E-filing in the Western District Court

by Todd G. Smith

In Sept. 12, 2001, Chief Judge Barbara B. Crabb signed an administrative order instituting electronic filing procedures for the U.S. District Court for the Western District of Wisconsin. Civil litigants now have the opportunity, effective Nov. 1, 2001, to file virtually any document in Judge Crabb's court in electronic format. However, the advantages of electronic filing will vary greatly among cases and litigants, and lawyers should consider whether electronic filing ultimately will be cost-effective or useful in a given case. This article describes the electronic filing procedures adopted by the court and identifies some of the issues law firms and litigants should consider when retaining an electronic filing service provider.

Participation is Voluntary

The court's administrative order states that the court "accepts and encourages electronic filing" in all civil cases except those assigned to Judge John C. Shabaz. In effect, this limits electronic filing procedures to civil cases before Judge Crabb. In every instance, a new case may be initiated by electronically filing a summons and complaint before a judge is assigned. However, if Judge Shabaz is assigned to the case, all subsequent pleadings must be filed in paper form.

Participation in the program is entirely voluntary, and litigants remain free to file all pleadings and correspondence in paper form. The court will not accept pleadings or papers filed electronically in any criminal case.

To participate, law firms and litigants first must contract with a commercial electronic filing service provider. These service providers serve as a conduit, transmitting documents from counsel to the court. Several companies currently provide such services. Any provider is eligible to file documents with the court after it has verified with the court that its service is compatible with the court's system. The court does not recommend or sponsor any particular service provider. Electronic filing service providers charge litigants for their services, and while fees have the potential to vary greatly, quotes currently average $15 for each filing.

How It Works

To file a pleading or other document electronically, a lawyer first must draft the document using a standard word processing application. The document then must be converted to portable document (PDF) format using software generally available from Adobe Systems Inc.1 The lawyer then logs on to his or her approved service provider's Web site and answers a series of questions about the type of document - or documents - to be filed. The lawyer must specify the court in which the document is to be filed, the type of document to be filed, and the identity of the litigant filing the document. If the filing is a summons and complaint initiating a new case, the lawyer must complete a civil cover sheet regarding the litigation.

The lawyer then instructs the service provider's Web site where to find the document to be filed on the lawyer's computer or network. The service provider uploads the document, converts it to legal XML format (eXtensible Markup Language, which makes specific content searchable and usable for many different applications), and transmits it to the court. The lawyer is provided with instantaneous confirmation that the document has been transmitted. After court personnel have reviewed the filing, the court notifies the service provider whether the filing was accepted. The service provider then sends an email message to the lawyer instructing him or her to check the provider's Web site for detailed information about whether the court accepted or rejected the filing. The lawyer can then print out proof of acceptable filing to store in the case file.

Electronic filing service providers typically charge one flat fee per filing. Generally, the fee is determined without regard to the number of pages or exhibits included in a document. However, it is important to confirm with the service provider that its software permits multiple documents to be included in one "filing" with the court. For example, the court's standard summary judgment procedures require a litigant seeking summary judgment to file a motion, supporting brief, and proposed findings of fact and conclusions of law. Ordinarily, a summary judgment motion also must be supported by affidavits and other evidentiary material. A litigant should confirm with its service provider that all of these documents may be transmitted to the court in one "filing," and that only one fee will be charged. The potential cost of even routine motions and filings could become burdensome if the service provider charges a separate fee for each document.

Billing methods may vary by service provider. Some providers require authorization for automatic withdrawal from the customer's business account. Other providers may accept payment by credit card or may agree to some other billing arrangement. Some service providers allow their customers to track filings and charges using the law firm's internal billing number, simplifying billing issues for the firm. A lawyer considering retaining a service provider should inquire about payment methods, terms, and conditions.

Other Procedural Considerations

Electronic filing presents a series of related procedural issues. For example, the system does not currently allow electronically filed documents to be served electronically upon opposing counsel. Therefore, a lawyer filing pleadings with the court electronically still must print and serve paper copies of filed pleadings pursuant to Rule 5 of the Federal Rules of Civil Procedure. Of course, litigants can agree to serve each other with pleadings and papers electronically, via email or otherwise, but the court's electronic filing system does not mandate or endorse such agreements.

In addition, sealed documents must be filed in paper format. Some service providers' software may support digital signatures, although the court does not require signatures on electronically filed documents. Instead, the administrative order states that the court will treat every document filed electronically as if it were signed by counsel, presumably with all the considerations presented by Rule 11 of the Federal Rules of Civil Procedure. Any document that requires a signature for its validity (such as an affidavit) may be filed electronically, but counsel must retain a signed original for at least two years after final resolution of the case.

Documents with exhibits create another "electronic" issue. A litigant who wishes to attach several exhibits to an affidavit must scan those exhibits into the document file before converting the file to PDF format for uploading to the service provider's Web site. As any lawyer can attest, the exhibits attached to an affidavit can be numerous, and scanning those exhibits into a word processing document can be burdensome and time-consuming.

Finally, documents will be considered filed on the date and at the time that the document is received at the court. In practice, this means the court will accept filings 24 hours a day. Accordingly, the time a document must be filed on a given day is extended from 4:30 p.m. (the clerk's normal close of office hours) to 11:59 p.m.

Issues for Litigants to Consider

A lawyer considering electronic filing necessarily will consider several issues. First, the lawyer should select an electronic filing service provider carefully. The lawyer should ensure that the provider has verified with the court that its service is compatible with the court's system. It also may be advisable to tour the provider's Web site to determine the sophistication of its software and ease of use.

The primary issue raised by electronic filing is cost. Lawyers should carefully compare each service provider's pricing terms. Lawyers should determine whether the provider's software permits multiple documents to be transmitted as one "filing" and whether only one fee will be charged. In addition, attorneys should determine if the provider charges a "membership" or other flat fee for its services in addition to the fees for an individual filing.

A primary motivation for filing electronically is to save the cost of copying and mailing pleadings. However, it is not clear that this system will save money for clients. As noted, absent an agreement with opposing counsel permitting electronic service, litigants still will have to print and mail paper copies of pleadings to the other parties in the suit. Thus, the only paper and postage saved is that associated with the court's copies. Furthermore, law firms with a downtown Madison presence will see even less cost savings, as documents typically are hand-delivered to the court.

Law firms with a significant amount of business before the court could consider obtaining the software and expertise needed to convert their own pleadings to legal XML format. Taking the conversion and transmittal procedures in house could result in further cost savings for these firms.2

Finally, it remains unclear how the court intends to make electronically filed documents available to the public, including the news media, for inspection. Documents filed electronically with the court are subject to the same open records considerations as are documents filed in paper format.

Conclusion

By signing the administrative order authorizing electronic filing, the court has instituted procedures that allow litigants greater flexibility in filing pleadings and documents with the court, which may create cost savings associated with decreased copying and postage. However, law firms and litigants considering whether to file pleadings and other documents electronically should carefully choose an electronic filing service provider and consider whether the benefits outweigh the fees charged by such providers.

Endnotes

1 See www.adobe.com.

2 For more information on legal XML, see www.legalxml.org.

Wisconsin Lawyer