its motion. Id. at 528. The out court permission. Courts will presume risk of sanctions.” Id. The court then sanc- precedential effect of Geer, however, was that every attorney understands the conse- tioned the attorney. undercut by Satterlee, decided three years quences of clicking “submit” when filing. later. 455 F. Supp. 2d 1236 (D. Kan. 2006). Failure to take the proper precautions to Message from the Courts—Meet While it did not specifically abrogate Geer, preserve confidentiality when dealing with E-Filing Expectations—No Excuses the Satterlee court, citing the same local sensitive information in an electronically When it comes to e-­filing mistakes, courts rules, held that “[p]rob­lems on the filer’s filed document could lead to sanctions or repeatedly have rejected excuses based on end… will not constitute a technical fail- other liabilities, such as in Baella-­Silva v. someone’s unfamiliarity with filing proce- ure under these procedures nor excuse an Hulsey, 454 F.3d 5 (1st Cir. 2006). In that dures. For example, in Harman v. McAfee, untimely filing.” Id. at 1246 (internal quo- case the First Circuit affirmed a $50,000 691 S.E.2d 586 (Ga. Ct. App. 2010), the tation marks omitted). sanction against a party for electronically plaintiff’s counsel did not respond to the As courts’ expectation that attorneys will filing the terms of a confidential settlement. defendant’s motion for summary judgment achieve technological proficiency grows, Similarly, in Allstate Ins. Co. v. Linea because he did not review the docket dur- claiming ignorance can lead to embarrass- Latina de Accidentes, Inc., No. 09-3681, ing the filing period and did not receive ment, and judges may go out of their way 2010 WL 5014386 (D. Minn. Nov. 24, 2010), an e-mail notification of the filing. The to criticize counsel: a plaintiff failed to redact birth dates, plaintiff’s counsel claimed that he was Compliance was not achieved because names of minors, financial account infor- out of town during the filing period and counsel failed to educate himself about mation, and one social security number that his e-mail inbox reached capacity and a sea change in filing requirements that from some 160 pages of an exhibit to an “bounced” the notification back to the had taken place more than three years amended complaint. After defense coun- sender. The court rejected this excuse and before the relevant events of the instant sel moved to seal the amended complaint, found that it was the counsel’s responsibil- case. the attorney “showed no sense of urgency ity to ensure that his e-mail account was set Kanoff v. Better Life, 350 F. App’x 655, 658 or comprehension of what had been done” up properly. Id. at 589. (3d Cir. 2009). Likewise, another “I cannot and blamed the problem on a “misunder- Even courts that were once amenable figure it out” excuse fared no better: standing between [him] and his staff.”Id. at to requests for leniency arising from com- [Counsel] appears to persist in believing *2. The attorney then filed an another set of puter problems have apparently changed that his decision not to learn to e-file ab- exhibits, but this time the redactions were their tune. The District of Kansas in solves him from the rules applicable to

