Electronic case management and filing by lawyers is increasingly standard practice in both federal and state courts. In the federal courts, the electronic case management and filing system, known as CM/ECF, began in the bankruptcy courts in 2001 and progressed to the district courts in 2002 and to the courts of appeals in 2004.[FOOTNOTE 1] The shift in the New York federal courts is almost complete. Although there is federal regulation governing CM/ECF filings, like much federal practice, local rules may differ as to details.[FOOTNOTE 2]

For example, the Southern District of New York’s Web site contains Electronic Case Filing Rules and Instructions to assist attorneys.[FOOTNOTE 3] To access the system, attorneys must register in advance to obtain a user ID and password.

The Southern District system requirements are a personal computer, an Internet connection, a browser that has been certified for use with CM/ECF (Netscape Navigator, versions 7.x and greater, or Internet Explorer, version 6.0 and greater, or Adobe Acrobat, 6.0 or higher) and a scanner for imaging documents that do not exist in electronic format.[FOOTNOTE 4]

In contrast, the Western District warns on its homepage that because Netscape Navigator is no longer being technically supported by AOL, it may have greater security risks, and therefore CM/ECF users should download the most recent version of Internet Explorer or FireFox for access to that court.[FOOTNOTE 5]

There are numerous benefits, of course, to filing documents electronically. For example, parties have 24-hour access to the system, can view and file documents at any time of day, receive automatic e-mail notice of case activity and immediately download or print updated docket sheets and documents. There also can be significant savings in messenger and service fees, as well as copying costs — not to mention the savings to the environment resulting from the use of less paper.

Undoubtedly many harried practitioners have also been saved from aggravation and worry by the fact that filing may now be accomplished 24/7, thereby eliminating the rush to file papers within the court’s hours of operation.

PROCEDURES

Each federal court Web site contains information, statutory guidance and local rules relating to CM/ECF that must be reviewed to establish procedures and specifications applicable to each case.

For example, pursuant to the Southern District’s ECF rules,[FOOTNOTE 6] filing and service of the initial papers in a civil case, including the complaint, the issuance of the summons and the proof of service of the summons and complaint, as well as service of non-party subpoenas, is to be accomplished in the traditional manner on paper in accordance with the Federal Rules of Civil Procedure and applicable local rules governing service, rather than electronically.[FOOTNOTE 7] Conversely, the Northern District specifically permits the initiation of civil litigation through the filing and payment of the required fee through CM/ECF.[FOOTNOTE 8]

Regardless of how commenced, however, it is essential that the initial pleading (e.g., complaint, petition, etc.) be served in a traditional manner adequate to obtain jurisdiction over the responding party. Thereafter, the parties must promptly provide the clerk with electronic copies of all documents previously provided in paper form.

Most subsequent documents, such as motions, memoranda of law, or other pleadings and documents required to be filed with the court, must be filed electronically, except as provided in the CM/ECF rules or as ordered by the court.[FOOTNOTE 9]

When a document is filed, a Notice of Electronic Filing is sent by the court to any CM/ECF registered counsel that has provided e-mail information in connection with an appearance in the matter (filing user). The notice contains the official time and date the filing was deemed completed and usually contains a link permitting one free download of the filed document.

Except when traditional service is required for the purpose of obtaining jurisdiction, transmission of the clerk’s Notice of Electronic Filing constitutes service of such document upon any filing user in a case. However, it remains the duty of the filing attorney to regularly review the docket sheet of the case and to serve hard copies of electronically filed documents on any parties who are not filing users.

The user login and password required to submit documents to the CM/ECF system serve as the filing user signature on all electronic documents filed with the court. They also serve as a signature for purposes of the Federal Rules of Civil Procedure, including Rule 11, the Federal Rules of Criminal Procedure, the applicable local rules, and for any other purpose for which a signature is required in connection with proceedings before the court.

When a document has been filed electronically, the official record is the electronic recording of the document as stored by the court, and the filing party is bound by the document as filed.

PRIVACY AND SECURITY ISSUES

The inexorable move to CM/ECF is not without peril. Attorneys must be aware of issues relating to online security and the selection of the information to include in papers that will be electronically accessible, given that filed documents can be accessed by members of the public and the media through systems such as the Public Access to Court Electronic Records system.

