Federal Appeals: The Scoop on Electronic Submission and Filing
by Douglas E. Cressler

Senior partner: “There was a time when we had to print everything that was to be filed with the court on paper, along with several copies as required by the rules, then physically mail or deliver the whole stack of stuff to the court and send additional paper copies of everything to all the parties in the case.”
New associate: “Wow. And were the deliveries made on dinosaurs?”
─ A near-future law firm conversation.

Since Dec. 1, 2004, the U.S. Court of Appeals for the Tenth Circuit has required that motions, briefs and petitions filed with that court be submitted electronically in addition to the usual hardcopy filing. At the same time, the court is developing a new docketing system that will permit true electronic filing, eliminating the need for filing paper documents. This article summarizes the federal appellate court’s current electronic submission requirements and previews the changes appellate practitioners can expect when true electronic filing becomes a reality with the circuit court.

THE CURRENT PRACTICE

The Tenth Circuit Court of Appeals is currently operating under an Emergency General Order filed Oct. 20, 2004, made effective Dec. 1 of that year. The order provides generally that in addition to the paper filings required by the Federal Rules of Appellate Procedure and local Tenth Circuit Rules, certain documents must also be transmitted to the court in electronic form. The order is accessible from the court’s Web site by clicking on “electronic submissions.”

The order has been amended twice since its adoption. It currently requires that all motions, petitions, briefs, bills of cost and Fed. R. App. P. 28(j) letters be submitted to the court in “digital form.” That term is expressly defined in the order as follows: “[I]n Portable Document Format (also known as PDF or Acrobat format and sometimes referred to as Native PDF) generated from an original word processing file, so that the text may be searched and copied: PDF images created by scanning documents do not comply.”

The required digital format, as opposed to the scanned form of PDF document, allows the court to search and copy text from submitted documents, thus facilitating appellate review. The order permits the inclusion of scanned attachments to digital submissions, but only when the attachments are not available in digital format.

A routine example illustrates how the order operates. Tenth Circuit Rule 28.2(A) requires that all pertinent written findings, conclusions, opinions and orders of the lower tribunal be included with the brief of the appellant. If those documents are only available in paper form, they can be scanned together into one additional PDF document and transmitted along with the digital brief. Therefore, the e-mail transmission to the court would contain two PDF files: one in searchable digital form containing the brief, cover-to-cover, and a second file containing the attachments to the brief in scanned form.

Submission by mailing a CD-ROM to the clerk is required when the materials submitted are under seal. All unsealed submissions should be sent via e-mail to esubmission@ca10.uscourts.gov. There is no need for special authorization, sign-on codes or passwords to submit electronically by e-mail.

Within a short time after submission, the electronic documents are linked by court staff to the PACER (Public Access to Court Electronic Records) docket and can be accessed, for a fee, through that system. Information about PACER registration is available at http://pacer.psc.uscourts.gov/register.html

Appellate practitioners are advised to read the order carefully and to also comply with its requirements governing identification and signing, certification, service and privacy redactions. As noted above, the electronic submission does not replace, but is in addition to, the requirement of actual filing in hard copy with the requisite number of copies, as provided by rule. Practitioners with questions should call the circuit clerk’s office at (303) 844-3157 or e-mail esubmission@ca10.uscourts.gov.

THE FUTURE – TRUE ELECTRONIC FILING

The circuit’s electronic submission process is just a warm-up for the advent of electronic filing. As the order states, electronic submission was adopted by the court “to evaluate the usefulness of documents in electronic form.”

The next step in the process will be the implementation of an electronic filing system that completely eliminates the need for the filing and service of paper documents. The acronym used by the federal courts for the new system is CM/ECF, which stands for Case Management/Electronic Case Files.

Whether at the trial court or appellate court level, the general concept is the same. Attorneys register to be part of the system and are then allowed to file and serve pleadings via the Internet with no hard copies ever trading hands. Rather than sending a paper motion or brief to a court clerk who then makes an entry on the docket system, the attorney actually creates the docket entry, attaches the court filing to it, and hits the “send” button. The document is filed, the docket is updated and parties are automatically notified electronically that a filing has occurred. The document can be accessed by anyone immediately.

Among the benefits of CM/ECF to attorneys, clients and courts are:

• 24-hour, 7-day-per-week access to file, view, or print documents;
• Automatic email notification of case activity;
• Documents can be filed and accessed from anywhere in the world where Internet access is available;
• Immediate creation of docket entries;
• Immediate access to updated docket sheets and to the documents themselves;
• Potential elimination of paper files that can be misplaced or lost;
• Savings in copying, courier and noticing costs;
• The ability to store and search documents electronically.