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.