Moreover, the willingness with which courts have welcomed CM/ECF filings and the expansion of Internet access is leading to other issues that would never even have been considered only a few years ago. For instance, there are webcasts of various proceedings before the New York Court of Appeals.[FOOTNOTE 10] In addition, courts are being asked to consider whether online streaming of hearings or trials should be permitted — and at least one court recently ruled in favor of that request.[FOOTNOTE 11]

There are well-established competing policies that on the one hand favor public access to the courts and individual privacy interests on the other. A three-part test was recently enunciated in United States v. Sattar by Southern District Judge John G. Koeltl to assess whether information should be publicly filed based on the public’s qualified right of access to judicial proceedings or documents under the common law and the First Amendment.[FOOTNOTE 12]

The court concluded that whereas the first and second elements concerning the high weight that was to be accorded to the presumption of access to what were concededly “judicial documents” favored public disclosure, the defendant’s expectation of privacy in her communications with her lawyer or a psychiatric report discussing her family outweighed the public’s interest that might “simply cater to the morbid craving for that which is sensational or impure.”[FOOTNOTE 13]

In reaching his conclusion, Judge Koeltl stated that the standards enumerated to protect privacy in the “Guidance for Implementation of the Judicial Conference Policy on Privacy and Public Access to Electronic Criminal Case Files,” although “drafted to deal with the privacy concerns created by remote electronic access to criminal records … set out cautions that apply to the public filing of any records in a criminal case.”[FOOTNOTE 14] The same considerations should likewise apply in civil litigation.

PRIVACY CONCERNS

Documents filed electronically on the CM/ECF system are more widely available and easier to access than ever before. To protect people’s privacy and reduce the threat of identity theft, the CM/ECF rules provide that attorneys should be cautious when filing sensitive information. Indeed, the rules provide that it is the sole responsibility of counsel and the parties to be sure that all documents comply with the court rules requiring redaction of personal identifiers — neither the judge nor the clerk of the court will review documents for compliance with this requirement.

Amendments to Federal Rule of Civil Procedure 5.2 and Criminal Procedure 49.1 require that personal identifiable information be redacted from documents filed with the court. Indeed, because of the presumption of public access, attorneys should not include sensitive information in any document filed with the court unless such inclusion is necessary and relevant to the case.

These requirements were finalized in the E-Government Act of 2002, which requires that a party wishing to file a document containing the personal data identifiers must file a redacted version in the public file in the form set forth below:

• Social Security numbers: include only the last four digits;

• names of minor children: include only the initials;

• dates of birth: include only the year;

• financial account numbers: include only the last four digits;

• home addresses: include only the city and state.

There is other sensitive information that attorneys should consider redacting from documents filed electronically even though not specifically set forth in the rules. This information includes:

• personal identifying numbers, such as a driver’s license number;

• medical records, treatment and diagnosis;

• employment history;

• individual financial information;

• proprietary or trade secret information;

• information regarding an individual’s cooperation with the government.[FOOTNOTE 15]

Best practice dictates that personal identifiable or sensitive information only be included for filing when it is essential to do so. Each court has its own procedures as to when and how to file under seal, how to replace personal identifiable information with redacted identifiers and when a reference list as to the redacted identifiable must be supplied.

Documents ordered to be placed under seal may not be filed electronically as electronically filed document are generally available to the public without limitation. However, the motion to file documents under seal should generally be filed electronically, in redacted form if necessary, unless stating the reason for the need for the seal in the motion would, itself, destroy the confidentiality that the sealing order is intended to protect.

The court’s sealing order, however, generally needs to be filed electronically. A paper copy of the sealing order must also generally be attached to the outside of the envelope containing the documents under seal and be delivered to the clerk’s office.

N.Y. STATE FILING SYSTEM

The New York State Court Electronic Filing program (NYSCEF) is of more recent vintage and less well developed than the federal system. NYSCEF permits the filing of legal papers by electronic means with the county and court clerks in only certain kinds of cases in designated venues, as well as the electronic service of papers in those cases.

Presently, NYSCEF’s availability is limited to all matters commenced in the Broome and Erie County Supreme Court and the Court of Claims and tort, commercial and tax certiorari actions commenced in the Supreme Court located in 15 other counties.[FOOTNOTE 16] Thus, the majority of the state courts located throughout the 62 counties are not compatible with online filing.

