NATIONAL VETERANS LEGAL SERVICES PROGRAM et al v. UNITED STATES OF AMERICA

Filing 52

MOTION for Summary Judgment as to Liability by ALLIANCE FOR JUSTICE, NATIONAL CONSUMER LAW CENTER, NATIONAL VETERANS LEGAL SERVICES PROGRAM (Attachments: #1 Declaration Declaration of Jonathan Taylor, #2 Exhibit Exhibit A, #3 Exhibit Exhibit B, #4 Exhibit Exhibit C, #5 Exhibit Exhibit D, #6 Exhibit Exhibit E, #7 Exhibit Exhibit F, #8 Exhibit Exhibit G, #9 Exhibit Exhibit H, #10 Exhibit Exhibit I, #11 Exhibit Exhibit J, #12 Exhibit Exhibit K, #13 Exhibit Exhibit L, #14 Exhibit Exhibit M, #15 Declaration Declaration of Thomas Lee and Michael Lissner, #16 Statement of Facts Plaintiffs' Statement of Undisputed Material Facts)(Gupta, Deepak)

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EXHIBIT B

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ELECTRONIC CASE FILES
IN THE FEDERAL COURTS:
A Preliminary Examination
of Goals, Issues, and
the Road Ahead

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ELECTRONIC CASE FILES
IN THE FEDERAL COURTS:
A Preliminary Examination
of Goals, Issues, and
the Road Ahead

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Table of Contents
Executive Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

v

I.

Overview of the ECF Initiative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1

A. Why Electronic Case Files? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2

B. Approaches to ECF: Ongoing Experiments . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. Electronic Filing
2. Imaging
3. Chambers-Based Experiments

3

C. The Road From Here: An Action Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. Guiding ECF Development
2. Making Progress

6

II. Electronic Case Files: A Vision of Future Possibilities . . . . . . . . . . . . . . . . . . . . . . .

10

III. The Electronic Case File: Working Assumptions . . . . . . . . . . . . . . . . . . . . . . . . . . .

15

A. Potential Benefits of ECF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

15

B. Functional Characteristics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

17

IV. Topics for Further Study . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

23

A. Authentication, Security, and Preservation of the Litigation Record . . . . . . . . .
1. Document Authentication
2. Security
3. Preservation of the Record

23

B. Litigation Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. Service of Process and Service of Pleadings
2. Notice to the Parties of Court Opinions, Orders and Other Actions
3. Determining Timeliness of Electronic Filings and Verifying Receipt
by the Court
4. Documents Received in an Incompatible Format

28

This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

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C. Access to Electronic Case Files . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. Defining “Access” for the ECF Environment
2. Need for Fair Access by All Users
3. Need to Evaluate “Access” in Relation to Potential ECF Vendors

31

D. Financial Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. Fees Issues
2. Methods of Collecting Fees
3. Funding the Transition to ECF

34

E. Judiciary Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. Need for Training
2. Effects on Court Staff
3. Staffing Requirements
4. Potential Effects on Work Measurement Formulas
5. Facilities Issues

36

F. System Integration and Telecommunications . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. System Integration
2. Links
3. DCN and Internet

38

G. Transition to ECF: Acceptance by the Courts, the Bar and the Public . . . . . . .
1. Judges
2. Court Staff
3. Bar/Litigants and Public

41

H. Special Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1 Sharing of Case File Information Among Multiple Users
2 Access to Related Information Outside the Court’s Case File
3 Availability of Files for Geographically Dispersed Judges and Staff
4 Special or Unusual Documents, Proceedings, and Users

43

V. Interim Technical Standards and Guidelines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

44

VI. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

45

Electronic Case Files Study Project Participants

This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

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Appendices (available separately upon request):
A. Administrative Office Director’s Memorandum on ECF Issues
B. Proposed Interim Technical Standards
C. Report on Prototype and Operational Electronic Filing Systems
D. Elements of Federal Court Case Files
1. Appellate
a. Courts of Appeals
b. Bankruptcy Appellate Panels
2. District Court (Civil)
3. District Court (Criminal)
4. Bankruptcy
5. Probation and Pretrial Services Offices
a. Probation
b. Pretrial Services
E. Current Authority for Imposing Fees
F.

Evaluating Benefits and Costs

This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

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Executive Summary
Background
The federal courts can reduce their reliance on paper records by using new technology to
file, maintain, and retrieve case file information in “digitized” form. The transition towards electronic case files (“ECF”) in the federal courts is underway. Some courts already are working to
identify and acquire appropriate technology. New federal rules facilitate a court’s decision to accept electronic filings. And the Judicial Conference’s Committee on Automation and Technology
has designated ECF as a top priority initiative and has set a goal to proceed with ECF within the
next three to five years.
The benefits of ECF—for the judiciary, for lawyers, and for the public—seem profound
and irresistible. The key questions are: How soon? How will it work? At what cost? Producing
what benefits? This paper is intended to stimulate discussion, both inside and outside the judicial
branch, and suggest possible approaches for resolving those basic questions as well as related policy issues that need to be addressed. It recommends a preliminary “action plan” for implementing
ECF, describes a hypothetical ECF system, anticipates its potential benefits and basic functional
characteristics, identifies the principal issues to be addressed as courts move towards ECF, and
discusses the proposed interim Technical Standards for ECF. The ideas expressed will provide a
conceptual framework for the Judicial Conference and its committees as they consider the policy
implications of ECF for the federal courts and determine the manner in which the initiative should
be pursued.
Key Benefits, Costs and Capabilities
It is anticipated that ECF will produce an impressive range of benefits to the courts and the
people who use the courts, including—
improved judge, court staff, and public access to case file information
cost savings and efficiencies through increased productivity, and more effective utilization of staff, space, and other resources
reduced physical handling, maintenance, and copying of file documents
improved docketing, scheduling, case management, and statistical reporting; and
enhanced accuracy and efficiency in record maintenance.

This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

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A Preliminary Examination of Goals, Issues, and the Road Ahead

The primary costs of an electronic case files system will be: (1) the staff costs for planning
and implementation (including identification of new business processes and training), and (2) the
costs of equipment and communication services. For all proposed implementation, a business
case will be prepared to show that the benefits will exceed the costs.
A fully developed ECF system will capture documents electronically at the earliest possible point, ideally from the person who creates the document. The system will not only contain
everything presently included in a paper case file but could also encompass the court’s internal
case-related documents. It will provide access to case files in ECF systems throughout the federal
judiciary and include links to relevant information in automated court financial and other records,
and perhaps even to texts of case law, statutes, and other legal authority such as those accessible
through the Internet.
To meet the needs of all users, an ECF system will include capabilities to—
make electronic documents easily printable for users who require a paper copy
provide easier, more immediate, and less costly access to case information at
courthouse and remote locations alike
facilitate creation and use of electronic files by all litigants (including pro se parties) and court personnel (including judges and all court administrative units); and
preserve, and indeed enhance, the integrity of the public record and confidentiality
of sensitive or privileged materials through effective court control and appropriate
security measures.
Key Issues
Cultural, policy, legal, technology, and staffing issues related to ECF must be—and, in
some respects, are already being—addressed through the judiciary’s normal decision-making processes (e.g., coordinated action by the Judicial Conference and its committees). Among those
issues that must be resolved either before or early in the system implementation process are ones
relating to—
authentication, security, and preservation of electronic documents
possible changes in procedural rules governing service, notice, timeliness, and format
ensuring appropriate access for all users, and obtaining their participation
funding of new systems and services (i.e., through appropriations, user fees, etc.),
including basic decisions on the timing and extent of judiciary financial and human resources that will be devoted to pursuing the ECF initiative
This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

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management of judiciary resources (e.g., staff utilization, education and training; allocation and use of courthouse space)
potential use of commercial providers of electronic filing services (e.g., public access
to court records, custody of public documents, document security, procurement requirements, and court staffing)
integration of ECF systems with other automated sources of litigation-related information; and
action on myriad administrative details needed to implement a timely shift from paper
to electronic files.
Some of these issues will require policy decisions by the Judicial Conference or by individual courts. Others may require legislative or rules changes. And some will be resolved by making
choices based on practical considerations. In all cases, the judiciary will find it easier to answer
difficult questions of court administration and policy if ongoing experiments and pilot projects are
used to test alternative approaches and provide sound empirical data.
Prototypes, Products, and Services
An electronic case files system provides electronic versions of documents traditionally
stored as papers in a case file folder. These electronic documents can be easily retrieved by the
court, the bar, and the public who can view them on a computer screen or print them to paper.
Some of the electronic documents might be stored as scanned images, but eventually most documents should be electronic text files submitted directly by the attorney or other filer and automatically docketed and stored by the system.
A number of federal and state courts are already operating prototype systems. Using an
ECF system developed by the Administrative Office of the United States Courts, the Northern
District of Ohio began receiving electronic filings in maritime asbestos cases via the Internet in
January 1996. Their system now manages over 5,000 such cases and has saved the court from
handling over 100,000 paper documents. Nearly 50 attorneys from around the country have not
only submitted those documents in electronic form, but also simultaneously and automatically created the court’s official docket entries. A similar Internet-based system began operation, with
Administrative Office assistance, in the Southern District of New York (Bankruptcy) in November 1996, and another will begin operation in the District of New Mexico early in 1997. A number of courts, including the Southern District of Texas, the Western District of Oklahoma (Bankruptcy) and the District of Kansas (Bankruptcy), have begun constructing their own electronic
case files by having court staff scan paper documents into their systems. In addition to prototypes
developed in the judicial branch, commercial vendors like LEXIS-NEXIS, West Publishing,
Andersen Consulting and Ameritech are experimenting with products and offering services to
This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

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courts and attorneys. These prototypes demonstrate not only that technology is available today,
but also that many in the judiciary and the bar are ready to move forward and tackle the many cultural, legal, and policy issues that arise.
Recommended Course of Action
A consensus is beginning to emerge, among many who have studied and discussed electronic case filing, in favor of a few basic principles to guide the implementation of ECF in the federal courts:
Implementation should be coordinated nationally by the Automation and Technology
Committee working through the Administrative Office and designated advisory groups
of judges and court staff.
Requirements should be identified, alternatives will be explored, and approaches will
be chosen that best serve overall judiciary needs. The process will follow appropriate
life-cycle management principles, and it will draw on focus groups, work groups, and
centrally coordinated prototypes.
Other Judicial Conference committees with responsibility for rules, case management,
and other litigation procedures should participate in defining requirements and addressing other policy issues.
Within three to five years, a centrally funded and supported model ECF system should
be made available to all interested courts. The model system should emerge from the
various prototype efforts, the commercial market, or new development. It will provide
a standard core capability and have a modular design to facilitate staged implementation, tailoring, and enhancement at the local court level.
The model system should provide capabilities that enable maximum space and manpower efficiencies for courts who choose to fully utilize the system.
Courts may elect to implement the model system or systems of their own design, but
all ECF systems should adhere to prescribed national technical and data standards to
assure uniform access to case information and comply with statistical and other reporting requirements.
Modernization and replacement efforts for existing, nationally supported case management systems should be integrated with ECF implementation.
Acquiring and implementing a system that reflects those central ideas will require cooperation, information sharing, and accommodation of different user interests. The process must adapt

This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

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to rapidly advancing technology but will, at a minimum, require prototype development, experimentation, broad consultation, and development of national standards for data the system will
handle.
On a national level, action is underway to develop a centrally funded, centrally supported
“core” system that interested courts can use, and build upon, to implement ECF. If the requisite
resources are allocated, such a system can be made available within the next three to five years.
This study effort, various prototypes, and other efforts will continue moving toward that objective. Identification of requirements and alternatives should be completed by mid-to-late 1997.
Then, acquisition can begin and that process could take anywhere from a number of months to a
few years. A decision to adopt and adapt an available prototype or commercial system could lead
fairly rapidly to implementation, while a decision to fully develop a new system would probably
require more than a year of development time before implementation.
The action that is most needed now is for the judiciary’s decision makers to become familiar with the information and issues,* and to formulate and express their opinions. Individual
courts that are eager to move forward should also begin the critical and time consuming preparatory work of reviewing their paper flow and associated business processes in light of ECF’s potential; meeting with court staff, the bar, and other users and providers of case documents to assess their functional requirements; and developing a plan for implementation.

