Litigation Support Tip of the Night

May 1, 2019

Parties that appear on the official email notice list for cases filed in the federal district courts, get one free look at PDFs of filings by any party on PACER.   The standard PACER charge is 10 cents per page with a maximum of $3.00 for filings other than transcripts.   The District Court for the Northern District of Ohio has a posting on its site which describes how a party can ensure that it gets its one free look, and bypass the PACER login.  

1. The filing must be accessed by a registered ECF user through an email generated by the ECF system.

2. The filing must be accessed within 15 days after it is filed with the court.

3. If the user receives a blank screen, it's recommended that the Internet Preferences be changed in Adobe Reader, unchecking 'Display PDF in browser' and 'Allow fast web view'. 

4. In the Utilities section for an ECF account, under 'Maintain Your ECF Account' you can enter a secondary email, if your firm's network blocks access to the free look. 

September 22, 2018

A bill currently before the House of Representatives, Electronic Court Records Reform Act of 2018, H.R. 6714, 115th Cong. (2018), proposes that the Case Management / Electronic Case Files system for the federal courts be consolidated, and states be given the option of participating in the new system. 

The bill introduced by Representative Doug Collins of Georgia would make filings on the Public Access to Court Electronic Records system available to the public free of charge at least five days after they were filed.    The bill also requires that all documents be text searchable and 'machine readable'.    The provision for machine readable documents apparently contemplates court filings being in the XML, HTML, or JSON formats which a browser or software can analyze and prepare tables of content or outlines from. 

The bill would also allow external web sites to link directly to PACER filings.   Would this allow for links to PACER filings to be added more easily than it currently possible with LinkBuilder?   See the Tip of the Night for December 1, 2016.  

Audio and visual filing are also to be posted to the new system, and "]t]he system shall provide search functions for public use".   Hopefully in the future we'll have the option to run Boolean searches across all documents filed with the federal courts.  

September 19, 2018

This year, the new Electronic Filing Rules adopted by the Departments of the New York State Supreme Court Appellate Divisions became effective.    E-filing for the Appellate Division will take place using the New York State Courts Electronic Filing System, also used by the Supreme Court.  See: www.nycourts.gov/efile.   (The Court of Appeals uses the Court-PASS system.)    Appendix A to the new rules lists technical requirements for the filings:

1. Text searchable PDF/A format.

2. Bookmarks linking sections listed on the table of contents to the corresponding pages. 

3. Motion papers must be combined in a single PDF with bookmarks linking to each successive document.  

4. Each volume of an appellate appendix must be filed separately. 

5. No single PDF can be more than 100 MB.

In addition the rules specify that, "The 'initial view' of a PDF shall be the Bookmarks Panel and Page."   This is a clear reference to a setting in Adobe Acrobat which can be found under File . . . Properties, and is not present in Adobe Reader.   Click on the 'Initial View' tab and select 'Bookmarks and Panel and Page' in the navigation tab drop down menu. 

June 12, 2018

Filings on PACER are limited by the file size of PDFs, and sometimes by the number of pages.   The tricky thing is the limit on the number of bytes for a single upload differs between the federal district, bankruptcy, and circuit courts.  If you've got a single PDF which is more than 10.1 MBs that you're filing with the United States District Court for the Southern District of New York, you'll need to divide it into separate PDFs. 

The Administrative Office of the United States Courts provides an index listing the maximum file size for each court, entitled, "CM/ECF PDF FILE SIZE LIMITS".   The allowable limits range from a minuscule 3 MB for the United States Bankruptcy Court for the Northern District of California and the Northern Mariana Islands, to 200 MB for the Bankruptcy Courts for the Western District of Pennsylvania; the Eastern District of Texas; and the Eastern District of Wisconsin.   A limit of an astounding 39933288 KB (39 GB) is listed for the Third Circuit, but this is an error.  The actual limit is 50 MB.   The median file size limit for all federal courts is 30.5 MB. 

June 9, 2018

Many courts have rules restricting the links that can be included in electronic court filings.   The United States District Court for the District of Nebraska has posted the Attorney Guide to Hyperlinking in the Federal Courts to its site.  The first section of the guide states that the only permissible hyperlinks in court filings are:

1. Links to different sections of the filing itself.  E.g., from the Table of Contents to section headings. 

2. Links to prior ECF filings. 

3. Links to exhibits filed with a brief. 

4. Links to cases and statutes. 

5. Links to local rules.

The guide specifically states that, "A hyperlink to a public website where evidence can be found is not a substitute for filing evidence in support of a motion."     