In those places where NYSCEF is allowed, the cases may be incorporated in one of three ways: a case may be commenced by filing and paying the fee on the NYSCEF system; it may be commenced through traditional paper filing and designated by the plaintiff as an NYSCEF case; or a pending, traditional case may be converted to an NYSCEF matters. Notably, NYSCEF differs from the federal CM/ECF in that it is a “consensual system” rather than mandatory, so that consent to proceed with the NYSCEF must be filed online in connection with every case.[FOOTNOTE 17]

It is anticipated that the use of NYSCEF will continue to expand both geographically and as to the types of cases that will be handled, especially since the same benefits apply to state court filings as in the federal courts. The same risks likewise exist as well.

CONCLUSION

The ability to file documents electronically is a boon to lawyers, and a means of cutting costs for clients. And it seems clear that the Internet will be used in the future in a number of different ways in litigation matters.

But every technological advance engenders its own new challenges. Of utmost importance, attorneys must take reasonable steps to protect personally identifiable and sensitive information so that privacy may be maintained and identification theft prevented.

Attorneys should also take extra care to consult local rules of practice, including periodic updates, so they can comply with the ever-changing electronic requirements of legal practice in the 21st century.

Shari Claire Lewis, a partner at Rivkin Radler, specializes in litigation in the areas of Internet, domain name and computer law and professional liability.

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FN1 http://www.uscourts.gov/cmecf/cmecf.html.

FN2 See, e.g., Second Circuit Court of Appeals, Interim Local Rule 25.1 at http://www.ca2.uscourts.gov/rules.htm; Eastern District of New York at https://ecf.nyed.uscourts.gov/cgi-bin/login.pl; Northern District of New York at http://www.nynd.uscourts.gov/cmecf/; Southern District of New York at https://ecf.nysd.uscourts.gov/cgi-bin/login.pl; and Western District of New York at https://ecf.nywd.uscourts.gov/cgi-bin/login.pl. In most, but not all districts, pro se, Social Security and habeas corpus cases are permitted to rely on paper filing.

FN3 See http://www1.nysd.uscourts.gov/ecf/ECF_rules_SDNY_Aug08.pdf.

FN4 See http://www1.nysd.uscourts.gov/ecf_requirements.php.

FN5 http://www.nywd.uscourts.gov/mambo/.

FN6 See http://www1.nysd.uscourts.gov/ecf/ECF_rules_SDNY_Aug08.pdf.

FN7 In a criminal case, the indictment or information also is to be filed and given to the defendant in the traditional manner on paper in accordance with the Federal Rules of Criminal Procedure and applicable local rules rather than electronically; in addition, service of subpoenas shall be made in the traditional manner on paper in accordance with the Federal Rules of Criminal Procedure and applicable local rules.

FN8 See http://www.nynd.uscourts.gov/cmecf/.

FN9 The various local rules that define the types of documents that should not be electronically filed using CM/ECF most commonly include items such as letters to the court, proposed stipulations to be “so ordered,” orders to show cause (with or without a temporary restraining order), motions for admission pro hac vice, sealed documents, surety bonds, bills of costs and notices of appeal. However, there is no unanimity between the courts as which documents fall outside of the CM/ECF requirement.

FN10 See http://www.nycourts.gov/ctapps/crtnews.htm.

FN11 See, e.g., Capitol Records Inc. v. Alaujan, No. 03CV11661-NG (D. Mass. Jan. 20, 2009) (audio-visual coverage of hearing permitted to be made publicly available on the Internet for non-commercial purposes).

FN12 471 F.Supp. 2d 380 (S.D.N.Y. 2006).

FN13 Id. 471 F.Supp. 2d at 387.

FN14 Id. 471 F. Supp.2d 387 fn 4; see http://www.privacy.uscourts.gov/crimimpl.htm.

FN15 The Northern District provides a link from its CM/ECF page that encourages filers to check their documents for privacy compliance. See http://www.nynd.uscourts.gov/cmecf/

FN16 See New York State Electronic Filing System User’s Manual for Supreme Court and Court of Claims, Part 1, available at https://iapps.courts.state.ny.us/fbem/mainframe.html. Albany, Essex, Livingston Monroe, Nassau, Niagara, Onondaga, Sullivan, Suffolk, Westchester and the New York City counties are the counties that presently are part of the NYSCEF system.

FN17 Id.