*

In a memorandum to judges and clerks dated November 22, 1996, the Director of the Administrative Office
identified some of the key issues to be considered as courts proceed to authorize electronic filing pursuant to the revised
Federal Rules. See Appendix A.
This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

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I. Overview of the ECF Initiative
Efforts to develop and implement electronic case files (“ECF”) in the federal courts are
one of the judiciary’s four priority “Information Resources Management Initiatives,” which are
intended to:
create a virtually seamless web of integrated systems and applications that
allow the judiciary to receive, store, and share information efficiently while
maintaining costs and maximizing the productivity of its decision makers.1
The overall objectives of the ECF initiative are to seek consensus on, and expedite the
implementation of, judiciary-wide electronic case file systems. It will do so by:
identifying the courts’ functional requirements for electronic case files
developing the policy, legal, and technical foundations for electronic case files
initiating the resolution of pertinent policy, legal, and administrative issues
assessing federal, state, local, and commercial ECF prototypes
developing a preliminary estimate of the benefits and costs of ECF
expediting development of national technical standards and data elements.
This paper articulates a vision and recommends an action plan to promote immediate and
long-range progress towards ECF. It identifies key issues for consideration and encourages carefully designed experiments to test a range of ECF alternatives, all within the umbrella of a coordinated national effort. Experimentation is essential to identify and resolve practical problems and
procedural issues, evaluate technical options, and assess the costs and benefits of electronic case
files.
Beginning in December 1996, individual courts have been authorized to provide for electronic filing of documents under local rules, as long as those rules are consistent with any technical standards that the Judicial Conference may establish.2 Part V of this paper summarizes the
proposed interim “Technical Standards for Filing by Electronic Means” that have been developed

1

Long Range Plan for Automation in the Federal Judiciary, Proposed Fiscal Year 1997 Update, at 10 (Dec.
1996). The other three IRM initiatives declared by the Committee on Automation and Technology are electronic courtroom, video telecommunications, and Internet/Intranet.
2
Fed. R. Civ. P. 5(e); Fed. R. Bank. P. 5005; Fed. R. App. P. 25(a)(2)(D) (all effective Dec. 1, 1996). Fed.
R. Crim. P. 49(d) provides that papers in criminal actions shall be filed in the manner provided in civil actions.
This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

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for future consideration by the Committee on Automation and Technology and the Judicial Conference. Those standards and accompanying guidelines, which are being circulated for comment
by bench and bar under separate cover, are included at Appendix B.
This paper was prepared by staff of the Administrative Office of the United States Courts,
with substantial input from judges and court executives, to assist the Committee on Automation
and Technology and other Judicial Conference committees in pursuing the ECF initiative. Follow
-up reports will include additional analysis of ECF experiments and prototypes, assessment of
costs, benefits and other “business case” issues, and further guidance for the courts.
A. Why Electronic Case Files?
Although judges and court staff now have electronic access to docket information, case
management data, and legal research materials, the underlying documents in the case file remain
available to judges and judiciary staff only in paper form.3 With the advent of word processing
and the prevalence of computers, however, it is reasonable to assume that most documents now
generated in litigation are created first in electronic form—only later to be printed, copied, and
filed with the court. The federal courts can further reduce their reliance on paper records by establishing electronic case file systems—i.e., procedures and methods for using electronic equipment to file, maintain, and retrieve case file information in “digitized” form. Electronic case file
systems should enhance the accuracy, management, and security of litigation records, reduce delays in the flow of information that slow the adjudication process, and achieve cost savings for the
judiciary, the bar, and litigants.
Judges, court staff, and Administrative Office staff responsible for shaping the court’s automation programs have advocated a judiciary-wide transition towards the ultimate goal of reduced reliance on paper case files.4 Judiciary studies over the past decade have concluded that
ECF offers great potential to enhance court services, assuming certain policy and administrative

3

Most litigants already have access to their own pleadings electronically. In addition, litigants have already
begun to use in their business operations the kinds of computer technology that would facilitate operation of an electronic case file system. According to surveys conducted by the Chicago-Kent Center for Law and Computers, the proportion of attorneys using computers in the 500 largest law firms jumped from seven percent in 1985 to 70 percent in
1993.
4
The Director’s Automation Planning Council stressed their strong support of the ECF Initiative by recommending the intentionally optimistic goal “that by the year 2000, the United States courts terminate their primary reliance on paper as a means to access information and adopt electronic information systems that would permit simultaneous access by the various constituencies of the judiciary, litigants, and the public, as well as the production of reports
that would allow for the just, speedy, and equitable resolution of disputes." See also Umbrella Group Functional Strategy Statements contained in Long Range Plan for Automation, supra note 1.
This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

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issues can be resolved.5 The primary reasons for embracing ECF now, as articulated by the judiciary’s automation umbrella groups, are that:
Paper files can be cumbersome to organize and retrieve quickly.
The courts require more immediate access to filed documents.
Paper files are usually only available to one person at a time.
The courts require simultaneous access to case files.
Paper pleadings must be transmitted by mail or by hand delivery in multiple copies for
manual distribution to judges and others.
The courts require rapid and reliable methods for sending and receiving information to and from litigants.
Paper files require constant maintenance and significant storage space, may be lost,
disassembled, or misfiled, and are difficult to keep up-to-date.
The courts require a more efficient and effective process for managing the information contained in the case files, and for maintaining the integrity of the files.
The paper file system leads to duplicative copying, filing, and data entry.
The courts require more efficient means to duplicate and access case files, and to
transfer files and documents among courts, records centers, and others.
Litigants will benefit from simpler and more time-sensitive methods to transmit
documents to the court, and from immediate electronic access to filed documents.
B. Approaches to ECF: Ongoing Experiments
The movement towards electronic case files is part of an ongoing, national business process of innovation in filing, storing, managing, and disseminating information. In addition to several federal and state court experiments with ECF, federal agencies such as the Internal Revenue

5

A precursor to this initiative was the “Electronic Document Processing Project” in the early 1990's. Many of
the administrative and policy issues addressed in this paper were previously identified and considered by, among others,
the project’s Human Factors and User Acceptance Working Group.
This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

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Service and the Securities and Exchange Commission have established electronic filing programs.
In the private sector, “electronic commerce” (e.g., electronic funds transfer, credit card charges,
and insurance claims) is already a fact of life, and it is rapidly expanding and improving. The
courts can, and should, take advantage of these new ways of doing business to enhance their productivity and service to the public.
The ECF project staff has conducted research to identify ECF activities already in place in
some federal and state courts and administrative agencies, as well as in private organizations.
When possible, project staff visited court sites to conduct interviews and collect additional data.
This section presents a brief summary of ongoing electronic filing and imaging experiments in various courts. Appendix C contains further information on these and other ECF experiments.
1. Electronic Filing
These experiments have the attorneys not only filing electronic case documents but also
specifying automatic docket entries. They include:
a. Internet Gateways: The United States District Court for the Northern District of Ohio is experimenting with electronic filing of 1996 cases on its maritime asbestos docket. Attorneys gain
access to the court's electronic filing system through the Internet (although the system could work
on any network). The system then guides the attorney through interactive steps to submit the
document and specify the proper docket entry. Electronic documents and docket entries are automatically stored in the court's computer for viewing by the bench, the bar, and eventually the public. In its first year of operation (beginning January 1996), more than 50 attorneys from around
the country submitted nearly 20,000 electronic documents and 100,000 docket entries. The system provides all the case management capabilities needed for the asbestos cases. A similar system, with more robust case management capabilities, began live operation in the Bankruptcy
Court of the Southern District of New York in November 1996.
b. Electronic Data Interchange: The Bankruptcy Court of the District of New Mexico plans to
issue notices and accept electronic petition data in electronic data interchange (EDI) format.
Commercial software vendors have built the EDI capability into their bankruptcy packages.
Newly-developed court software would use that data to open cases automatically in the Bankruptcy Court Automation Project (BANCAP) electronic docketing and case management system.
Initially data will be submitted on diskette, but the process will be upgraded to have the data
transmitted electronically.
c. Process Innovation: The electronic filing system for the district and bankruptcy courts in the
District of New Mexico is part of a district-wide “engineering” effort to examine not only systems
but all procedures of district and bankruptcy court operations, including chambers, to increase
This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

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efficiency and effectiveness. The filing system under development will allow remote filing through
the Internet. The court has plans for real-time access to PACER (Public Access to Court Electronic Records), which will be open to the bar as a pilot without charges, and has already implemented a real-time master calendar.
d. Third-Party Vendor: CLAD (Complex Litigation Automated Docketing) is in use at the Delaware Superior Court for insurance coverage cases. The system is owned and operated by a private vendor (LEXIS-NEXIS) which stores data files and allows parties access to documents and
to conduct full-text searches. Newer versions of CLAD are being tested elsewhere. The Bankruptcy Court for the Southern District of New York has also experimented with CLAD and WestFile (West Publishing Company) in two large Chapter 11 proceedings in that court. These systems provide very limited case management capabilities.
e. Public-Private Partnership: The Prince George’s County District Court in Maryland and a
private vendor (Andersen Consulting) co-sponsored development effort for a filing system, JusticeLINK. The court accepts electronic filings from various participating attorneys for motor vehicle torts and foreclosure cases. The project, currently inactive, envisions the ultimate establishment of a virtual courthouse that electronically connects the court, lawyers, and the community
efficiently and profitably. The vendor helps the court develop a link between the filing software
and the court’s case management system.
2. Imaging
Document imaging efforts—that is receipt of paper documents from attorneys, followed
by electronic scanning into image format—include the following:
a. All Case Documents: The Bankruptcy Court of the Western District of Oklahoma has implemented an imaging system to store all case file documents in an electronic case file. A case is
opened and entered into BANCAP in the normal fashion. However, case processing staff also
scan the submitted documents into a computer database. By using the BANCAP case outline,
they link each scanned document to a docket entry. The file is circulated electronically or as copies printed from the electronic file. Remote access is being tested.
b. Specific Function: Image scanning in the Southern District of Texas (district and bankruptcy
courts) focuses on noticing and storage of orders signed by judges. The docket clerk makes the
usual ICMS (Integrated Case Management System) entry for the order and the paper is scanned.
All images are stored on a fixed disk and retrieved using the associated case number. For noticing, the scanning clerk commands the computer to transmit the order image via fax modems to the
appropriate attorneys’ offices, or where fax modems are not available, to printers for mailing.

This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

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c. Case Management Support: The Bankruptcy Court for the District of Kansas established imaging as a means for reduced paperwork in case management. Each item is docketed into BANCAP first, and then scanned. Images are named and stored on fixed disks by case year, document
type, and case/document number using commonly-available file management software. Images
and files are available for printing, personal working copies, or transfer via electronic mail (email).
3. Chambers-Based Experiments
In addition to the experiments described above, some individual judges in the same or
other courts are conducting limited experiments related to ECF. The availability of commercial
services that provide e-mail and Internet access has facilitated electronic transmissions between
attorneys and judges’ chambers. These chambers-based experiments include transmission by
e-mail of proposed orders, as well as transmission of notices from chambers to attorneys.
C. The Road From Here: An Action Plan
The ECF initiative is likely to be most successful if its scope is well-defined and the development of ECF capabilities proceeds according to a carefully articulated plan of action. This section identifies the fundamental goal of ECF development, a strategy for achieving that goal, and
the mechanism for moving forward in the short term.
1. Guiding ECF Development
The Goal:
The federal courts should develop and implement electronic case file systems to
achieve totally integrated electronic management of litigation-related information.
The Strategies: The judiciary should develop ECF through a nationally coordinated and directed process that addresses the current and future information needs of both the individual
courts and the judiciary as a whole. Development should therefore proceed in accordance with
the following principles:
Leadership and Participation. Development and implementation of ECF should occur
through a partnership involving all levels and elements of the judicial branch.6 The process
should be supervised nationally by the Judicial Conference and its committees within their respective areas of responsibility, and it should receive support from the Administrative Office

6

Although the primary focus in this paper is on the courts of appeals, district courts, and bankruptcy courts,
efforts to develop ECF systems should include the Court of International Trade, the Court of Federal Claims, and any
other special courts in the judicial branch.
This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

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and the Federal Judicial Center. All interested parties—including the private bar and government agencies—should be consulted and involved in the design and evaluation of ECF systems to assure that the interests of all users of case file information are appropriately satisfied.
Related Activities. Pursuit of the ECF initiative should integrate all existing and future projects or programs intended to modernize, enhance, or restructure court information-handling
systems and procedures related to case files.
Life-Cycle Management Process. The judiciary’s established process for managing national
automation projects should be followed to assure that user needs and business justification are
defined, functional requirements are established, alternatives are analyzed, and technological
solutions are fully tested, integrated, and installed with adequate support and education. To
aid in that process, courts and other judicial branch entities should be encouraged to share
information on ECF projects through a central clearinghouse.
Nature of Development. Within the next three to five years, the process of ECF development
should produce a model ECF system with core capabilities that would be centrally funded and
supported, and made available to all interested courts for possible implementation. The model
system should provide capabilities that enable maximum space and manpower efficiencies for
courts who choose to fully utilize the system. The approved architecture should permit courts
sufficient “modular” flexibility to enable them to meet immediate needs with ECF components
that can be “built upon” or enhanced to provide increased functionality and meet local needs
as circumstances warrant and technological advances permit. To that end, ECF should be
designed to use “off-the-shelf” applications wherever feasible, recognizing that new solutions
may have to be developed if capabilities required by the courts are not addressed adequately
by any commercial product. Courts should be free to implement their own ECF systems so
long as they meet appropriate national standards with regard to the technology employed and
data included in such systems.7
Policy Questions. Policy questions arising from ECF studies and experiments (see Part IV
infra) should be examined and resolved as expeditiously as possible through the judiciary’s
normal decision-making processes, including coordinated action by the Judicial Conference
and its committees.
Experimentation. Several pilot projects and prototype systems should be continued or immediately initiated to refine the courts’ functional requirements for ECF, identify technical alter-

