Upon Further Review

As longtime readers of this column are aware, I am an enthusiastic supporter of electronic filing on appeal. Appellate e-filing has long been mandatory for attorneys in the U.S. Court of Appeals for the Third Circuit and other federal appellate courts, but it remains optional for attorneys in the Pennsylvania state appellate courts.

In earlier columns, I explained why I think it is worthwhile for attorneys to register to participate in e-filing in Pennsylvania's state appellate courts. For example, were it not for appellate e-filing in the Pennsylvania Superior Court, I never could have obtained the Christmas Eve release from jail several years ago of a client who had been incarcerated earlier that day on a charge of civil contempt.

Now that e-filing has been in existence in both the Third Circuit and Pennsylvania's state appellate court for many years, it is not surprising that both systems have recently evolved in various ways. Within the past few months, the Third Circuit upgraded its first generation CM/ECF system to what is commonly known as next-gen ECF.

The original version of appellate e-filing in the federal appellate courts worked well when originally implemented, but over time it became technologically obsolete. That original version required that the Java plug-in be present on the user's system and available on the web browser being used to file documents. In recent years, all of the major web browsers became incompatible with Java as they attempted to make themselves more secure. The current version of Microsoft Windows allows users to access a legacy version of Internet Explorer (the predecessor to the current Windows web browser, known as Microsoft Edge) that continues to be compatible with Java and thus could be used to upload documents to legacy first-gen CM/ECF systems.

Of course, many appellate attorneys did not realize that their up-to-date web browsers would no longer allow them to e-file documents in a federal appellate court that continued to use the original version of e-filing until the deadline for filing had arrived and they were attempting to accomplish their filing. Discovering the work-around described above and figuring out how to implement it are not the sorts of things that an appellate lawyer or his assistants are enthusiastic to learn when the deadline for filing is near and filing cannot be accomplished as easily as once had been the case.

Happily, the Third Circuit in recent months upgraded to next-gen appellate ECF, which does not require Java installed on a web browser to accomplish e-filings. Those appellate attorneys who also practice in other federal appellate courts may have experienced next-gen ECF in those other federal appellate courts that implemented it before the Third Circuit did.

For attorneys who had previously signed up for next-gen appellate ECF access in other federal appellate courts, the process for upgrading their filing privileges to the Third Circuit's own next-gen appellate ECF system is quite easy. But for those lawyers who have not previously registered for Next-Gen appellate ECF access elsewhere, the process is a bit more involved. First, the user has to register for and obtain an upgraded PACER account. And then the user can link his or her legacy Third Circuit CM/ECF filing account to the new Next-Gen ECF system.

The filing interface for the Third Circuit's next-gen ECF system is quite different from the Third Circuit's original CM/ECF system, so it may take some time for users to become familiar with the Third Circuit's new system. But, in my experience, the new system is easy to use, does not require struggling to find a browser that is Java compliant, and as an added bonus allows the filer to download and double-check the document to be filed once it is uploaded to ensure that it is the exact document that the user wishes to file—something that the Third Circuit's original e-filing system did not facilitate.

The appellate e-filing system in use by Pennsylvania's state appellate courts also has continued to evolve in various ways. The size limit per document that Pennsylvania's appellate e-filing system allows is now a whopping 500 MB, which is ten times as large as the 50 MB maximum file size per document that the Third Circuit's next-gen ECF system allows.

Recently, Pennsylvania state courts updated their public access policy to directly address electronically filed information in court records. In cases involving sensitive financial information or other information triggering important privacy interests, a party must either file two versions of a document (one accessible only to the parties and the judicial officers, and another with the sensitive information redacted that will be publicly available) or must file the confidential information separately from the publicly accessible filing.

The Pennsylvania state appellate court rules have been supplemented to require a certification of counsel attached to e-filings stating that “this filing complies with the provisions of the 'Public Access Policy of the Unified Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts' that require filing confidential information and documents differently than nonconfidential information and documents.”

One may wonder why federal appellate courts without much pushback made electronic filing mandatory for attorneys while Pennsylvania state appellate courts have refrained from making e-filing mandatory. A major reason might be that when a document is filed only in paper format in a Pennsylvania state appellate court, the appellate court will itself transform the paper filing into an electronic filing by physically scanning the paper filing into a PDF document.

But scanned documents are not as useful to appellate courts as documents that are printed as a PDF file directly from a word processing system. Generally speaking, word searches do not work very well on scanned documents, but word searches work flawlessly on PDF documents printed directly from a word processing system. Lawyers who are not taking advantage of appellate e-filing in the Pennsylvania state courts are not only relying on those courts to legibly and competently scan their filings into electronic documents, but they are also making it more difficult for appellate judges and their law clerks to take full advantage of those filings.

As explained above, the time to upgrade to the Third Circuit's new next-gen ECF system is now. One should not wait until a document is due, with all the risks that strategy entails. And for those lawyers who have resisted registering for appellate e-filing in the Pennsylvania state courts, those courts are now turning your paper filings into e-filings anyhow. Wouldn't you rather be in charge of that process by creating your own e-filings whose quality and contents you can fully control?

Howard J. Bashman operates his own appellate litigation boutique in Willow Grove and can be reached at 215-830-1458 and via email at [email protected]. You can access his appellate web log at http://howappealing.abovethelaw.com/ and via Twitter @howappealing.