By Jeffry M. Nichols, Shareholder, Brinks Hofer Gilson & Lione

Transcription

1 PRACTICAL ASPECTS OF ELECTRONIC FILING By Jeffry M. Nichols, Shareholder, Brinks Hofer Gilson & Lione I. INTRODUCTION A. What is e-filing? 1. E-filing simply refers to the filing of a document electronically (e.g., over the internet) rather than through conventional paper means. B. Why is e-filing important? 1. E-filing helps streamline the process of filing, retaining, organizing, and routing documents. 2. Documents can usually be electronically submitted 24 hours a day, 7 days a week, 365 days a year. 3. In many instances, e-filing is mandatory. C. It is critical to get e-filing right the first time. 1. Examples of documents accidentally e- filed include redlined briefs, grocery lists, and memos criticizing a judge. 2. While the filing can usually be corrected, it may be forever hurtful to your case. II. WHERE CAN DOCUMENTS BE E-FILED? A. Federal Courts.

2 2 1. Ninety-three of the ninety-four federal district courts have implemented or are in the process of implementing e-filing programs. 2. The remaining district court, the Western District of Wisconsin, allows documents to be filed by Efforts are now underway to convert the appeals courts to e-filing. B. State Courts. 1. In Illinois, the Supreme Court has approved electronic filing pilot projects in 3 of the 22 circuit courts (Cook, DuPage, and Will counties). 2. To date, however, only the DuPage County Circuit Court has implemented e-filing. 3. The Illinois appeals courts and Supreme Court do not currently allow e-filing. C. Government Agencies. 1. U.S. Patent & Trademark Office. a. Patent and trademark applications can be e-filed, and the USPTO is encouraging e- filing through discounted filing fees. 2. U.S. Copyright Office. a. Starting in summer 2007, copyright applications can be e-filed, and the USCO is

3 3 III. similarly encouraging e-filing through discounted filing fees. 3. U.S. Internal Revenue Service a. Tax-returns can be e-filed. D. State Agencies. 1. Illinois Secretary of State. a. Corporate annual reports, for example, can be e-filed in certain instances. ARE THE E-FILING REQUIREMENTS AND RULES CONSISTENT AMONG THE FEDERAL COURTS, STATE COURTS, ETC.? A. Every different court and agency has its own set of e-filing rules and orders. 1. Before you e-file a document, therefore, you must become familiar with the applicable e-filing rules and orders. 2. The applicable rules and orders can usually be located on the respective websites of where you are e-filing. B. The general e-filing process, however, remains the same. 1. Generally speaking, you must identify who you are, who you are filing the document on behalf of, what you are filing, and then provide the court/agency with a PDF copy of the document. a. Because PDF copies are usually necessary, you must have the capability to create

4 4 IV. such documents (e.g., a computer, Adobe Acrobat, scanner, etc.). 2. E-filing in the Northern District of Illinois provides a good example of the practical aspects of e-filing, which can be applied elsewhere. There, e-filing is governed by the court s General Order on Electronic Filing available on the court s website. CASE STUDY: E-FILING AT THE NORTHERN DISTRICT OF ILLINOIS A. What must be e-filed? 1. In most instances, e-filing is mandatory. 2. All civil, criminal, and admiralty cases require e-filing except for: a. petty offenses, b. grand jury matters, c. student loan cases, d. qui tam actions (unless ordered by the court), e. sealed cases (unless ordered by the court), and f. any other specific case where the court orders that it not be assigned to ECF. (See General Order at p. 2). 3. This means that the judge s orders, etc. are also e-filed. (See General Order at pp. 5-6).