7

Standard formats and document nomenclature will play a critical role in the submission and exchange of
documents to, from, and among courts. Early standardization would improve the direction given to programming staff
working on ECF pilot projects, as well as maximize the transportability of ECF applications across the court community.
This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

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A Preliminary Examination of Goals, Issues, and the Road Ahead

natives, test working assumptions, and resolve issues. Experimentation should occur in all
critical areas, with pilots testing both a “full” ECF system (i.e., capable of including all cases
in a particular court) and “limited” systems for specific types of cases (e.g., prisoner cases,
criminal cases, civil cases, bankruptcy cases, administrative cases). Testing, moreover, should
extend to all court levels (trial and appellate) in the judiciary.
Imaging vis-a-vis Electronic Filing. Document imaging experiments can be pursued, in combination with other ECF approaches, to provide immediate benefits to courts and allow judges
and court staff to become familiar with an electronic case file environment. In the short term,
at least, imaging is likely to be an essential part of more comprehensive ECF systems, allowing
courts to include in electronic files those documents that cannot feasibly be captured electronically at the source. At the same time, however, efforts to develop and facilitate EDI and other
methods for directly transmitting and receiving case file documents in electronic form should
be encouraged.
Business Case. Information on pilot projects and prototypes should be collected to allow for
careful evaluation of potential costs and benefits, and to document the “business case” for
shifting from electronic to paper case files.
Funding. Central funding should be provided in FY 1997 and beyond for coordinated ECF
development and experimentation. Ultimately, only the core ECF applications included in the
model system should receive central funding and support.
2. Making Progress
Coordination of Effort. The Committee on Automation and Technology, working with other
Judicial Conference committees8 and through the Administrative Office and designated advisory
groups of judges and court staff, should coordinate the development and implementation of ECF
systems, including:
identification of functional requirements
development and/or identification of possible hardware and software solutions
collection of data on locally developed solutions
promotion of additional experiments, as required

8

The Standing and Advisory Rules Committees and the Court Administration and Case Management, Criminal Law, Bankruptcy Administration, and Magistrate Judges Committees all have substantial responsibility for policy
development concerning litigation procedures and information flow. Those committees, and perhaps others, must participate in defining requirements and developing policy recommendations to the Conference.
This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

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analysis of prototypes, pilots, and other experiments
development of national technical and data standards to assure accessibility of case file
information and compliance with statistical and other reporting requirements.
Court Activities. Courts interested in early implementation of ECF capabilities should proceed
within the framework of the national effort by adhering to prescribed interim standards, sharing
technical information, and otherwise cooperating with national evaluation and data-collection efforts.
Schedule. As stated above, a centrally funded and supported model ECF system with core capabilities should be available within the next three to five years. By the end of 1997, it should be
possible to define the basic functional requirements for ECF based on information from ECF experiments as well as ongoing case management process and system modernization efforts, and to
evaluate the existing alternative approaches to ECF. Following that, a model system could be
designed or obtained and then made available within a number of months, or within a few years,
depending upon the acquisition method chosen. Although the extent to which national standards
are appropriate cannot be assessed fully until the judiciary has explored a range of alternative
technological solutions and approaches, interim standards should be approved by the Judicial
Conference to ensure that the basic integrity of court records is maintained in local court experiments (see Part V infra). A follow-on report (see above) can discuss the progress made during
this time, establish a longer-term schedule for ECF development, and provide additional policy
guidance and practical information for the courts.

This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

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II. Electronic Case Files: A Vision of Future Possibilities
The following presentation outlines a hypothetical judicial proceeding—not limited to any
particular case type—and describes how electronic case file technology might be used at various
stages to facilitate the creation, management, and use of litigation records. These scenarios merely illustrate the potential of electronic files. The actual details of any system that might be developed will depend on further policy and technical analysis.

STEP 1—DOCUMENT PREPARATION AND FILING
Alternative A: “Technologically-capable” private filer
An attorney or pro se litigant would prepare a text document for the court (such as a complaint, motion,
brief, or proposed findings) on a word processor, as usual. A copy of the document, together with a
“cover page” containing certain required identification, administrative, and case management information, would be sent to the court electronically in accordance with the judiciary’s technological standards.
Attached documents—often not originating with the filer—would also be sent electronically, perhaps
with the aid of scanning technology. Signature requirements and court fees would be satisfied electronically in accordance with revised federal and local rules.
Alternative B: “Non-technologically capable” filer
Many pro se litigants and some attorneys do not presently have the technological capacity to generate
and transmit documents to the court. Accordingly, they could continue to file paper documents. The
documents would be imaged or otherwise scanned into the court’s computers by court staff. Bar associations, public interest groups, and others (e.g., copy services) can be expected to facilitate electronic filing
by all attorneys and many pro se litigants by assisting with transmission of documents to the court in the
prescribed electronic form.
Alternative C: Court units and government agencies
Reports and other documents prepared for the court by the various subordinate offices of the court, such
as pretrial services agencies, probation offices, clerks’ offices, and staff attorneys would be generated
electronically. They could be added to the case files or kept in internal or confidential court files, as may
be appropriate. Documents prepared by non-court government agencies and affiliates, including the U.S.
Marshal, U.S. Attorney, and Federal Public Defender, law enforcement and administrative agencies, and
bankruptcy trustees would be generated and filed electronically. Official records transferred from other
federal courts (appellate, district, and bankruptcy), and from many state courts and federal administrative
agencies could be filed with the court in electronic form.

This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

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STEP 2—SERVICE
A technologically-capable filer would effect service of a document on similarly capable parties by
electronic means, and certificates of service would be generated and filed electronically. Other parties
would make, receive, and certify service by traditional methods.

STEP 3—RECEIPT OF THE DOCUMENT IN THE COURT
The document would be received in a computer designated by the court. The computer would verify the
document, log it in, “file” it, note the time of filing, “docket” it in accordance with the information
provided by the attorney in the cover sheet and the caption, link it to other docket and file information
in the court’s databases (including information on consolidated or related cases), and return a certificate
of receipt to the attorney.

STEP 4—CIRCULATION OF THE DOCUMENT
The document and attachments would be sent to appropriate computer databases controlled by the court.
The electronic record would be the official record, and the case file would be maintained electronically
by a computer under the court’s control. If the document opens a case, the court’s case-opening, caseassignment, attorney-admission, and statistical systems would be interfaced electronically. The court
financial systems would be interfaced regarding any filing fees or other financial requirements. In
addition to participating attorneys, other appropriate non-judiciary offices—for example, the U.S.
Marshal and the U.S. Trustee—would be notified electronically of the opening of new cases, the filing
of pertinent documents, and the occurrence of pertinent events.

This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

Case 1:16-cv-00745-ESH Document 52-3 Filed 08/28/17 Page 27 of 63

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A Preliminary Examination of Goals, Issues, and the Road Ahead

STEP 5—QUALITY CONTROL
Although a document received from outside the court would, at the outset, be filed, “docketed,” and
added to the appropriate database(s) by electronic means (as described in Step 4), the version received
by the court’s computer would be placed in a separate “receipt” directory or otherwise clearly tagged
with an appropriate designation so that all who view the document would know that it is subject to
quality control measures by the clerk’s office and possible corrective court action. The clerk’s office
would correct any erroneous entries, and the attorney or other filer would be notified of any defects
requiring correction or supplementing of the papers. After the appropriate corrections were made, the
document would be moved to the regular case file directory or any temporary tag would be removed.
Alternatively, quality control by the court could occur before the filed document is circulated to the
court’s database(s). This procedure, however, would produce some delay in posting documents to the
system and making them accessible to all users.

STEP 6—ACCESS TO RECORDS
For both current and closed cases, the docket sheet and filed documents would be linked electronically
and be immediately and simultaneously accessible to judges, court employees, and the public through
the court’s computer. Judges, for example, could have electronic access to all court files (including their
private chambers files and notes) from their homes or while on travel.

STEP 7—INFORMATION AND DOCUMENTS FOR CHAMBERS AND COURT OFFICES
Judges and other court staff would be notified of the filing of all pertinent documents in cases assigned
to them, and would be provided with appropriate reports and tickler messages. Printed copies of any
dockets and documents could be produced either by the clerk’s office (and sent to chambers or courtroom) or by the judges and staff themselves, according to their individual preferences. In addition,
selected portions of the docket and other file documents could be copied or downloaded to separate files,
enabling individual judges and chambers staff to specify the files, parts of files, docket entries, or
documents they wish to use in chambers and in the courtroom.

This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

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STEP 8—COURT ACTIONS
Written orders, opinions, judgments, sentences, proposed findings, notices, etc., would be produced
electronically in chambers or other court offices and entered through a control point into the court’s
computers. These documents would be linked with earlier documents and docket entries. Where appropriate, the court’s document would generate a new docket entry, and an electronic (or paper, if necessary)
copy of the document or notice of its filing would be sent to all interested parties, including other courts
and—if requested—to other judges and court staff who have an interest in the case. A certificate of
service would be prepared and docketed electronically and included in the electronic file.

STEP 9—DISCOVERY MATERIALS
Discovery materials and other litigation-related documents—such as correspondence, indices, and
records—would normally be generated or collected by attorneys in an electronic format that facilitated
eventual filing with the court, if needed in connection with a motion or the introduction of evidence.

STEP 10—CONFIDENTIAL DOCUMENTS
Sealed records, ex parte documents, private notes of judges and court staff, internal court memoranda,
and other items that require confidentiality, would be maintained in a secure electronic environment and
linked to the file electronically under security procedures that restricted access to authorized users.

This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

Case 1:16-cv-00745-ESH Document 52-3 Filed 08/28/17 Page 29 of 63

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A Preliminary Examination of Goals, Issues, and the Road Ahead

STEP 11—TRIAL AND OTHER EVIDENTIARY MATERIALS
According to the judges’ preferences, the lists of trial witnesses and trial exhibits could be approved
before trial. The admissible evidence (and—if the court desires—all proffered evidence) would be premarked and compiled in electronic format for use at trial. Various types of evidence—such as documents, photographs, charts, videos, and physical evidence—might be available in a variety of formats,
some of which could be accommodated electronically. At the trial, the attorneys and the judge could
retrieve electronic records and exhibits instantaneously. Records and exhibits could also be displayed
readily on television screens or other devices in the courtroom. Transcripts would be prepared electronically or converted to electronic format. They would be filed as part of the official electronic case record.

STEP 12—APPEAL
A litigant would file a notice of appeal—or an objection to a report and recommendations by a magistrate
judge or bankruptcy judge—with the clerk of the original trial court, using the same method litigants
use to file other documents with the court. The appellate court would be notified immediately of the
filing by electronic means. In certain agency cases, a petition for review would be filed directly in the
court of appeals, with service on the agency and other respondents. Since the file would be maintained
electronically in the trial court, the clerk of the trial court would certify the record and transmit it or
otherwise make it available electronically to the appellate court. The trial court file (including all private
files and notes) would remain with the trial court, and the appellate record identified by the clerk of the
trial court would become part of the appellate court record. The appellate record would then be supplemented by other documents filed with, and generated in, the court of appeals.

This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

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III. The Electronic Case File: Some Working Assumptions
The judiciary will need to address a number of legal, policy, and operational issues as it
moves to reduce reliance on paper as the principal medium for conducting litigation. Although it
may be too early to reach final conclusions on some of the technical and legal issues, this section
presents a series of assumptions concerning the potential benefits of ECF, as well as the likely
functional characteristics of the electronic case file.
A. Potential Benefits of ECF
For judges and court staff the benefits of ECF could include:
Immediate access to case documents in courtroom.
Portable, simultaneous, and 24-hour access to case files, both inside and outside the
courthouse, for judges and other court employees (including probation and pretrial
services officers and the U.S. Trustee).
Reduced file-handling, maintenance, and redundant copying.
Reduced staff time for tasks including data entry, pulling and reshelving files, and making copies of documents for the public.
Simplified archiving and file retrieval. The physical shuffling and movement associated with paper documents would be replaced by the computer-controlled movement
of electronic documents from the primary storage device to an archive storage device.
Since electronic media requires less physical space than paper, the court might be able
to maintain its own copy of archived information, ameliorating the need to rely on the
record center to retrieve documents or case files.
Potential to make staff available for other purposes, or to reduce total staffing costs.
Although no court has conducted detailed analyses focusing specifically on staff reduction, some preliminary data allow for conclusions about cost savings. For example, a
time and task measurement study conducted by the Clerk of the Bankruptcy Court of
the Western District of Oklahoma showed that dollar savings from FY 1994 through
FY 1996 of the reduced time spent in searching, retrieving, refiling, and similar tasks
by case administrators represent about two average staff salary-years (even when including scanning hardware costs). Beginning the current fiscal year, the clerk’s office
in the District Court for the Northern District of Ohio reduced staff by two positions
and terminated a temporary contract for part-time help—all positions previously deThis paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

Case 1:16-cv-00745-ESH Document 52-3 Filed 08/28/17 Page 31 of 63

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voted to filing paper documents in the maritime asbestos cases, now being filed electronically.
Secured file integrity and reduction or elimination of misfiled papers, due to automated editing and validity checks.
Reduced time for dictation and retyping, because portions of transcripts, pleadings,
exhibits, or briefs could be copied electronically and inserted directly into documents
prepared by the court.
Simple and quick transfer of case files among courts, chambers, and court units.
Reduced need for handling duplicate paper copies filed by attorneys.
Enhanced quality control for both docket entries and file content.
Reduced need to assist with public access to case files.
Enhanced ability to share, annotate, and edit documents through e-mail.
Ability to perform full text searches within individual documents and across an entire
file system.
Potential savings in court office space derived from decreased need to warehouse
hardcopy files.
Reduced or eliminated need for duplicate copies of files.
Established base of local experience for future electronic case file design, technology,
and procedural alternatives.
For litigants and the public, the benefits of ECF could include:
Concurrent and immediate access to the same case file. Once a document is filed it
would be available simultaneously to multiple viewers. Whether viewed from a computer terminal at the court (or through remote access from a lawyer’s desk), filed documents would be available almost instantaneously.
Remote viewing of documents through modem connections. Attorneys would not
need to leave their offices to find a document in a file.
This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

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Reduced need for filing of duplicate paper copies by attorneys.
Increased public access to case files, including remote access.
Improved availability of file information, with fewer lost or missing files or pleadings.
Automated copying of documents, either at remote locations or at the court.
Self-generation of public reports, as, for example, for creditors and trustees.
A replacement medium for archival storage, supplanting microfilm.
Potential to view archived files without waiting time for retrieval and reading of microfilm.
Easier filing and reduced costs, plus more flexibility (i.e., filing and other access can
occur from remote locations at any hour of the day).
B.

