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