5 5 4. The e-filed documents must meet certain requirements. a. The documents must be converted to PDF files before filing. b. Each document cannot exceed 2 MB in size. Any document that exceeds this limit must be broken into multiple PDF files (such as a memorandum and exhibits) and filed as a document and attachments. (See General Order at p. 6). 5. E-filing may be excused in certain instances. a. Documents that cannot be reduced to an electronic format (such as an oversized blueprint) can be manually filed. b. Documents that exceed the 2 MB limit can be manually filed. c. In those instances, the documents are filed with the Clerk of the Court and served on the parties in the traditional manner. In addition, the filer must e-file a Notice of Paper Filing, which identifies the reasons why the documents could not be filed electronically. (See General Order at p. 6).

6 6 6. The following specific types of documents, however, should not be e- filed: a. the Complaint and associated documents that begin a case, b. restricted, sealed, or in camera documents, c. charging documents in a criminal case, d. warrants for arrest and summons in criminal cases, e. all documents that require the signature of a criminal defendant, f. pretrial services reports and pre-sentence reports, g. administrative records, h. state court records in a habeas corpus case, i. bankruptcy appeal records, j. ex parte motions, k. verdict forms signed by one or more members of the jury, l. bonds, m. letters of request, n. notices of appeal, and o. other documents reflected in the Court s General Order on Electronic Case Filing. (See General Order at pp. 2-3).

7 7 7. NOTE: Documents that are electronically filed and require original signatures other than that of the e-filer must be maintained until 4 years after the periods for appeal expire. (See General Order at p. 7). B. Who can e-file documents? 1. A unique login and password is required to e-file documents. a. NOTE: Each attorney must have their own login and password. It is not possible for a firm to have a single account. 2. To obtain a login and password, you must be either: a. a member of the Court s general bar, or b. admitted pro hac vice for a particular case before the Court. 3. If you are a member of the Court s general bar, one of the following three criteria must be met before an application for the login and password information can be submitted: a. You must complete the Court s training program, either in person or through their online program; or b. You are already registered as an e-filer in another district court; or c. You have received formal e- filing training at your firm.

8 8 NOTE: If you meet one of these requirements, you can pick up an application form at the clerk s office or by calling (312) and requesting a form by If you are only admitted pro hac vice, you can register for a login and password by completing and returning the application form available at the following link: Info/ef05prohac_fill.pdf. 5. Registration as an e-filer constitutes consent to electronic service of documents. (See General Order at p. 4). 6. The login and password required to e- file documents serve as the e-filer s signature on all electronic documents filed with the court. (See General Order at p. 7). 7. E-filed documents must include a signature block and the name of the e- filer must appear in the signature block as, for example, s/jeff Nichols. (See General Order at p. 7). 8. Documents requiring signatures of more than one party must be electronically filed either by: a. transmitting a scanned document containing all necessary signatures, b. representing the consent of the other parties on the document,

9 9 c. identifying on the document the parties whose signatures are required and by the submission of a notice of endorsement by the other parties no later than 3 court days after filing, or d. in any other manner approved by the Court. (See General Order at p. 8). 9. You do not yourself need to file the documents with your login and password. a. Your administrative assistant, for example, is permitted to e- file documents using your login and password, but you remain responsible for the document and e-filing. (See General Order at pp. 4 and 7). b. The name on the signature line should match the name of the e-filer. Thus, if the lead attorney s name is listed in the signature block (but a less senior attorney is responsible for filing the document), the lead attorney s login and password should be used (with the lead attorney s permission). C. When must documents be e-filed? 1. In general, documents must be e-filed by midnight Central Time on the date they are due, unless a local rule or order of the court requires filing or

10 10 service by a specific time of the day. (See General Order at p. 5). a. Note, for example, that a Notice of Motion must be served by 4:00 p.m. of the second business day preceding the date of presentment unless the Judge sets another time. (Local Rule 5.3). b. This is not the rule in every jurisdiction. Be sure to check the local rules and orders. 2. A document filed electronically is deemed filed at the date and time stated in the Notice of Electronic Filing that is generated upon e-filing. (See General Order at p. 5). 3. To limit the risks associated with waiting until the last minute, however, documents should generally be e-filed during normal business hours when the e-filing help desk is open. 4. NOTE: The electronic filing system is sometimes unavailable due to system maintenance, etc. For example, 7:00-7:30 a.m. on Fridays is usually reserved for routine maintenance. Any such downtime is usually publicized well in advance, but it can be inconvenient if it coincides with a due date. You should always check to make sure that the system will be up and running when you expect to file your documents.