Functional Characteristics

This section posits a series of assumptions concerning the basic features that courts and
court users would find necessary or useful in an electronic case file system.
1. In principle, all federal courts should use electronic case file systems that
have a common core and are functionally equivalent, but some variations will
be necessary to accommodate local needs.
Ideally, the electronic case file systems at all levels of the federal judiciary would include
the same basic types of information and provide comparable service for judges, court staff, attorneys, and other users. This would not only ensure that the benefits of an electronic system are felt
throughout the country, but also facilitate the process of litigation from one level to another
through the courts. Commonality of systems is also a very important interest for agencies and
attorneys who practice in multiple jurisdictions.
As a practical matter, however, complete uniformity is neither likely nor necessary. Some
categories of litigation (e.g., prisoner and other pro se cases), certain kinds of file items (e.g., es-

This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

Case 1:16-cv-00745-ESH Document 52-3 Filed 08/28/17 Page 33 of 63

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pecially lengthy or nonstandard documents or exhibits),9 or circumstances peculiar to particular
courts, might require alternative technological solutions. Those solutions might incorporate imaging of paper filings rather than original receipt of filings electronically, differing time frames for
implementation, or even exclusion of certain documents from the electronic file.
2. An electronic case file should comprise all written documents and other items
presently included in paper case files, and it could also provide direct access
to other records relating to litigation.
An electronic case file potentially would include all items of record filed or generated in a
civil, criminal, appellate, bankruptcy, or other judicial proceeding.10 Docket entries and documents would be linked by “hypertext” or similar connections permitting a user to go directly
from one file item to another. With “search engine” capability, any text in the docket or a file
could be searched to quickly and completely locate specific items. In addition, an electronic case
file could be designed to permit access to internal court documents (e.g., judges’ private notes,
law clerk/staff attorney memoranda) and other items that are not included in the official case file
(e.g., arrest and search warrants, presentencing reports), but pertain to particular cases and are
regularly used by court personnel. These internal documents and other items would not be included in the official case file, and would be secure from unauthorized access.
3. An electronic case file should interface with electronic case files maintained
in other federal courts, and with other automated official records (e.g., case
management, financial, and statistical systems) that contain litigation-related
information.
An electronic record system could be designed to link with other electronic records or databases, providing users with access to information collected and maintained in different locations
and organizations. Given the degree of connectivity that present technology already permits between differing systems and products, it would be sensible to maintain an expansive view of the
possibilities.
For example, an electronic case file system designed to take advantage of that capability
would allow judges, court employees, litigants, attorneys, and other users to retrieve, through one
access point, all court-held information involving a particular case, regardless of whether that in9

Appendix D describes the major elements of appellate, bankruptcy, district court (civil), and district court
(criminal) case files, as well as case-related documents produced or maintained in probation office and pretrial services
agency files. These charts include information on factors that may bear on how particular file documents are handled in
an ECF system.
10
Certain items might not be included in the electronic file if capture in digitized form proves too difficult or
not cost-effective (see previous note and accompanying text).
This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

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formation is: (1) generated in bankruptcy, district, or appellate court proceedings; (2) maintained
in a court’s separate system of records, such as the court's ICMS or other case-management system, the court's financial database, the court reporting and other electronic courtroom systems;
(3) generated and maintained in separate systems maintained by other official participants or court
units such as probation and pretrial services offices, U.S. Trustees and bankruptcy administrators;
or (4) accessible electronic databases outside the courts (e.g., Internet “Web” sites and computerassisted legal research (CALR) services).
4. Case file items should be captured in electronic form at the earliest practicable time.
To secure the greatest benefits from these systems, documents and other filings should
generally be obtained by the court in electronic form at the outset rather than being filed initially in
paper form. To maximize electronic filings, attorneys and other potential filers could be required
or encouraged to use the appropriate electronic format when creating and maintaining documents
(e.g., discovery requests and responses, litigation-related correspondence) that subsequently
might be used as a trial exhibit or attached to a motion or other filing.
5. An electronic case file system that includes filing of pleadings and other documents in electronic form must also have the ability to capture docketing information for the court, effect notice (and perhaps service) on the parties, verify
timeliness of filing, and confirm receipt by the court.
When litigants are permitted to file case documents directly in electronic form, the court
can gain additional benefit from the system by requiring the filer, at the same time, to provide the
court with docketing information. At the court's option, the information provided by litigants
might be automatically entered directly into the docket subject to internal review, or held in a
pending status for use by the clerk’s office in making the official docket entries. The system could
also be designed to allow both the court and litigants to effect notice or service of pleadings, motions, orders, and other documents on all parties by the same or similar electronic means. Finally,
the system should allow the court to verify the timeliness of a filing and allow parties to confirm
the receipt and docketing of their filings.

This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

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6. Electronic case file systems should be designed to maintain the integrity of the
court’s dockets and ensure effective court control of the public record.
Control of, responsibility for, and possession of the court's dockets and files are central
functions of a clerk's office.11 Whether in paper or electronic form, the case file is a public record
that must remain under the court’s effective control.12 Although these functions would necessarily evolve in the context of an electronic filing system, ensuring the accuracy of the court’s dockets and maintaining effective control over its files would remain key roles of the clerk.
7. An electronic case file system should be designed to promote decreased reliance on paper copies, but should also continue to provide access to records in
paper form.
An ECF system should be designed to encourage and facilitate working with electronic
documents on a computer screen rather than in paper form. Accordingly, attention should be
given to making electronic displays easy to read and use, accommodating user preferences as to
the format and location in which case files can be read, and addressing other issues involving the
ergonomics of ECF equipment design and use.
It is likely that paper will remain for many users the preferred medium in which to receive
and handle at least some file information. With current technology, the contents of electronic files
would not be accessible except at a desktop or through a portable computer—requiring users to
change significantly how and where they work. For this reason, electronic case file systems
should be capable of printing paper copies of documents on demand, and the court could establish
procedures under which paper copies of documents would be produced routinely in defined limited circumstances or for certain users. Reliable and high-speed methods for retrieving and printing documents must be made available to all court offices.

11

These duties are set forth by statute or by federal rules. For courts of appeals, this responsibility is set forth
in Fed. R. App. P. 45(b). For district courts, Fed. R. Civ. P. 79(a) and 28 U.S.C. § 457 apply. In bankruptcy courts 28
U.S.C. § 156(e) and Fed. R. Bankr. P. 5003(a) address duties of the clerk in this regard.
12
Although the operative statutes and rules (see preceding note) speak in terms of the clerk of court “keeping”
the dockets and official court records, this would not seem to preclude an arrangement under which a private company
maintains the court’s electronic case files in a computer not located at the courthouse or another judicial branch site. By
contractual provisions and other practical measures (e.g., obtaining software codes and copies of the electronic files), the
court can ensure that it retains effective control of the ECF records.
This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

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8. Electronic case files should be designed to accommodate local practices while satisfying the judiciary’s more general informational needs.
Although the immediate users of electronic case files would be the individual courts and
their users, the judiciary as a whole has a strong interest in facilitating communication among the
courts and ensuring consistent, accurate reporting of statistical information. National standards
that define minimum format requirements and data capabilities would ensure that both local and
national needs are met. Local rules and practices on document naming (e.g., those requiring certain motions to be styled “applications”) and other format criteria would be accommodated in
electronic case files to the extent that local practices are consistent with nationally uniform rules
of practice and procedure, and with the ability of courts to exchange case file information in electronic form.
9. Electronic case file systems should conform to basic requirements and standards in automation architecture and design that emphasize ease of access,
adaptability to change, reliability, and compatibility with alternative technological solutions and functional needs.
Although courts should be encouraged to implement electronic case files to meet their
specific needs, neither local nor national needs for case file information and statistics can be met
unless electronic file systems are designed to share information with each other, and to remain
flexible in the face of evolving technology. The judiciary’s Information Systems Architecture
(ISA) provides a framework of information technology strategies, standards, and guidelines, and
defines the infrastructure components that enable the judiciary to design, develop, and operate
cost-effective and flexible automated solutions. To ensure the requisite compatibility and flexibility, all hardware and software configurations used in electronic case files should conform to the
core requirements of the ISA and, to the extent necessary, meet other national technical standards. Because the information stored in ECF systems is critical to the courts’ mission, all ECFrelated hardware and software must be highly reliable.
The precise balance between uniform national standards and local option will be difficult
to define. At a minimum, it might be appropriate to require that all electronic case file systems
provide access through a single network (e.g., the Internet or functional equivalent) and set of
network tools (e.g., a particular Web browser and file format). This would ensure sufficient functional similarity across the United States that all users (court personnel, attorneys, members of the
public) wherever located might obtain information from any court system without the need for
extensive training. On the latter point, an analogy might be drawn to the relatively standardized
screen menus and functionality found in the many different kinds of “Windows-based” computer
software.

This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

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10. Electronic case file systems should provide enhanced user access to case file
information.
Regardless of where the data are stored, judges and court staff should have the ability to
retrieve electronic case file information immediately (i.e., at any hour and on a real-time basis),
simultaneously (i.e., to multiple users), without cost to the court (even if access charges are levied
to outside users), and from remote locations (i.e., by network or dial-up mechanism) as well as in
the courthouse. The contents of electronic case files should also be accessible to litigating parties,
their attorneys, and members of the public under terms and conditions at least as favorable as
those governing access to paper files: that is to say, an item in an electronic case file would be
accessible, at least in read-only form, to anyone who has access to a paper version under current
practice. To the extent feasible and cost-effective, an electronic case file system would afford
easier, more immediate, and less costly access to non-court users than is currently possible with
paper files. In allocating the costs of ECF technology, therefore, both the potential for improved
services as well as the impact of user fees on access to the courts should be weighed.
11. Innovative solutions should be developed to accommodate pro se and other litigants
who may not have access to computers.
Creative electronic solutions should be pursued to facilitate electronic filing by all litigants
over the long term. Options might include pilot projects to allow electronic filing of prisoner petitions on court-developed forms, public terminals that permit document preparation and electronic
filing at the courthouse, or document imaging systems that integrate non-electronic pleadings into
an ECF system.
12. Electronic case file systems should include appropriate security measures.
An electronic case file system must include sufficient security measures to preserve the
confidentiality of sealed items and other restricted-access materials (e.g., the personal files of
court personnel and other items circulated only within the court or to certain parties), to protect
data from destruction or corruption by user error, computer “viruses,”outside “hackers,” equipment failure, and natural or man-made disasters, to ensure against fraudulent or unauthorized filings, and to permit the court’s deletion of records in appropriate circumstances. It should also
permit parties and attorneys to employ reasonable measures (e.g., data encryption) to prevent interception of confidential information during electronic transmission to and from the court.