For The Defense n June 2011 n 31 TECHNOLOGY

all attorneys practicing in this district. response was not excusable neglect. Sat- the transaction.” Id. at *7. He correctly The court understands that [counsel] has terlee, 455 F. Supp. 2d at 1243–45. filed the following day, after the deadline. taken the position that he is computer-­ • Mere belief that a jury demand was Id. The court was persuaded that excus- illiterate and cannot use a computer in timely filed electronically by counsel able neglect existed because the filing attor- any way, and is thus incapable of learning familiar with the electronic filing sys- ney “attempted to comply” with the order how to e-file…. [The court] expects that tem was deemed “either carelessness or of the court. Id. In Pace, the court found all counsel appearing before the court an oversight on the part of counsel,” and excusable neglect after an electronic notice will either learn to e-file or arrange for the jury demand was denied as being was diverted into a blocked e-mail folder at someone to do so for them. untimely. Richardson v. Image Sensing appellant’s counsel’s law firm because the Sys., Inc., No. C10-5629, 2011 WL 917523, firm’s e-mail system classified the notice at *3 (W.D. Wash. Mar. 16, 2011). as spam. 2010 WL 4530357, at *1. Although • Equitable tolling was not available to the the court called the question “close” and Paper filing and e-­filing plaintiff because by waiting until “last questioned why the notice evaded all six possible day” to file, the plaintiff’s attor- attorneys of record for the appellants, it have one thing in common: ney’s filing errors—which led to missed found no reason to “doubt the veracity of deadline—were not beyond his control. counsel’s explanation here, [that was] sup- Murphy’s Law. Traffic jams, Kellum v. Comm‘r of Soc. Sec., 295 F. ported by an affidavit and evidence from App’x 47, 50 (6th Cir. 2008). his firm’s information technology man- broken-down cars, and • Equitable tolling of the filing period ager.” Id. at 2. was not available when the post office Neither Flagship West nor Pace, how- snow storms have been incorrectly told the plaintiff’s attorney ever, may provide shelter for counsel in that a complaint would reach the court- similar predicaments. Federal courts—on replaced by viruses, deleted house by the deadline when the plain- the whole—seem to take the attitude that tiff’s attorney knew that electronic filing “counsel’s decision to represent a [party] files, and system crashes. was available. Ward v. Astrue, Case No. in federal court obligate[s] [counsel] to 5:09cv380/RS/EMT, 2010 WL 4386544 become familiar with electronic filing.” at *2, *6 (N.D. Fla. Oct. 29, 2010). Johnson v. Astrue, 2010 WL 2365527, at *3. Arrington v. La Rabida Children’s Hosp., • Arguing that the court should consider No. 06 C 5129, 2009 WL 928922, at *3–4 a document timely filed because the Failure of “Form” Is an Uncertain Defense (N.D. Ill. Apr. 3, 2009). attorney mistakenly believed that doc- Despite their willingness to hold attor- ument was timely failed because “coun- neys’ feet to the fire on e-­filing mistakes, “Excusable Neglect” Excuses sel’s unfamiliarity with an electronic some federal courts have taken a pragmatic Unlikely to Succeed filing system” does not support a find- approach to certain types of mistakes. When a filing error is based on an attor- ing of equitable tolling. Perry v. Accurate Those courts have generally reasoned that ney’s inattentiveness to or negligence Staffing Consultants, Civil No. 3:10-CV- an e-­filing misstep that would have been regarding e-­filing procedures, courts have 201-FDW-DCK, 2010 WL 2650881, at corrected by a court clerk if presented in left the attorney little leeway—repeatedly *4 (W.D.N.C. June 30, 2010); Johnson paper form should receive the same pro- rejecting arguments for equitable tolling of v. Astrue, Civil Action No. 3:09-CV-46, tection it would receive if it had been filed a filing period or excusable neglect: 2010 WL 2365527, at*3 (D. W. Va. June traditionally. Cases that have drawn on this • An attorney’s failure to receive elec- 8, 2010); Arrington, 2009 WL 928922, at reasoning use procedural rules that prevent tronic notice of summary judgment *2–4. a failure in “form” that was not willful from because of known computer problems Apparent outliers to the trend of reject- defeating a party’s rights. See Fed. R. Civ. P. does not constitute excusable neglect. ing excusable neglect are found in Flagship 5(d)(4), Fed. R. Civ. P. 83(a)(2) and Fed. R. Robinson, 599 F.3d at 409–10, 412–13. West, LLC v. Excel Realty Partners, L.P., App. P. 3(c)(4), 25(a)(4). This approach was • Rejecting excusable neglect because an No. CV-F-02-5200 OWW/DLB, 2007 WL illustrated in Farzana K. v. Ind. Dep’t of attorney’s failure to familiarize himself 1574967, at *7–9 (E.D. Cal. May 30, 2007) Educ., 473 F.3d 703 (7th Cir. 2007). There, with filing procedures led him to miss- and Pace v. AIG, No. 8 C 945, 2010 WL when the electronic filing system rejected ing a deadline. Kanoff, 350 F. App’x at 4530357 (N.D. Ill. Nov. 1, 2010). In Flagship the plaintiff’s petition because it had the 657–58. West, defense counsel timely filed a post- wrong docket number, and it was too late to • An attorney’s failure to comply with trial motion but did not meet the court’s file conventionally, the Seventh Circuit rea- local e-­filing rules “can hardly be con- deadline to file a memorandum in support soned that “the computer’s reaction does sidered the result of excusable neglect.” of that motion. When filing the memoran- more to show the limits of the program- McDowell-­Bonner v. D.C., 668 F. Supp. dum, the attorney “failed to complete the mer’s imagination than to render the suit 2d 124, 126–127 (D.D.C. 2009). technical steps required for electronically untimely.” Id. at 707. The court, in allowing • Failing to attach supporting docu- filing of documents” by not clicking “next” the late-filed pleading, juxtaposed the elec- ments to motion for summary judgment on the “last screen necessary to commit tronic and conventional filing processes:

32 n For The Defense n June 2011 Had a paper copy of the complaint been priate steps to prevent them from turning time that your scanner or conversion tool handed over… a deputy clerk would into missed deadlines or other problems. can create the right kind of electronic have crossed out the old docket number, There are some steps to take before any documents. Keep in mind that docu- stamped a new one, and filed the docu- e-­filing is due: ments scanned in an image format and ment; there is no reason to throw this • Know the local rules governing what, spe- then converted using certain OCR tools suit out of court just because the e-­filing cifically, is required regarding e-­filing. may have a larger size post-­conversion. system did not know how to take an • What e-­filing system does the court use? • Do not forget necessary redactions equivalent step. • How do you submit a filing fee, if re- for both the primary pleading and all Id.; see also Darouiche v. Fidelity Nat’l quired, for electronically filed pleadings? attachments. Ins. Co., No. 10-30554, 2011 WL 777874 • Predetermine the deadlines. Can plead- (5th Cir. Mar. 7, 2011) (allowing corrected ings or submissions be filed after the motion for new trial to be filed two days physical close of the forum’s office and after deadline when original motion was be considered filed that day? In other Courts have generally filed on deadline but proposed order was words, can a submission truly be filed not electronically filed as a separate attach- up to midnight? If timing of service is reasoned that an e-­filing ment); Vince v. Rock Cnty., Wis., 604 F.3d important, does electronic filing after 5 391 (7th Cir. 2010) (using the wrong event p.m. (with contemporaneous e-­service misstep that would have code was a failure in form); Phx. Global on all other parties) count as service on Ventures, LLC v. Phx. Hotel Assocs., Ltd., that day? been corrected by a 442 F.3d 72 (2d Cir. 2005) (district court • Ensure that you, or whoever will do deemed motion timely filed when system the filing, are a registered user with a court clerk if presented in rejected it because of large exhibit files and valid password, and that you or some- invalid hearing date); In re Last Will & Tes- one who will be with you when you file paper form should receive tament of Zill, C.A. Co. 2593-MA, 2009 WL are trained on how to use the electronic 3465375 (Del. Ch. Mar. 23, 2009) (rejection filing service. More than one person on the same protection it of documents for improper formatting of your team should be able and ready to exhibits had no legal effect; petition was e-file. The e-filer may in some cases need would receive if it had deemed filed on the day of initial filing). to be listed on the signature block of the Despite the possible shelter provided by filed document. been filed traditionally. a failure-­of-­form defense in some cases, • Once registered to electronically file, you should not use it as a crutch because adjust your spam filter to ensure that the federal courts have not reached consen- you receive all electronic notices from • Remember time zone differences. Do sus on which types of e-­filing mistakes con- the forum. Make sure that you review you really have until 11:59 p.m. in your stitute a failure of form. For instance, the all electronic notices to ensure that you time zone? Second, Seventh, and Ninth Circuits have do not have to take any specific action. • Understand the length of time that it will held that incorrectly filing a submission, • Know which documents you have to or take to file a pleading, including exhibits. either on paper or electronically, when the should file manually (pleadings that you Can you start the filing process at 11:55 local rules required otherwise was merely need to file under seal due to confidenti- p.m. and still meet a midnight deadline? an error in form. Contino v. United States, ality issues, pleadings that are too large), • Verify that the title of your pleading 535 F.3d 124 (2d Cir. 2008); United States and the size limitations on electronic matches with proximity the court’s v. Harvey, 516 F.3d 553 (7th Cir. 2008); filing if they exist. Plan to take steps to e-­filing event code names. This is espe- Klemm v. Astrue, 543 F.3d 1139 (9th Cir. break up “large” electronic documents cially important for courts using the 2008). The Tenth Circuit, however, has into appropriate sizes to meet any court-­ ECF system. It is a good idea to consider held that attempting to submit court doc- imposed file-size requirements. Do not the court’s electronic code-name list well uments electronically was noncompliant forget to mark exhibits appropriately before your deadline. when paper copies were required. Le Wil- and consider the bulk that they might • Verify that the correct document and liamson v. Deluxe Fin. Servs., Inc., 216 F. add to the size of documents. attachments are uploaded before you hit App’x 728 (10th Cir. 2007). • Know which types of documents you the “submit” key. Verify that all appro- must file in imaged form and which priate drop-down menus and other Recommendations—Avoid Turning you may file with an electronic signa- required fields are completed. Have the Your E-filing into E-failures ture. Documents requiring verification documents been properly described in While the repercussions of e-­filing failure or affidavits may need to be filed as an the required electronic fields? If you are can be severe, protecting yourself—and image of the original rather than as elec- uncertain which fields you must check your client—is relatively simple. In the first tronically signed documents. or complete, talk to the court clerk dur- place, make sure that all involved know • Know whether you must file documents ing business hours before the deadline. and understand the risks and take appro- in a searchable format. Be sure ahead of E-Filing Risks, continued on page 88

For The Defense n June 2011 n 33 E-Filing Risks, from page 33 • s As soon a possible, verify that you filed be surprised by the unexpected pitfalls— • Know ahead of time whether one mem- the correct document and exhibits. If and possible adverse consequences—of ber of a joint-­defense can file a pleading someone made a mistake, immediately e- ­filing. While some case law suggests that for other joint-­defense members. Often, contact the court clerk, and opposing courts appreciate the rigidity of e-­filing electronic filing allows you to electron- party,f i necessary, to rectify or follow any when computer filing systems reject what ically file a pleading only for the party court- ­imposed rules for fixing a mistake. courts otherwise would consider a proper for whom you are registered as coun- • Continually monitor the docket, espe- submissionf i filed conventionally, given sel.f I the pleading is to be filed for par- cially during times of e-mail or com- the risks and costs of attempts to rectify ties other than those you represent (such puter problems. Do not rely exclusively e- ­filing mistakes, banking on a court’s as, for example, in the case of a motion on a court’s electronic notices. pragmatism and mercy is not a wise strat- filedy b a group of defendants participat- Manyf o these suggestions make com- egy.e Th best practice, of course, is to antic- ingn i a joint defense), can you file it for mon sense, which is why they may be easy ipate and deal with these issues before you all joint-­defense members? to dismiss. But even seasoned litigators can e-file, getting it right the first time.

88 n For The Defense n June 2011