11 11 D. How are e-filed documents served on the opposing parties? 1. When a document is e-filed, the e- filing system automatically generates a Notice of Electronic Filing, which is transmitted by to all e-filers in the case. 2. This Notice of Electronic Filing constitutes service under FED. R. CIV. P. 5(b)(2)(D) and FED. R. CRIM. P. 49(b) as to all e-filers in the case. (See General Order at p. 8). 3. All other parties to the case, which are not registered e-filers, must be served by conventional paper means (hand delivery, mail, etc.). (See id.). 4. A certificate of service must be included with all documents filed electronically. (See id.). 5. When opposing counsel receives the Notice of Electronic Filing, it will contain a description of the filing and hyperlink to view it. The hyperlink can generally be accessed once free of charge, and again for a fee. 6. NOTE: You can add additional addresses to your account, such as the addresses for your assistant or docketing department. When a Notice of Electronic Filing is circulated by the Court, it will be sent directly to them as well. E. Does a courtesy copy need to be provided to the judge or magistrate judge?

12 12 1. A paper copy of all e-filings (except an appearance form and return or service) must be provided to the judge or magistrate judge by the next business day, unless the judge or magistrate judge orders otherwise. (Local Rule 5.2(e)). 2. The paper copy should be placed in the drop box reserved for that purpose located at the south end of the clerk s office on the 20th floor of the courthouse, unless the judge or magistrate judge orders otherwise. F. What happens with a technical failure? 1. An e-filer that was not able to timely file a document as a result of a technical failure may seek appropriate relief from the court, which shall be granted for good cause. (See General Order at p. 9). 2. If you believe that you have made an e-filing error that needs to be corrected, contact the e-filing help desk immediately at (312) G. Who can view the documents e-filed in your case? 1. Anyone that has a PACER account can access the documents e-filed in a civil case online. a. Information about PACER, including applicable fees and how to register, can be found at the following link: pacer.psc.uscourts.gov/.

13 13 2. Documents filed in a criminal case may be viewed online only by the case participants, i.e. attorney and defendants. 3. The public can also access e-filed documents using a computer at the courthouse (even without an e-filing registration or PACER account). (See General Order at p. 9). 4. All documents in e-filed cases after October 1, 2002 are available with certain exceptions. Before then, only limited documents are available. V. CASE STUDY: E-FILING AN ANSWER AT THE NORTHERN DISTRICT OF ILLINOIS A. Go to the home page for the Northern District of Illinois (

14 14 B. Click on the CM/ECF link along the top of the page, which will bring you to the following page. C. Click on the CM/ECF link again, which appears at the top of the page on the right side. This should bring you to the following e-filing page.

15 15 D. Click on the link in the middle of the page entitled, Northern District of Illinois - CM/ECF LIVE, Ver Document Filing System, which should bring you to the following CM/ECF login page.

16 16 E. Enter your login and password (and client code, if appropriate), and click Login. 1. NOTE: The same process applies if you are logging into PACER, except that a different login and password is used. F. You should now be at the following CM/ECF page, which constitutes the CM/ECF home page.

17 17 G. Click on the Civil link at the top of the page, which will bring you to the following page.

18 18 H. Identify the appropriate general document description (in this instance, Answers to Complaints ), and click on the link. I. You will then be prompted to identify the case in which you are filing the document, at the following page. J. Enter the case number and click Next. K. When multiple cases have a similar case number, you may be prompted to choose the case at the following page.

19 19 L. Select your case and click Next. M. You will then need to identify the party filing the document, at the following page.