This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

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IV. Topics for Further Study
The federal courts will address many issues as they change from paper-based to electronic
case files. This discussion does not purport to be an exhaustive treatment of all possible questions
that may arise. Rather, it is intended to raise key questions, present available information, and
suggest areas for further inquiry.
For many of these issues, resolution will involve policy decisions affecting the judiciary as
a whole and, in some instances, may require legislative changes or cooperative action by the executive branch, the bar, or other organizations representing the interests of court users. In addition
to the Committee on Automation and Technology, other committees of the Judicial Conference
have begun, or will soon begin, examining the impact of advances in information technology on
how the courts will conduct their business as they enter the next century. The Committee on
Rules of Practice and Procedure, for example, has established an automation subcommittee to
consider possible rules changes, and the Committee on Court Administration and Case Management has identified a series of administrative and legal issues that the courts will need to consider
when implementing the revised federal rules authorizing electronic filing of litigation documents.13
Individual courts will also confront a number of policy, technical, and other issues as they develop
new and revised local rules, internal operating procedures, and the work processes needed to effectuate the shift from paper to electronic case files and the filing of court papers electronically.
Some of these issues will be resolved simply by making choices based on the judiciary’s
existing policy positions and core values. The answers to other questions, however, will be identified only through actual experience—gained in experimentation with, and analysis of, new technologies and practices. The judiciary, as a whole and in individual courts, should therefore take
advantage of the existing and future pilot projects and prototypes as “laboratories” in which to
test alternative approaches to the various issues.
A. Authentication, Security and Preservation of the Litigation Record
1. Document Authentication
Signatures generally serve an authentication function, attesting to the validity of the document and verifying that the document is attributable to the signer. This ensures that there has
been no tampering with the document. Federal rules typically require a signature on documents

13

See Memorandum re Electronic Filing from Leonidas Ralph Mecham, Director of the Administrative Office
of the United States Courts, to all Judges, United States Courts, and Clerks, United States Courts (Nov. 22, 1996) (Appendix A).
This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

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filed with the court.14 By local rule, some courts require that the signature be an “original.” Effective December 1, 1996, the federal rules allow courts to adopt local rules permitting papers to
be filed, signed, and verified by electronic means.15 Electronic filings that comply with such local
rules satisfy all the requirements for filing on paper, signature, or verification.
The judiciary will need to establish procedures to accommodate signatures on documents
that are filed electronically. There are many different methods for capturing actual signatures in
electronic form, none of which is widely adopted or a market leader at this time.16 Other verification options include use of passwords 17 or “digital signature” technology.18 The signature and
verification systems adopted by courts to accomplish electronic filing should take into consideration the characteristics of filers.19 The court would also need to establish procedures to accommodate documents requiring verification beyond a signature given under penalty of perjury.20
Document authentication is closely associated with the issue of security, discussed infra.
Whatever means a court chooses to adopt to satisfy the need for signatures should minimize the
potential for interception or alteration of electronic communications.

14

See Fed. R. Civ. P. 11(a); Fed. R. Bankr. P. 9011(a). Under both rules, a signature establishes the signer’s
responsibility for the document and also certifies his or her compliance with the three affirmative duties imposed by the
rules. The signer is subject to sanctions for violation of Rule 11 or Rule 9011. There is no rule specifically requiring
attorneys to sign documents filed in the courts of appeals.
15
See note 2 supra.
16
Some commercial products support the capture of manual signatures in electronic form using digitizers,
essentially electronic drawing surfaces using a pen instead of a mouse. Software now exists which protects a signature
produced via digitizer from being copied, transferred to another document, or altered.
17
For example, the commercial CLAD and WestFile systems and the electronic filing prototype in the Northern District of Ohio each employ a password procedure.
18
Digital signatures use encryption with a private key known only to the signer and a public key distributed to
the receiver. Under recently proposed guidelines, a trusted third party would serve as the equivalent of an on-line notary, certifying that the signer of the document being transmitted holds the private key corresponding with the public key.
Information Security Committee, Section of Science & Technology, American Bar Association, DIGITAL SIGNATURE GUIDELINES (1996).
19
A password system, for example, could be easily adaptable for use by the local bar and “frequent filers.”
Consideration would need to be given to out-of-state counsel appearing pro hac vice or other attorneys who appear in
federal court infrequently. Different procedures might need to be established for pro se filers and debtors in bankruptcy.
20
See, e.g., Fed. R. Civ. P. 23.1 (requiring verification of a complaint by a shareholder in a derivative action
on behalf of the corporation).
This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

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2. Security
Any system for managing electronic case files must provide security at least equal to that
provided by the paper system. 21 An electronic case file system must ensure that information and
documents are protected from damage, tampering, loss, and destruction. Existing electronic case
management and docketing systems generally provide access control features, such as passwords,
telecommunications restrictions, and physical security of equipment, to reduce the risk of data
loss or tampering. They rely on edit checks, quality assurance checks, and user analysis of reports and other outputs to limit and correct errors. Data backup requirements exist to aid in recovery in the event of data corruption or system failure. Similar features should be included in
electronic case file systems.
Some security issues are unique in the electronic context. Information transmitted electronically over the Internet, by telephone lines, or similar means can be intercepted with ease between the sender and recipient, allowing the data to be stolen or altered en route.22 To address
these security concerns, low-cost, sophisticated encryption packages have been developed to prevent unauthorized access and to preserve confidentiality, integrity, and authenticity of electronic
communications.23 The protection of documents transmitted electronically raises particular concerns in the legal community.24
21

While the current paper case files are generally considered to be within the custody of the clerk, they are
often checked out to chambers and other court staff, and made available to attorneys, parties and the public. Although
steps are taken to protect files from error, damage, tampering, temporary loss, permanent loss, and destruction both inside and outside the fileroom, all those ill fates are possible. Some courts keep duplicate case files, one in chambers and
one in the clerk’s office. This is expensive, but it can provide backup if a loss occurs. Ultimately, attorneys could be
asked to resubmit documents to rebuild lost or damaged case files.
22
Intercepting these communications, called “phreaking,” has become a lucrative criminal enterprise, targeting credit card numbers and other financial or proprietary information. As a result, AT&T reported this year that 80%
of American businesses use some sort of information security to protect communications. See Seeman, Keys to Secret
Drawers: The Clipper Chip and Key Escrow Encryption (Univ. of Ore., Apr. 1995) (available on the Internet at www.stardot.com/~lukeseem/j202/).
23
These encryption packages are extremely difficult to break, even raising concerns within the law enforcement community that criminal elements could use encryption to block the use of wiretapping in criminal investigations.
See Office of Management and Budget, Draft Paper - Enabling Privacy, Commerce, Security and Public Safety in the
Global Information Infrastructure (May 20, 1996) (controversial proposal to install a “clipper chip” in telephones, fax
machines, and modems, allowing government access to encrypted information with warrants in criminal and national
security investigations).
24
Recently, the Iowa Board of Professional Conduct addressed the use of e-mail and Internet communications
for lawyers transmitting client confidences and secrets. Citing the risk of disclosure through interception by third parties, the Board wrote:
[W]ith sensitive material to be transmitted on E-mail counsel must have written acknowledgment by
client of the risk of violation of Disciplinary Rule 4-101 [confidences or secrets may be revealed by a
lawyer with the consent of the client affected, but only after a full disclosure to them], which acknowledgment includes consent for communication thereof on the Internet or non-secure Intranet or
This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

Case 1:16-cv-00745-ESH Document 52-3 Filed 08/28/17 Page 41 of 63

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Computer systems also remain vulnerable to more traditional attempts to steal or destroy
information. Breaking (“hacking”) into networks or computer systems to steal files and the intentional destruction of files and operating systems through computer “viruses” are a continuing
threat. Electronic filing systems are also vulnerable to “denial-of-service” attacks in which an entity makes so many requests for service that other valid users can not gain timely access to the
system. If a significant number of attempts are made to access the system at nearly the same time,
legitimate users might be prevented from filing, and, if filing is accomplished on the same system
containing the court’s database, court access to its own records might be affected.
3. Preservation of the Record
a. Parallel Systems
Courts establishing electronic case files will need to determine the extent to which they
will continue maintaining paper case files (either alone or in parallel to electronic data) during a
transition period or for the indefinite future. Imaging technology may prove particularly efficacious during the migration from paper to electronic case files, allowing a court that receives a
combination of paper and electronic filings in a case to convert everything into an electronic format.
b. Backup Copies
Electronic backup capabilities, like those used in the case management/docketing systems,
enable an electronic case file system to provide a greater level of protection against loss of information than can be provided by a paper system. Courts using electronic files will need to establish
backup procedures and disaster recovery plans, and might consider additional “fault tolerant”
storage that provides access to data during “down times” short of total disaster.
c. Archiving the Record
If a court implements a case file system in which the files or certain file items are maintained solely in electronic form, the court will have to comply with National Archives and Records
Administration (NARA) and Judicial Conference requirements concerning the management of
electronic records. Under the Federal Records Act (FRA), 25 which applies to all courts other than
other forms of proprietary networks, or it must be encrypted or protected by password/firewall or
other generally accepted equivalent security system.
Formal Opinion 96-1 (Aug. 29, 1996).
25
44 U.S.C. chs. 21, 29, 31, 33 (1994). The FRA obligates agencies (including courts other than the Supreme Court) to "make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency and designed to furnish the information
This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

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the Supreme Court, NARA is responsible for developing and issuing standards to improve management of records and provide for retention of those records that have continuing value.26 The
Judicial Conference is authorized to establish records management policies, consistent with the
requirements of the FRA and NARA, for the United States courts of appeals, district courts,
Court of International Trade, Court of Federal Claims, and other judicial branch entities.27
Agencies are expected to retain any records that remain in active use but are permitted,
under terms and conditions prescribed by NARA regulations, to transfer physical custody of inactive materials to one of 15 Federal Records Centers (FRC) for storage and future retrieval. 28 Records classified as "permanent" are to be transferred to NARA’s custody while other records can
be destroyed under schedules agreed-upon or prescribed schedules.29
Although archiving requirements should not significantly affect a court's ability to operate
an electronic file system during the course of litigation, NARA's restrictions on media and format
for archival storage could present difficulties if pleadings, orders, and other filings that must be
maintained as permanent records are created or maintained in any word processor (e.g., WordPerfect, MS Word, etc.), imaging (e.g., TIFF, JPEG), or other specialized format (e.g., Portable
Document Format—or PDF—files).30 None of these formats is currently acceptable to NARA,
and, of them, only PDF appears likely to become acceptable.31 Before sending records to the ar-

necessary to protect the legal and financial rights of the Government and of persons directly affected by the agency's
activities." Id. §§ 2901(14), 3101. "Records" are defined broadly to include "all books, papers, maps, photographs,
machine readable materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law or in connection with the transaction of public
business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the Government or because of the
informational value of data in them." Id. § 3301.
26
Id. §§ 2904, 2905; 36 C.F.R. Parts 1220-1238 (1995), as amended by 60 Fed. Reg. 44634, 44639-42
(Aug. 28, 1995).
27
28 U.S.C. § 457 (1994); see XIII GUIDE TO JUDICIARY POLICIES AND PROCEDURES ch. XVII (Nov. 6, 1995).
These policies include a schedule for disposition of judicial records that requires permanent preservation of all appellate
case files, several categories of civil, criminal, and bankruptcy case files, and specified portions of other case files or
other records (e.g., dockets and judgment and order books).
28
36 C.F.R. §§ 1228.150-1228.164.
29
44 U.S.C. § 3303a.
30
At present, NARA accepts transfer of electronic records for archival purposes only on prescribed open-reel
or cartridge magnetic tape; the data must be written in non-formatted ASCII or EBCDIC characters that are readable
without requiring specialized hardware or software. 36 C.F.R. § 1228.188(a)(2), (b).
31
With technology already making it possible to create and retrieve electronic documents that appear in print
or on screen in formats indistinguishable from the paper originals, current NARA restrictions may change. The Department of Defense has already established a policy under which permanent records will be stored in PDF format, and other
federal agencies may do likewise. In a recent rulemaking proposal, NARA suggested that records could be archived on
CD-ROM, that records saved as ASCII text could include Standardized Generalized Markup Language (SGML) to preThis paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

Case 1:16-cv-00745-ESH Document 52-3 Filed 08/28/17 Page 43 of 63

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chive, a court using an unacceptable format would be required to convert its case records to an
acceptable archivable format such as: paper, standardized ASCII files (which would lose some
formatting), or a micrographic format (e.g., microfiche). Or the court might attempt to maintain
its own permanent files at the court location—but NARA might not find that approach acceptable.
As courts move ahead to develop electronic case file systems, it will be necessary to keep
these archival requirements in mind whenever decisions are made on which format or formats to
use in creating and storing case file items. For example, if the courts use digital signatures to ensure authenticity and integrity of electronic documents, the encryption keys would have to remain
available either in the stored record or through other measures.
B. Litigation Procedures
Several procedural questions related to electronic case files will require further study.
Amendments to the respective federal rules of procedure effective December 1, 1996,32 permit
courts to establish local rules that allow documents to be filed, signed, or verified by electronic
means. Since current rules and procedures are based on the implicit assumption that the “case
file” consists of a unique or discrete set of paper documents, review and amendment of the relevant federal rules may be necessary to facilitate electronic filing. Among the issues that merit further study are:
•

Service of process and service of pleadings in an electronic filing system

•

Notice to the parties of court opinions, orders and other actions

•

Timeliness of electronic filings and verification of receipt by the court

•

Documents that are received in an incompatible format

1. Service of Process and Service of Pleadings
The amended federal rules permit electronic filing, but do not address the issue of service
of documents in litigation. As an initial matter, a distinction should be made between service of
initial pleadings (i.e., the complaint), and service of subsequent pleadings. Service of initial pleadings raises both due process and federal rules issues that warrant special consideration. Rule 4 of
the Federal Rules of Civil Procedure, for example, specifies several acceptable methods of initial
service that are designed to satisfy notice requirements as developed through case law, and that
serve formatting and, most importantly, that NARA would be willing to consult with agencies on possible transfer of
other kinds of electronic records. 61 Fed. Reg. 39373 (July 29, 1996).
32
See note 2 supra.
This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

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are consistent with constitutional principles. In contrast with subsequent pleadings, more study
may be necessary to devise appropriate procedures for electronic service of initial pleadings.
Once a party has notice of the initiation of a legal proceeding, however, the service of all
subsequent pleadings by electronic means may be consistent with the spirit—though not the current letter—of the federal rules. Although the federal rules currently address only service by
mail,33 proposals to amend the rules to allow electronic service will be considered as the courts
gain more experience with electronic filing.34 In bankruptcy proceedings, the rules also permit the
court to transmit notices of certain events electronically, provided that the entity to receive notice
agrees to electronic delivery.35
Agreement of the parties may be one way to facilitate electronic service, at least in the
short term (i.e., during testing of possible methods of electronic filing). All pleadings could be
transmitted among the litigants through electronic means separate from the court’s filing system
(i.e., through private e-mail). Notices of service could be included in each pleading filed electronically with the court. Conversely, parties might agree that electronic filing with the court also
constitutes electronic service. Parties would either agree to check the electronic docket periodically to download newly filed pleadings, or parties would agree to notify each other (by e-mail,
fax, telephone, etc.) when a new pleading has been filed.
A possible alternative to actual electronic service would be to require litigants in certain
cases—either through national or local rules—periodically to check the electronic case file system
for newly filed documents. Under this approach, the federal or local rules might specify that filing
also constitutes service of pleadings in any case in which documents are filed electronically. Litigants would essentially be required to check the electronic case file system (or, perhaps, their email) the same way the current rules presume that litigants check their “paper” mail. This approach might be aided if parties were given simultaneous notice (by fax or e-mail) of any new filings, thus prompting them to check the court’s electronic case file for the additional materials.