The District of Minnesota's Guide to Using Cross-Document Hyperlinks in CM/ECF notes that documents can be filed with links to ECF filings from the same case or other cases on the CM/ECF system, and contains instructions on how to create such links. 

In 2013, Michael Dunbar prepared a compilation of federal court rules on hyperlinks in court filings, Hyperlinking: Electronic Submissions in the Federal Courts for the District of Kansas.   In this comprehensive, but slightly out of date guide, we learn that the Local Appellate Rules for the Third Circuit specify that, ". . . the hyperlink and the site to which it refers are not considered part of the brief. Thus, they will not be considered part of the court’s record." 

The Electronic Case Filing Administrative Policies and Procedures Manual for the District of Arizona states that, "A hyperlink reference is extraneous to any filed document and is not part of the court's record. A link to any document that does not reside on the ECF system for the District of Arizona is prohibited."

Attorneys wishing to be meticulous about their court filings may want to employ the "Remove All Links" utility in Adobe Acrobat, in the Document Processing section of Tools.  

This will remove in any links inserted with Adobe Acrobat.   However when I attempted to use it today on exhibits that contained email addresses and web addresses (listed in emails converted to PDF format) it did not remove those links.   Clearly the federal courts want to guard against attorneys submitting briefs which contain links to online documentation  that can function as supporting exhibits without being formally submitted as such.  Taking the time to actually remove links of any kind may be an unnecessarily laborious process. 

October 17, 2017

Local Rule 25.1 on Case Management and Electronic Case Filing for the Court of Appeals for the Second Circuit states in subsection 3 that, "A PDF must be text-searchable. A PDF need not include a manual signature.".

The Second Circuit is not kidding either.   If you fail to make all of your exhibits to a declaration text searchable, expect to receive a Notice of Defective Filing the next morning,  with this instruction:

"Please cure the defect(s) and resubmit the document, with the required copies if necessary, no later than [THE SAME DAY OF THE FILING!].  The resubmitted documents, if compliant with FRAP and the Local Rules, will be deemed timely filed.   Failure to cure the defect(s) by the date set forth above will result in the document being stricken. An appellant's failure to cure a defective filing may result in the dismissal of the appeal."  See the example posted here.  

See the Tip of the Night for May 18, 2015, for an automated way to find which PDFs in a large set are not text searchable. 
 

March 9, 2017

On March 7, 2017, the U.S. District Court for the Southern District of New York updated its Electronic Case Filing Rules & Instructions.    The rules specify that any exhibits to a filing, must be filed as an attachment.    Rule 13.3 specifically prohibits inserting exhibits behind the main filing in the same PDF.   It also specifies a format of the exhibit names:

NOTICE OF REMOVAL (Attachments: #1 State Court Complaint, #2 State Court Summons)

This should really save all of us who have spent hours parsing through PACER docket entries and filings a lot of trouble.   If exhibits are listed in a consistent format on PACER dockets it will be easier (and cheaper to search for documents).   I have spent a lot of time hunting through summary judgment declaration exhibits for particular expert reports and deposition transcripts.   With the rules now stating that, "[e]ach attachment must be clearly titled in the ECF entry so the subject of the exhibit is clear." it should be easy to find what you're looking for.   

The new rule will also make it easier to parse through multiple files, easily adding an exhibit number and description different columns on a spreadsheet. 

January 15, 2017

Suffolk County in New York State (the easternmost county on Long Island) recently issued a new protocol for electronic filing which can be found here.    Electronic filing is mandatory in the county.   In order to file, attorneys have to log into the New York State Courts Electronic Filing System here.     Parties not represented by an attorney are exempted.   The protocol makes provisions for cases commenced in hard copy form to be converted to electronic filing.     The protocol specifically states that the County Clerk may reject filings submitted in hard copy which are not subject to any exemptions.    Documents are not deemed officially filed until the filing fee has been paid.   

Filers are made responsible for the disclosure of any personal confidential information.     The NYSCEF has a special 'Refile This Document' link for filings which are being re-submitted.   The county clerk is specifically barred from printing working copies of electronically filed documents.  Exhibits have to be uploaded as separate PDFs.     Discovery materials cannot be filed electronically.  When filing documents for a judgment, the proposed judgment, Bill of Costs, Judgment Creditor Affidavit, Stipulation of Discontinuance, General Release and Proof of Tender must be submitted as separate PDFs.  

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Sean O'Shea has more than 15 years of experience in the litigation support field with major law firms in New York and San Francisco.   He is an ACEDS Certified eDiscovery Specialist and a Relativity Certified Administrator.

The views expressed in this blog are those of the owner and do not reflect the views or opinions of the owner’s employer.

 

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This policy is subject to change at any time.