20 20 N. Click on the party name (or parties if multiple parties are filing the document) and click Next. O. Because you are filing an Answer, you will then be prompted to identify the Complaint that is the subject of the Answer, at the following page. P. Click on the appropriate complaint and click Next. Q. You will then be prompted to identify and upload the document(s) you are filing, at the following page.

21 21 R. Click on Browse and locate the document(s) to be e-filed. S. IMPORTANT: Once the document has been located, confirm it is the correct

22 22 document by right clicking on it and opening it up in Adobe Acrobat. After confirming the document is correct, click on Open. The file name will then appear in the text box as follows. T. If there are any attachments to the document (e.g., exhibits), click Yes next to Attachments to Document. (In this example, there are no attachments). U. Click Next to proceed. V. You will then be prompted to identify whether the Answer includes a counterclaim, cross-claim, or third-party complaint, at the following page.

23 23 W. Select counterclaim, cross-claim, or thirdparty complaint as appropriate and click Next. (In this example, none apply). X. You will then be prompted to identify whether the Answer includes a jury demand, at the following page.

24 24 Y. Type in Y or N as appropriate and click Next. Z. You will then be prompted to modify the docket text, at the following page.

25 25 AA. BB. Modify the text as appropriate (e.g., by typing in Second Amended if you are filing a second amended answer) and click Next. Finally, you will have one last opportunity to review the docket entry exactly as it will appear on the docket, at the following page. CC. DD. EE. If you are certain that everything is correct, click Next. You will then receive an e-filing confirmation, which should be printed for your files. In addition, a Notice of Electronic Filing will then be sent to all registered e-filers associated with the case. Following is a sample Notice of Electronic Filing.

26 26 VI. VIDEOS REGARDING E-FILING A MOTION AND NOTICE OF MOTION AT THE NORTHERN DISTRICT OF ILLINOIS A. Video of e-filing a motion (to be shown during presentation). 1. Note that the general steps for filing are similar to those for filing an Answer, but further steps are required to input additional required information. 2. Exhibits can be grouped into a single PDF file as long as the resulting file does not exceed 2 MB. B. Video of e-filing a notice of motion (to be shown during presentation). 1. The Notice of Motion and Motion must be separately filed.

27 27 2. In addition, the Notice of Motion must be filed after the motion has already been filed. VII. APPENDIX OF SUB-CATEGORIES OF E- FILED DOCUMENTS AT THE NORTHERN DISTRICT OF ILLINOIS A. If you click on Complaints, your filing options are: 1. Amended Complaint. 2. Counterclaim. 3. Crossclaim. 4. Intervener Complaint. 5. Petition for Writ of Habeas Corpus. 6. Third Party Complaint. B. If you click on Other Initiating Documents, your filing options are: 1. Application for Stay of Execution. 2. Bankruptcy Appeal. 3. Findings of Fact. 4. Motion to Vacate/Set Aside/Correct Sentence (2255). 5. Notice of Condemnation. 6. Notice of Removal. 7. Notice to Take Foreign Deposition. 8. Petition to Enforce IRS Summons. 9. Petition to Perpetuate Testimony. 10. Received Complaint. 11. Received Petition.

28 Registration of Foreign Judgment. C. If you click on Appeal Documents, your filing options are: 1. 7th Circuit Transcript Information Sheet. 2. Amended Notice of Appeal. 3. Appeal of Magistrate Judge Decision to District Court. 4. Appellants Brief. 5. Appellants Reply Brief. 6. Appellees Brief. 7. Designation of Record on Appeal. 8. Docketing Statement. 9. Notice of Appeal. 10. Notice of Interlocutory Appeal. D. If you click on Answer to Complaint, your filing option is: 1. Answer to Complaint. E. If you click on Other Answers, your filing options are: 1. Affidavit in Opposition. 2. Affidavit in Support. 3. Amended Answer to Complaint. 4. Answer to Writ of Garnishment Claim. 5. Objection to Report and Recommendation. 6. Withdrawal of Claim.