33

See Fed. R. Civ. P. 5; Fed. R. App. P. 25; and Fed. R. Bankr. P. 7005.
See Draft Minutes of the Civil Rules Advisory Committee (Apr. 20, 1995), reprinted in House Doc. 104201, 104th Cong, 2d Sess. (1996) at 10, noting such proposals and stating that “it seems better to await developing experience with electronic filing before pursuing the potentially more difficult problems that may surround electronic service.”
35
See Fed. R. Bankr. P. 9036.
34

This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

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2. Notice to the Parties of Court Opinions, Orders and Other Actions
In addition to electronic service of pleadings, an electronic case file system should also
provide for court notices, orders, and opinions to be transmitted to litigants by electronic means.
As with the issue of service, however, the recent amendments to the federal rules do not specifically provide for electronic communication by the court with litigants.36 The federal rules require
clerks to notify litigants by mail of all court orders or judgments.37 For these reasons, additional
rule changes may be necessary.
Because court orders, opinions, and notices are now generally created through word processing or case management applications,38 the production of such documents would be largely
unchanged. Although electronic dissemination of court documents may require alterations to current work patterns, courts are already conducting successful experiments in this area. The Bankruptcy Rules provide for electronic transmission of notices from the court to parties upon
request, 39 and the appellate courts use Internet and electronic bulletin boards for passive dissemination of court opinions.
3. Determining Timeliness of Electronic Filings and Verifying Receipt by the Court
It is technically feasible to provide essentially real-time access to electronically filed documents, both within the court and, potentially, to the public as well. Electronic filings could be
positively acknowledged, and these acknowledgments would provide immediate feedback that a
filing was successfully received.
As outlined in Part II of this paper (envisioning a “full” ECF system), when a pleading is
sent to the court several electronic records would be routinely created, amounting to a complete
audit trail of the pleading that could later be consulted to verify timeliness. The filing would be
logged through whatever electronic system a litigant uses to transmit the document to the court,
and subsequently would also be logged by the court’s computer system. Such logs would presumably indicate enough of the characteristics of the document sent in order to later verify both
the fact of transmission to the court, as well as the content of the transmission. Moreover, the
same audit trail would likely assist the litigants in verifying that their pleadings had been received

36

See Fed. R. Civ. P. 58 (Entry of Judgment); Fed. R. App. P. 36 (Entry of Judgment); and Fed. R. Bankr. P.
9021 (Entry of Judgment).
37
See Fed. R. Civ. P. 77(d); Fed. R. App. P. 45(c); and Fed. R. Bankr. P. 9022.
38
All ICMS applications have a forms production feature, enabling the creation of standard orders as a part of
the case management process. Order are usually generated by chambers staff in word processing format, then provided
to the clerk’s office staff for docketing and noticing.
39
See Fed. R. Bankr. P. 9036.
This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

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by the court; and litigants could presumably verify that a document had been filed by consulting
the electronic docket.40
4. Documents Received in an Incompatible Format
Despite advances in technology, it is likely that a small number of pleadings filed electronically will not be “readable” by the court. Currently, court clerks are not permitted to reject a filing because it is not in the proper format. 41 In that situation, the clerk usually informs the party
about non-compliance with the rules and, assuming the party is willing to correct the error, determines a date by which the corrected document must be submitted.42
An unreadable document filed electronically, however, may raise additional questions for
the clerk and the court. As a threshold matter, an unreadable document really cannot be “filed”
since there is no way to verify its contents. Likewise, even if the document is later “translated” in
some way to make it readable by the court, questions of timeliness may arise if, for example, the
initial unreadable filing arrived at or near an official filing deadline. Questions of adequacy of service could also arise if filing and service is effected at the same time and the document received by
the parties is also unreadable.
Study is required to estimate how often documents are likely to arrive at the court in an
incompatible electronic file format. Technical standards (discussed elsewhere in this paper)
should mitigate this potential problem. It also may be possible for parties to “correct” a pleading
that initially arrives in an incompatible format—in a manner similar to what occurs now with paper pleadings. In that regard, the electronic “audit trail” that is created through creation and
transmission of an electronic document will assist the court and the litigants in verifying the content and receipt of documents.
C. Access to Electronic Case Files
The use of an electronic filing system may permit broader, easier and more secure access
to court files for all user groups than was ever before possible. Nonetheless, further work should
proceed to explore the following access-related questions.

40

The Postal Service is reportedly developing an “electronic postmark” that will verify the time and date of
e-mail transmissions. See United States Postal Service, USPS to Offer a Variety of Electronic Services, MEMO TO
MAILERS, vol. 31, no. 11 (Nov. 1996).
41
Federal Rule of Civil Procedure 5(e), Federal Rule of Appellate Procedure 25(a), and Bankruptcy Rule
5005 and 7005 each provide that the Clerk may not refuse to accept any pleading presented for filing solely because it
is not presented in proper form as required by the national or local rules.
42
See, e.g., Fed. R. App. P. 25(a) (advisory committee note on 1994 amendment).
This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

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1. Defining “Access” for the ECF Environment
"Access" means the ability to use a court’s electronic case files. Case files traditionally
have been open for public inspection at the clerk's office in every courthouse. With respect to
courts of appeals and district courts, this has been more a matter of custom and the philosophy
that a case file is a public record, although 28 U.S.C. § 753(b) provides a statutory right of inspection to the public for transcripts and court reporter's notes. 43 With respect to bankruptcy
courts, however, there is a statutory right of public inspection without charge provided in section
107 of the Bankruptcy Code. 44 Access to electronic files may be far broader, and available both at
the courthouse and at remote sites (ranging from a law office, to the public library, to an individual's home), virtually without limit as to place or time of day.
2. Need for Fair Access by All Users
Courts will need to ensure fair access to their electronic files. Several issues should be
evaluated in order to promote such access, including:
Whether to charge for remote access, at least for filing purposes.45
Potential need for increased number of public access terminals. Although the clerk can
provide to members of the public as many paper case files as are requested at one time,
subject only to prior "checking out" of a file by a judge or other person (and the file
room staff’s ability to keep up with retrieval requests), a limited number of electronic
file readers—equivalent to the number of public terminals at the clerk's office—could
create a substantial “bottleneck” that inhibits public on-site access to the entire electronic case file system.
Potential need for time limits on public access terminals. Users who occupy a terminal (like users who keep an individual case file for an inordinate length of time) will
limit other users’ access to the case file system. For this reason, a court may need to

43

See Nixon v. Warner Communications, 435 U.S. 589, 597 (1978) (no charge for examining a case file at a
clerk's office).
44
11 U.S.C. § 107(a) (1994).
45
Congress has already determined that fees should be charged for “read-only” remote electronic public access to court information. See The Judiciary Appropriations Act, 1991, Pub. L. No. 101-515, § 404, 104 Stat. 2101,
2129, 2132-33 (1990); The Judiciary Appropriations Act, 1992, Pub. L. No. 102-140, § 303, 105 Stat. 782, 807, 810
(1991); Judicial Amendments Act of 1994, Pub. L. No. 103-420, § 2(2), (4), 108 Stat. 4343 (amending 28 U.S.C. § 612
to require deposit of electronic public access fees in what is now known as the Judiciary Information Technology Fund
—see note 51 infra).
This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

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impose time limits on terminal usage or other measures to allow all who travel to the
court to inspect the case files.
3. Need to Evaluate “Access” in Relation to Potential ECF Vendors
In order to implement the various components of an electronic case file system, courts
may face a choice between development of their own systems and reliance on private companies
to perform similar services. Several considerations should be addressed if electronic filing systems
include reliance on contractors, vendors, or service providers.
First, using private companies in an electronic filing system may create the appearance that
a court is endorsing particular products or bestowing a benefit upon particular companies. Procurement requirements should be carefully studied before proceeding with an electronic case file
system that relies on private vendors or contractors. Second, another aspect of the issue of court
endorsement of private products is whether a court system should itself provide the same kind of
services a private company might provide.46 Depending on the circumstances, such "assistance"
could pose questions about the practice of law and potential liability if litigants receive flawed advice that adversely affects their rights or liabilities. More broadly, it raises the question of how far
a court should go (or what is the court's proper role vis-a-vis the bar) to provide services to litigants and potential litigants.
Finally, although courts may use contractors to perform certain functions (such as bankruptcy noticing), contracts should not be made with private entities for the performance of core
“government functions.”47 In developing electronic case file systems, courts should not allow
contractors to make the type of discretionary decisions that are otherwise reserved for judges and
judicial branch staff.48 Also, any “outsourcing” arrangements for maintaining electronic case file
systems or components must ensure continuous service for the court and the public even if there
is a change of vendor.

46

For example, a “user-friendly” electronic filing system theoretically could provide on-line assistance to litigants in preparing standard pleadings, forms, and other filings.
47
Under regulations issued by the Office of Management and Budget, functions deemed to be inherently governmental should be performed only by government employees. See OMB Circular Q-76 (Aug. 4, 1993). In the
bankruptcy system, there is statutory authorization for the courts to utilize outside facilities or services to provide notices, dockets, calendars, and other administrative information to parties in bankruptcy cases at the expense of the bankruptcy estate. See 28 U.S.C. § 156(c) (1994).
48
As indicated in Part III (anticipated functional characteristics of ECF systems), each court must maintain
effective control of its dockets and other case records.
This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

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D. Financial Considerations
1. Fees Issues
Fee issues to be examined in connection with the electronic case files project include both
broader policy questions, such as the degree to which users of the system should pay the costs
incurred by the courts for equipment and software, and more specific details, such as whether any
fees charged should be the same in all federal courts or for all types of documents and access.49
Decision-makers should keep in mind three key facts. First, Congress has directed that the
judiciary impose fees for access to electronically stored information. Second, it has mandated that
all new expenditures be offset by new collections or reductions in current spending. Third, there
is a long-standing principle that the government should seek, not to earn a profit, but only to
charge fees commensurate with the cost of providing a particular service.50
In analyzing court fees and determining what should be charged for use of an electronic
case file system, many specific issues must be considered and resolved. These include:
Should the cost of an electronic case file system be paid entirely by user fees, or by a
mix of fees and appropriated funds? Should start-up costs be paid for differently than
continuing costs? What is the anticipated impact of fees on user access to case file
information?
Should an electronic filing or usage fee be charged in addition to, or included in, the
current "filing fee" (which varies by the type of proceeding and generally applies only
to case-opening documents)?
Which filings should be subject to an electronic filing fee—initiating documents only
(complaint, bankruptcy petition, notice of appeal) or all documents?
Should electronic filers receive a discount on the "filing fee" (to reflect the lower cost
to the court of processing an electronically filed case)? Should there be a surcharge
for paper filings?
Should electronic filing fees be the same in all federal courts?

