Electronic Filing in the Federal Appellate Courts

Article excerpt

The growing importance of information in digital forms-forms more easily ransmitted, displayed, disseminated, and searched-obliges courts to adjust their own practices and processes without compromising obligations to preserve other values. The Tenth Circuit recently became the first federal court of appeals to move toward digital submission of court documents. The experience of the Tenth Circuit with electronic filing will allow the Administrative Office of the Courts to evaluate the utility of digital submissions for appellate practice and guide the implementation of electronic submission throughout the federal appellate system.

Technological advancements compel court systems to alter their own operations to accommodate the increased functionality of digital information. Since December 2004, the Tenth Circuit Court of Appeals has been operating under an Emergency General Order requiring motions, briefs, and petitions filed with the court to be submitted in an electronic format in addition to the paper filings required by the local and Federal Rules of Appellate Procedure. In re: Electronic Submission of Selected Documents, 411 F.3d 1159 (10th Cir. 2006). The Emergency General Order was issued initially in October 2004 and has been revised several times since then, most recently January 1, 2006. Under the General Order, timely submission of a document in electronic form allows a "Digital Submitter" (as the order refers to those filing document with the court) to submit a paper version of the document out of time, as long as it is within two business days of the date of electronic submission.

The Emergency General Order is intended to help the Administrative Office of the Courts evaluate the usefulness of electronic documents to appellate practice. Although the Tenth Circuit is the first of the U.S. Court of Appeals to participate, 89 percent of federal courts use electronic filing systems. Eighty-nine district courts and ninety-three bankruptcy courts, as well as the Court of International Trade and the Court of Federal Claims, already accept electronic submissions through the Case Management/Electronic Case Files (CM/ECF) systems (see http://www.uscourts.gov/ cmecf/cmecf_about.htm). Implementation began for bankruptcy courts on 2001, for district courts in 2002, and for the appellate courts in late 2004 with the Tenth Circuit order. Many state systems have also already implemented electronic filing.

In addition to permitting attorneys to file documents quickly and remotely through e-mail, electronic submission promises several advantages to the appellate courts. The Order requires that documents be filed in the popular Portable Document Format (PDF, or Acrobat, for the freely available reader) generated from a word-processing file, so that the document will be searchable by word or phrase and text can be selected and copied. …