29 29 F. If you click on Motions, your filing options are too numerous to list here, but they are identified in the Motions manual available at the following link: fs/v30/filingamotion-v3.pdf). G. If you click on Notices, your filing options are: 1. Attorney Appearance. 2. Attorney Designation. 3. Certificate of Service. 4. Notice of Appearance with Offer of Judgment. 5. Notice of Change of Address. 6. Notice of Filing. 7. Notice of Lis Pendens. 8. Notice of Motion. 9. Notice of Removal. 10. Notice of Special Commissioner s Sale. 11. Notice of Voluntary Dismissal. 12. Notification of Affiliates Pursuant to Local Rule Withdrawal/Substitution of Counsel with Same Firm. H. If you click on Responses and Replies, your filing options are: 1. Affidavit in Opposition to Motion. 2. Affidavit in Support of Motion.

30 30 3. Memorandum. 4. Memorandum Opposition to Motion. 5. Memorandum in Support of Motion. 6. Objections. 7. Reply. 8. Reply to Response to Motion. 9. Response. 10. Response in Opposition to Motion. 11. Response in Support of Motion. 12. Response to Motion. 13. Rule 12 Statement. 14. Rule 56 Statement. 15. Statement in Support. 16. Sur-Reply. I. If you click on Trial Documents, your filing options are: 1. Exhibit. 2. Exhibit List. 3. Proposed Jury Instructions. 4. Proposed Voir Dire. 5. Trial Brief. 6. Witness List. J. If you click on Service of Process, your filing options are: 1. Acknowledgment of Service. 2. Affidavit of Service. 3. Certificate of Service.

31 31 4. Request for Waiver of Service. 5. Service by Publication. 6. Summons Returned Executed. 7. Summons Returned Executed as to USA. 8. Summons Returned Unexecuted. 9. Waiver of Service Executed. 10. Waiver of Service Unexecuted. 11. Writ of Habeas Corpus ad Prosequendum Executed. 12. Writ of Habeas Corpus ad Prosequendum Unexecuted. 13. Writ of Habeas Corpus ad Testificandum Executed. 14. Writ of Habeas Corpus ad Testificandum Unexecuted. K. If you click on Other Documents, your filing options are: 1. Affidavit. 2. Amended Document (NOT Motion). 3. Appendix. 4. Application. 5. Application for Writ. 6. Bill of Costs. 7. Certificate. 8. Consent to Magistrate Judge Disposition of Motion. 9. Declaration.

32 Financial Affidavit. 11. Financial Affidavit--CJA Interpleader. 13. Joint Consent to Jurisdiction by U.S. Magistrate Judge. 14. Jury Demand. 15. Other. 16. Petition (NOT Motion). 17. Pretrial Memorandum. 18. Proposed Pretrial Order. 19. Report of Rule 26(f) Planning Meeting. 20. Request for Default. 21. Response to Order to Show Cause. 22. Satisfaction of Judgment (Full/Pretrial). 23. Settlement Agreement. 24. Statement. 25. Status Report. 26. Stipulation. 27. Stipulation of Dismissal. 28. Suggestion of Bankruptcy. 29. Suggestion of Death. 30. Supplement. 31. Transcript Request. VIII. RESOURCES REGARDING E-FILING AT THE NORTHERN DISTRICT OF ILLINOIS

33 33 A. For more information regarding e-filing at the Northern District of Illinois, check out the following: 1. E-filing frequently asked questions: Info/FAQ-CMECF.pdf. 2. E-filing checklist: /attychecklst2.pdf. 3. General Order on e-filing: cedure06.pdf. 4. E-filing user guide and training videos: des/. 5. Call the e-filing help desk at (312) In addition, you can sign up for an instructor-led training class by calling Larry Appleson at (312)