49

Appendix E outlines the current authority for imposition of filing and other court fees.
Preliminary considerations concerning the costs that courts may incur in establishing ECF are addressed in
Appendix F.
50

This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

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If a separate, electronic filing fee is to be charged, should it be imposed specifically by
statute or by the Judicial Conference?
Should an electronic filing fee be a flat fee or should it be measured by the size of the
filing (based on transmission time or similar measure of volume)?
If "front end" costs of an electronic case file system are high, should electronic filing
fees be set high, initially, and then lowered after start-up costs have been paid? Or,
should any fee be set at a level that will amortize the costs over a reasonable period?
Or, should electronic filing be introduced "free" with disclosure that charges may be
established at some later date?
Who should be exempted from paying any electronic filing fee: The United States?
Agencies and programs funded from judiciary appropriations? Indigents within the
meaning of 28 U.S.C. § 1915?
Where should collections from the fee go: The Judiciary Information Technology
Fund?51 The Judiciary Information Technology Fund and earmarked for electronic
filing? The fund authorized for the operation and maintenance of the courts of the
United States under 28 U.S.C. § 1931?
What should be the policy with respect to electronic case file systems developed and
maintained by private vendors that bill separately for use of their systems?52
2. Methods of Collecting Fees
There are a large number of different approaches possible for collecting fees related to an
electronic case file system. The following short list is provided to illustrate some of the possibilities without going into detail:
•

secure credit card transactions over the Internet,

51

The “Judiciary Information Technology Fund” was formerly known as the “Judiciary Automation Fund.”
See 28 U.S.C. § 612.
52
If a court requires litigants to file documents by a method that necessarily involves the payment of a fee to a
particular third party, questions arise concerning both the authority to charge the fee, as well as the purpose of the fee.
Under 28 U.S.C. § 1914(b), for example, the district court clerk may charge only fees that are prescribed by the Judicial
Conference. See also 28 U.S.C. §§ 1930(e), 1926(b) (1994). The court would need to structure any arrangements with
a private company to avoid making the latter an agent of the court when charging fees for the company’s services.
This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

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•

traditional electronic payment methods linking EDI and electronic funds transfers commonly used in government procurements,

•

pre-funded accounts established with either the court, or more generically with a third
party, and

•

the current method of central billing in use for PACER.53

3. Funding the Transition to ECF
To date, electronic case files projects have generally been funded locally or underwritten
by commercial vendors that, in turn, charge subscription and user fees of their own. The Internetbased prototypes in the Northern District of Ohio, the bankruptcy court for the Southern District
of New York, and the District of New Mexico have received support from the Judiciary Information Technology Fund as well as local court budgets. These approaches to funding ECF systems
remain as possible options.
Starting with fiscal year 1997, the judiciary has greater freedom in the use of revenues
generated from electronic public access fees, which are deposited to the Judiciary Information
Technology Fund. The House and Senate appropriations committee reports on the Departments
of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1997,
includes language expressly approving use of these monies for electronic filings, electronic documents, use of the Internet, etc.54
E. Judiciary Resources
1. Need for Training
Educational efforts will be needed to acquaint users, both inside and outside the courts,
with the benefits of new technology and how to use it. In particular, the Administrative Office of
the United States Courts and the Federal Judicial Center should develop appropriate educational
programs that bring together court users and court systems staff to explore issues related to ECF.

53

The details of the possible approaches remain to be defined. One policy question is whether the court can
accept credit card payments and pay the credit intermediary a percentage of the fee for this service, or whether a surcharge might be required to use a credit card. Another is how to collect filing fees from pro se litigants (who might not
have access to credit cards or the other funding arrangements mentioned above), or from debtors filing bankruptcy. A
credit card charge for court fees incurred by a bankruptcy debtor might not be legally collectible absent a legislatively
created exception to the automatic stay of § 362 of the Bankruptcy Code.
54
S. Rep. No. 104-353, 104th Cong., 2d Sess. 87 (1996); H.R. Rep. No. 104-676, 104th Cong., 2d Sess. 89
(1996).
This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

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2. Effects on Court Staff
The transition to ECF will have a significant impact on court staff. It will highlight the
already existing need for operations staff to understand the underlying automation concepts that
make an ECF system function. Because less information will need to be entered manually, a docket clerk could focus to a greater degree on reviewing the accuracy of docket entries and checking compliance with procedural and format requirements. Chambers staff will need to learn to
search and review electronic files, rather than find and mark pages in a paper document or file. If
the Internet is part of the ECF environment, some understanding of how the Internet is used to
receive filings and provide proof of service may be necessary.
3. Staffing Requirements
Use of ECF applications will certainly create the opportunity, if not the need, for reassignment of work and resources in the court. It might even provide opportunities for staff attrition if
the budget situation should require that step. Staff time not spent reviewing paper files and typing
docket information, for example, might be spent performing quality checks on docket entries
made with information supplied by the litigants, verifying that the electronic file contains complete
and accurate information, and providing enhanced case management services to the bar and
bench. The file room staff may have fewer materials to file, distribute, mail and archive, but some
paper documents will still be filed and file room staff might be used to print material on demand or
support public inquiries for electronic information. Thus, while some current clerk’s office functions may disappear, and even a net reduction in total staff might occur, there will also be significant need for staff retraining and upgrading of responsibilities.
The transition to ECF will also intensify the courts’ reliance on their automation staff.
New systems and demands for services will require them to place increasing emphasis on hiring,
retaining, training and supporting highly qualified technical staff.
To the extent that an imaging application is utilized, the time for entering documents and
information at the time of case opening is likely to increase. This should be balanced, however, by
an overall savings in time by the users of the information who can call it up on a terminal and not
have to search for a file, or have to wait for the brief, motion, or other document to be routed to
them. Resources required to move the paper through the courthouse should also be reduced.
4. Potential Effects on Work Measurement Formulas
In the short term, implementation of any ECF activity should not significantly affect the
prescribed staffing formulas. Future assessment of those formulas should take into account the
changes in case processing caused by an ECF application. Since no workload-based staffing forThis paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

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mula applies to chambers staff positions, the impact of ECF would not be immediately reflected in
the policies on chambers staffing.
5. Facilities Issues
In the short term, implementation of ECF applications might reduce overcrowding in a file
room, reduce the need for routine archiving, and make space available for other purposes. The
amount of shelf space made available by reduced files storage may not lead to longer-term overall
space savings unless there is a major reconfiguration or relocation of an office.
Additional space required for ECF computer equipment should be minimal. If scanning
images is part of the application, some additional work space might be required to accommodate
new equipment. Likewise, additional space may be required for new public access terminals or
kiosks.
In some locations the availability of phone lines or access to the federal judiciary’s Data
Communications Network (DCN) may be an issue that must be resolved before experimentation
can begin. An ECF application can only be successful if all the judges and court staff can access
the system, and if the litigants and the public are provided reliable access to the filing and case
management systems.
F. System Integration and Telecommunications
1. System Integration
Electronic case files should be integrated with the courts’ electronic docketing and casemanagement systems. Integration or interoperation with jury, finance, probation/pretrial services,
and other court systems is important, but those systems traditionally have not been integrated and
the relationships among them are looser than with case management and docketing. Data and
ISA (Information Systems Architecture) standards should enable adequate interoperability between these systems. Also, the current trend toward greater compatibility among computer applications and hardware should facilitate integration or interoperation of court systems.
Over the past twenty years, electronic docketing and electronic case management have
been closely linked. The “legacy” electronic docketing systems—ICMS (civil and criminal),
BANCAP, NIBS (National Integrated Bankruptcy System), and AIMS (Appellate Information
Management System)—have provided both docketing and case management. Now, as they become available, it is clear that electronic case files are logically very closely tied to electronic
docketing because the chief purpose of docketing is to record entries of new documents into the
case file and an electronic format for those documents will aid in case management. Standards
This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

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should provide for adequate interface or linkage between electronic case files and the existing
docketing and case management systems. Because of the very close relationship among these
functions, however, greater benefit might be obtained by fully integrating electronic case file,
docketing, and case management applications as modular components of the same system.
a. Stand-Alone ECF System Linked to Case Management/Docketing System
Electronic case files could be maintained by a stand-alone system that builds linkages to
information extracted from existing docketing systems. This has been demonstrated in a number
of pilot experiments.55 In this approach, the electronic documents are stored in a database separate from docketing and case management information, but users can access case file documents
through familiar mechanisms such as viewing a docket sheet. From there, a simple mouse-click
on the docket entry will display the underlying document.
Such systems deliver most of the benefits associated with easy retrieval of case file information. But they do not provide the additional benefit of docketing information received as a byproduct of filing. In addition to storing the electronic document into the case files system and
establishing a link to the docketing system, court personnel must make the docketing entry just as
they have always done.
If this approach is followed, software should be devised to take data collected from the
filer (e.g., an attorney or a judge) and generate docketing information that can be automatically
submitted through a link to the court’s docketing and case management system. There have been
some successful experiments with limited automatic docketing to ICMS systems,56 but creating
software to accomplish this with a wide range of docket events may require substantial additional
development.
This linking approach utilizes the existing legacy case management/docketing systems. An
advantage might be that ECF can be implemented without developing new full systems; but a possible disadvantage is that this approach increases reliance on those legacy systems.
b. ECF Incorporated into Case Management/Docketing System
Incorporating electronic case files into a court’s case management/docketing system offers
all the benefits associated with easy document retrieval, plus at least some potential for “free” data
entry and docketing. The Internet-based filing systems in the Northern District of Ohio, Southern

55

For example, the pilots in the Southern District of Texas, Western District of Oklahoma (bankruptcy), and
District of Kansas (bankruptcy) include this feature.
56
The “Robo Clerk” in the Eastern District of California (bankruptcy) provides automatic docketing to ICMS.
This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

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District of New York (Bankruptcy Court), and District of New Mexico, along with commercial
products like CLAD and WestFile, suggest the viability of this approach.57 Such a system could
be acquired by enhancing/rewriting one of the prototype systems; developing a totally new system
based upon combined ECF, docketing, and case management requirements; or finding/commissioning a commercial product that meets those requirements. Depending upon the suitability of
existing prototypes, this approach might entail a major additional development undertaking. Selection of the best alternative(s) will depend on the ECF functional requirements ultimately developed.
Existing legacy case management/docketing systems could be phased out by switching to
a new system for all cases filed after a certain date. (In the electronic filing system for maritime
asbestos cases in the Northern District of Ohio, all actions filed on or after January 1, 1996 were
entered into the new system.) The legacy systems and the paper case files for its cases could continue in use for a few years until their volume declined to the point where it would be advantageous to convert the information and store it in the new system. Or, the legacy system could be
immediately abandoned with all case management/docketing information converted to the new
system. But it may be advantageous to maintain the paper case files for those converted cases
rather than trying to scan the full content of their files into electronic format.
2. Links
“Hyperlinks” are electronic pointers to additional sources of information that can be obtained simply by “clicking” the mouse on highlighted words or symbols. Depending on the context, the information source may be a different part of the same document, a related document in
the court’s computer, or a remote information source accessed via the Internet or some other network. These links can be quite useful in cross-indexing related information, or in referring to a
source of more information for an interested reader.
A link to an external source (such as an Internet “Web” site) may change or disappear between the time the document is created and the time it is viewed. This means that a judge or
other user of electronic case files who follows a link may see information different from what was
intended when it was created, or may find no information at all. For the same reason, links to external sources may pose problems for creating an official case file archive. Until these concerns
are resolved, it might be appropriate to limit links to information sources that are within the case
file system or other records that are under the court’s control.

57

It should be noted, however, that these prototypes provide “parallel” docket and case management functions. They do not link to the court’s existing systems.
This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

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An area for future exploration is the use of “active” citations that take the reader directly
to cited case law, statutes, and other legal authority. Citations could be hyperlinks to any provider of the particular information (for example, WESTLAW or LEXIS-NEXIS). It should be
kept in mind, however, that access to legal research through these active citations may be limited
to authorized subscribers if proprietary services are the designated information source.
3. DCN and Internet
It is clear from a security perspective that isolation of the federal judiciary’s DCN from the
Internet is a major consideration. Outside users who gain access to the electronic case file system
by modem or the Internet should not be able to obtain access to the DCN and court systems
through the ECF interface.
It is also clear that maintaining electronic case files will increase the load on the DCN.
Most of this increased load will be local, and the high speed local area network will probably be
capable of supporting these requirements, particularly if local networks can be segmented to isolate some of the network traffic. The question of using the wide area network for transfers of
electronic case files between courts and divisional offices should be evaluated to determine
whether the current capabilities will support the anticipated traffic.
Serious attention must also be given to bandwidth requirements (i.e., the capacity of a network to carry multiple and/or complex transmissions simultaneously). The architecture for providing Internet access to all courts needs definition, and the architecture chosen will affect bandwidth requirements. For example, will there be a central source for Internet access, which implies
a potential bandwidth bottleneck, but simpler security and management? A central Internet access
point may also affect DCN bandwidth requirements.
G. Transition to ECF: Acceptance by the Courts, the Bar, and the Public
Successful implementation of electronic case files in the federal courts will require acceptance and cooperation by courts, attorneys, litigants, and interested members of the public.
This section briefly notes several issues that will affect the transition to ECF.
1. Judges
Some judges may not believe that ECF will benefit their court, and many may decide
to continue using paper documents and files in chambers and the courtroom. Although judges must be afforded both access to the ECF environment and the support
and training that would enable them to use the new systems effectively, hands-on usThis paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

Case 1:16-cv-00745-ESH Document 52-3 Filed 08/28/17 Page 57 of 63

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[Discussion Draft]

