E-filing
in the Western District Court
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.
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