Judges, litigators and court officials in the Southern District are looking forward to a rule change in September that will allow attorneys to file letters directly to the court's electronic case filing (ECF) system.
Beginning Sept. 3, direct filing is expected to increase efficiency, transparency and provide a complete record for judges receiving transferred cases or reviewing decisions on appeal.
"Electronic case filing rules have long prohibited the filing of any letter on ECF, with some small exceptions," said Judge Jesse Furman (See Profile), who worked on the subcommittee that drafted the rule change along with Clerk of Court Ruby Krajick and Magistrate Judge Andrew Peck (See Profile).
"Plenty of litigation goes on in this district by letter, but unless the judge dockets it, there can be activity in a case that doesn't appear on the docket," said Furman.
The amended rule is Local Civil Rule 5.2. Subject to an individual judge's practice, the amendment states that "letter-motions permitted by Local Civil Rule 7.1(d) and letters addressed to the Court (but not letters between the parties) may be filed via ECF."
The rule requires attorneys to read everything in the filing and not rely on a heading. For example, if the heading states only "Settlement Conference, Oct. 1" but the actual text of the judge's order requires that the clients be present, the client must attend the conference.
While the change affects both the Southern and Eastern districts, the Eastern District has long allowed letters to be filed directly.
Furman said there was some debate among the Southern District's board of judges, "but less than I expected. There was a recognition that the time had come, that the arguments in favor outweighed arguments against."
Judge Paul Crotty (See Profile) said the only delay in moving forward with the direct docketing of letters was a technical one, given the volume of litigation in the district.
"I think it's a good idea, when we take action based on a document that a party has submitted, it ought to be part of the public record," Crotty said. "I think this one enjoys a great deal of support."
There was some worry that allowing letter filing would cluttering the docket with entries on routine matters.
"The potential on the down side is that the record could get burdened with a lot of unnecessary documentary information," said Celeste Koeleveld, executive assistant corporation counsel for public safety at New York City's Law Department. "There can be too much information and it may not be necessary to follow all those arguments when you just want to get to the heart of the matter."
But Koeleveld said the change on the whole will be useful, both for the convenience of attorneys and the completeness of the record.
Another concern was that confidential information, such as settlement talks or personal health information about parties or attorneys, would make its way into the public domain. The committee notes that lawyers should hesitate before sending to ECF a document with sensitive information.
"There was sort of a dual-edged concern," Peck said. "One, that people would try and use it for substantive motions that really need to be done as a full blown motion." Conversely, he said, the court is one of the few where pre-motion conferences are held before a party can make a full-blown discovery motion.
"We resolve these things at conference and it saves a lot of time and costs the clients less. There was some concern [with ECF letter filing] that people might get more formal and that's contrary to what we're trying to do," said Peck.
On the plus side, Furman said the direct docketing saves time in both chambers and in the clerk's office and provides transparency.
"It makes a whole lot of sense not just from an efficiency standpoint, but in terms of public access and press access," Furman said. "Hurricane Sandy pointed to the need for continuity of operations— judges receive reassigned cases and everything in the case should be available for viewing."
The general rule of thumb had been that judges would docket letters if they were "substantive" in nature, such as anything that involves motion practice.
Traditionally, judges maintain "chambers files" that include correspondence, routine exchanges between the parties and chambers, and letters containing confidential information. Peck said individual practices varied widely.
"Some judges who were bigger on focusing on public access and press access filed virtually every letter they got, generally some of the newer judges," Peck said. "Some of the older judges filed every letter they endorsed but otherwise kept a copy of it in their chambers, and if lawyers needed it for appeal they got it from chambers and requested it be docketed or had it stipulated as part of the appeal."
Now, judges receive an email when a letter has been filed and they get to see the application immediately. A small gavel icon appears next to filings requiring action.
This is an improvement over the traditional procedure whereby a clerk collects letters or faxes requiring a judge's endorsement or merit docketing, and scans them before forwarding to the clerk's office for entry on ECF.
Positive Public Comment
Court officials said there was intense demand for the new procedures. Krajick said the response from the bar during the public comment period has been "excellent."
"Whenever I would go to an event, it wouldn't matter what the topic was or what was happening, the first question attorneys would ask me was, 'When are we going to be able to file letters?'" Krajick said. "This really is an important issue to the bar."
Furman said support for the change was buoyed by the experience in the Eastern District, which was one of four districts nationwide that conducted pilot projects when ECF was being tested in 1997. The district has allowed direct filing of letters onto the docket from the outset.
"It's important because you have a complete record of the case," said Eastern District Chief Judge Carol Amon (See Profile). "It's a convenience for the attorneys because they can see everything. A lot of letters deal with matters that they really need to know about."
Eastern District Clerk of Court Douglas Palmer said there are exceptions carved out for direct filing such as criminal cases concerning cooperators or fugitives, or Social Security and immigration matters.
Furman said that in 2012 some 15,000 letters were docketed in the Eastern District, but in the Southern District, which has 62 judges and magistrate judges compared to 43 in the Eastern District, only 1,500 endorsed letters and just over 6,000 letters were docketed.
The new rules, under which a lawyer "may" file directly to the docket, leaves room for letters judges feel are not appropriate to be docketed, but the rules do not allow judges to opt out.
Furman, whose last job before taking the bench in February 2012 was deputy chief appellate attorney in the Southern District U.S. Attorney's Office, said preserving a full record for appeal is critical.
"There's a lot of letter writing in criminal cases and it was not infrequent where there would be a letter as to an issue on appeal, like a motion in limine application had to be made, and it was not on the docket,"
Catherine O'Hagan Wolfe, the Second Circuit's clerk of court, said "the filings of letters on the docket will be helpful and, as a practical matter, it's a labor saving strategy."
She added, "Quite frankly the culture of practice for lawyers has sufficiently changed where to file on ECF is easier. We at the circuit are certainly happy to see the letters go on the docket."
Randy Mastro, a litigation partner at Gibson Dunn & Crutcher, also said the change is for the better.
"I think it's a positive step because so often counsel will communicate something of importance in the case through letters and having those communications be necessarily part of the record if the case goes on appeal is desirable," he said.
Peck said judges worried that because many letters are "self-serving or negative to the other side," lawyers might say something derogatory about opposing counsel.
"But the hope was that lawyers, knowing there might be a greater audience, would think before writing and think before filing," he said.
Mastro said attorneys might tend to be more circumspect when filing directly to the docket.
"Sometimes advocacy overwhelms us, even in letters," he said. "But perhaps having them on public file will restrain some of our worst instincts."
@|Mark Hamblett can be contacted at email@example.com.