A Preliminary Examination of Goals, Issues, and the Road Ahead

age need not be mandatory. ECF should be made available to all judges who wish to
take advantage of it, but judges who wish to continue using paper copies of file documents in their work should be accommodated.
2. Court Staff
Pilot projects and experiments should continue with courts that are willing to participate in a national effort to assess various approaches to ECF.
If a court's current system is functioning adequately, there may be limited enthusiasm
for a major or painful overhaul. On the other hand, if a court's current system is being
overwhelmed, there will likely be a willingness to try a new system out of necessity (as
the bankruptcy courts did in the recent past).
Electronic filing technology will require change to the court’s business processes related to case file information.
3. Bar/Litigants and Public
Users may have initial reservations about the system, notably in the areas of reliability,
security, and access. Education and good systems implementation should alleviate
these concerns.
Practitioners’ enthusiasm for using the system may depend upon several factors:
(1) their current use of technology; (2) the compatibility of the court’s system and
their system (if any); (3) the perceived costs of using the system (training and equipment); (4) the perceived benefits of using the system (eliminating messenger services,
docketing staff, and travel); and (5) the reaction of their clients. By adopting solutions
that have gained or are likely to gain broad national acceptance, the federal courts can
encourage compliance by those court users and potential users who have not yet developed the requisite technology on their own.
Government agencies may be affected by the same factors, along with three others:
(1) the burdens of their own caseload; (2) the reaction of the people who appear before them; and (3) any new statutory requirements (e.g., the “Electronic Freedom of
Information Act” amendments) or policy initiatives (e.g., the National Performance
Review) that require them to keep records in electronic form.
Information security will be a paramount concern for all parties, and some users may
be hesitant to put confidential information into the system. The answer to this concern
This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

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Electronic Case Files in the Federal Courts

[Discussion Draft]

43

may come in improvements in encryption technology, and the availability of multiple
levels of encryption (e.g., “public”, “court-only”, “chambers-only”).
H. Special Considerations
At each court level, there are distinguishing factors (differing types of case file users, procedural steps, or modes of operation) that raise unusual or unique issues or otherwise call for differential treatment in the development of electronic case file systems. As the judiciary moves
ahead to evaluate possible approaches to ECF, pilot projects and experiments should be used to
test alternative methods for addressing these factors in each type of court (district, bankruptcy,
appellate) in which they may arise. The following are just some of the special circumstances that
should be taken into consideration.
1. Sharing of Case File Information Among Multiple Users
Technological and work processes that facilitate sharing of care file information are necessary whenever more than one judge or court has a simultaneous need to use the same file. Examples include cases that are assigned concurrently to a district judge and a magistrate judge, and
when multiple judges require access to documents presented to a court of appeals panel, a threejudge district court, or a bankruptcy appellate panel. Likewise, a district judge and a bankruptcy
judge may need to use the same bankruptcy case file where there are appeals of certain issues to
the district court while the case is pending in the bankruptcy court.
2. Access to Related Information Outside the Court’s Case File
Some information is routinely used by court staff but is not a part of the public case file.
For example, district court judges periodically receive reports from pretrial services and/or probation officers that become part of a criminal case file. (Indeed, the pretrial services office often
creates the first documents for the criminal case file within its own file system, and its files may
remain separate from those of the district court itself). In the bankruptcy context, proceedings
involve questions of estate administration and include claims by and notices to creditors and other
interested parties, as well as conventional litigation documents. United States Trustees, case
trustees, and bankruptcy administrators are additional participants (and case file users) that are
not involved in other types of federal court actions. At the appellate level, the courts handle files
from district courts and other courts in the judicial branch, and also from federal agencies and
Article I courts (e.g., the U.S. Tax Court) that are not part of the federal judiciary.

This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

Case 1:16-cv-00745-ESH Document 52-3 Filed 08/28/17 Page 59 of 63

44

[Discussion Draft]

A Preliminary Examination of Goals, Issues, and the Road Ahead

3. Availability of Files for Geographically Dispersed Judges and Staff
The fact that appellate judges work in panels of three or more, and that they are likely to
be in separate cities, creates a challenge for communication and dissemination of case materials.
In some cases, the case files are routed from one chambers to the next. In others, the district
court file is only sent to the judge authoring the opinion, or is not requested from the district court
except in limited circumstances. Motions, briefs and other information are often sent simultaneously to all panel members. The issue of remote access to files also arises for judges at all levels
of the judiciary who do not sit at the central court location.
4. Special or Unusual Documents, Proceedings, and Users
Certain types of cases are, by their nature, particularly time-sensitive or require special
handling due to the circumstances of the litigants involved. Examples of these proceedings might
include death penalty cases, prisoner civil rights litigation, and some other categories of pro se
cases. Similarly, as discussed above, particular items in a case file may require special treatment
or procedures due to the format in which they are created or the manner in which they are used by
the parties or court personnel (the case file charts included in Appendix D identify some of these
special factors). Also, it may be necessary to address in ECF system design or procedures the
needs of users with disabilities or other circumstances affecting their ability to utilize electronic
case files.
V. Interim Technical Standards and Guidelines
The new federal rules amendments authorize federal courts to establish local rules under
which documents can be filed, signed, and verified by electronic means, provided such means are
consistent with technical standards, if any, established by the Judicial Conference of the United
States. The Committee Note on amended Civil Rule 5(e) explains that national technical standards for electronic filing “can provide nationwide uniformity, enabling ready use of electronic filing without pausing to adjust for otherwise inevitable variations among local rules. . . . Perhaps
more important, standards must be established to assure proper maintenance and integrity of the
record and to provide appropriate access and retrieval mechanisms.”
Interim technical standards and guidelines have been circulated among the judiciary and
potential filers for purposes of eliciting comments and suggestions. They are reprinted in Appendix B of this paper. After comments are received and evaluated, the proposed standards and
guidelines will be considered by the Committee on Automation and Technology, which may forward them to the Judicial Conference for consideration and possible adoption at its September
1997 session.

This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

Case 1:16-cv-00745-ESH Document 52-3 Filed 08/28/17 Page 60 of 63

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[Discussion Draft]

45

The proposed technical standards are intended as mandatory requirements that courts
choosing to permit electronic filing must implement in order to comply with the amended rules.
They focus primarily on ensuring the “integrity of the record” and providing a capability for filing
which is at least as good as existing paper systems. The proposed technical guidelines, on the
other hand, are not intended to be mandatory requirements, but rather recommendations for experimental use subject to further evaluation. They focus on promoting “nationwide uniformity” of
electronic filing across the courts.
The proposed technical standards are offered as guidance to those courts that may choose
to implement electronic filing in advance of action by the Conference. Some courts have already
begun experimenting with electronic filing using approaches that pre-date the proposed standards.
The standards propose that such courts be permitted a two-year transition period to come into
compliance with the established national standards.
VI. Conclusion
The purpose of this paper is to initiate discussion—among judges and court staff and, ultimately, with the bar and other interested parties—and encourage concerted (national and local)
action to effect a transition from paper-based to electronic case files in the federal courts. Though
several courts are developing and testing possible systems and applications, such efforts will
achieve the greatest success if there is judiciary-wide leadership in exploring alternatives and tackling the many issues that will have to be resolved. With broad participation, minimum national
standards can be established to guide individual courts toward the most efficient and cost-effective approaches that meet local and national needs. This paper, which suggests some of the possibilities and suggests a general approach, is only the beginning of that process.

This paper was prepared by staff of the Administrative Office of the United States Courts, with substantial assistance from judges and court
staff, to aid the deliberations of the Judicial Conference of the United States and its committees. The ideas expressed in this paper do not
necessarily reflect the policies of the Conference or any committee thereof, any court of the United States, or the Administrative Office.

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Case 1:16-cv-00745-ESH Document 52-3 Filed 08/28/17 Page 62 of 63
ELECTRONIC CASE FILES STUDY PROJECT
Committees of the Judicial Conference of the United States
Hon. J. Owen Forrester, GA-N
Hon. James Robertson, DC*
Hon. J. Rich Leonard, NC-E(B)*
Hon. John Lungstrum, KS

Chair, Committee on Automation and Technology, and Project Sponsor
Project Liaison, Committee on Automation and Technology
Project Liaison, Committee on Court Administration and Case Management
Project Liaison, Committee on Court Administration and Case Management

Administrative Office of the United States Courts
Executive Oversight
Leonidas Ralph Mecham
Clarence A. Lee, Jr.
Noel Augustyn
Peter McCabe
Pamela White

Director
Associate Director for Management & Operations
Assistant Director, Office of Court Programs (OCP)
Assistant Director, Office of Judges Programs (OJP)
Assistant Director, Office of Information Technology (OIT)

Judiciary Automation Umbrella Groups
Terence Dunn, Oregon(B)*
Hon. Dennis D. O Brien, MN(B)*
Robert Shemwell, LA-W*
George Lange, 2d Cir.*
Daniel Martin, NC-E

Project Liaison, Bankruptcy Case Management and Statistics Umbrella Group
Project Liaison, Courtrooom and Chambers Umbrella Group
Project Liaison, District Case Management and Statistics Umbrella Group
Project Liaison, Appellate Case Management and Statistics Umbrella Group
Project Liaison, Probation and Pretrial Services Umbrella Group
Project Management

Gary Bockweg, OIT
Cecilee Goldberg, OJP
Mary Stickney, OCP
Jeffrey Hennemuth, OJP
Robert Deyling, OJP
William Lucianovic, OJP

Project Manager
Associate Project Manager
Associate Project Manager
Editor
Editor
Research Coordinator

Work Group Members
Janice Arias, OIT
Gary Bowden, OCP
Timothy Cadigan, OCP
Gordon Carver, OIT
Patricia Channon, OJP

Bruce Curran, OIT
Mary Fritsche, OCP
Karl Gerdes, OCP
Michael Greenwood, OIT
Karen Hanchett, OJP

Pamela Lightfoot, OCP
Diddi Mastrullo, OJP
Alan McMann, OCP
Bonnie Miller, OCP
Mary Louise Mitterhoff, OCP

John Ours, OIT
Frederick Russillo, OCP
David Scott, OCP
James Wannamaker, OJP
Daniel Wexler, OIT

Court Contributors
(Focus Group Participants, Consultants, Previewers)
Ross Anderson, KY-W
Hon. Ronald Barliant, IL-N (B)
Hon. James Barta, MO-E(B)*
Hon. Dennis Beck, CA-E*
Hon. Richard A. Belz, FL-N
Hon. Mark Bennett, IA-N*
Hon. William Bertelsman, KY-E
Hon. Susan Black, 11th Cir.
Anthony Bonfanti, 5th Cir.
Hon. Celeste Bremer, IA-S
Russell Brenner, KS(B)
Kathy Brouwer, 2nd Cir.*
Hon. Tina L. Brozman, NY-S(B)
Cameron Burke, ID
Cathy Catterson, 9th Cir.
Hon. Deborah Chasanow, MD
Hon. Robert Cindrich, PA-W
Donald Cinnamond, OR
Geraldine Crockett, IN-S

Terry Cox, 4th Cir.*
Robert Dennis, OK-W*
Jerry Denslinger, TX-S*
Hon. Rebecca Doherty, LA-W
Molly Dwyer, 9th Cir.*
William Eggemier, 6th Cir.*
Hon. Ronald Ellis, NY-S
Hon. Leif Erickson, MT
Hon. Lisa Hill Fenning, CA-C(B)
Michael Gans, 8th Cir.*
John Greacen, NM(B)*
Hon. Michael D. Hawkins, 9th Cir.
Richard Heltzel, CA-E(B)*
Debbie Hirshberg, FL-S*
Sheila Jacoby, AL-S*
Hon. Elizabeth Jenkins, FL-M
Hon. Larry E. Kelly, TX-W(B)
Hon. Cornelia G. Kennedy, 6th Cir.
Mark Langer, D.C. Cir.

Hon. Burton R. Lifland, NY-S(B)
Wendy Lonsdorf , NJ *
Hon. Keith Lundin, TN-M(B)
Robert March, NM
Hon. John S. Martin, NY-S*
Hon. Blanche Manning, IL-N
Hon. Roderick McElvie, DE
Hon. Tucker Melancon, LA-W
Michael Milby, TX-S*
Cecelia Morris, NY-S(B)
Karen Moss, 1st Cir.
Hon. Geraldine Mund, CA-C(B)*
Mark Neer, CA-C
Hon. Nancy Nowak, TX-W*
John E. Panek, 7th Cir.
Hon. Jim D. Pappas, ID(B)
Hon. John Porfilio, 10th Cir.
Lloyd C. (Sonny) Ray, Jr. TN-M(B)
Bruce Rifkin, WA-W

Carol Ann Robinson, MO-E(B)
Anthony San Giancomo, NY-N*
Barbara Schemerhorn, 10th Cir.*
Hon. Harvey Schlesinger, FL-M
Hon. Joanna Seybert, NY-E
Geri Smith, OH-N
Hon. Jerry Smith,5th Cir.*
Jay Stevens, FL-M
Carl Stewart, FL-M(B)
James Waldron, NJ(B)
Hon. Donald E. Walter, LA-W
David Weaver, OH-N
Mark Wells, TX-S
Robert Wily, VA-E(B)*
David Young, 5th Cir.*
Markus Zimmer, UT
* indicates focus group participant

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