Waters v. Drake et al

Filing 64

ORDER - Within five business days, the party on whose behalf 63 Motion for Leave to File Corrected Annotated Privilege Log was filed shall submit, as appropriate, either an identical document with a name handwritten or submit the document by electronic means. Signed by Magistrate Judge Terence P. Kemp on 9/3/2015. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Jonathan N. Waters,

:

Plaintiff,

:

v.

:

Case No.

2:14-cv-1704

:
Michael V. Drake, M.D., et al.:

JUDGE JAMES L. GRAHAM

Defendants.

Magistrate Judge Kemp

:
ORDER

This order is being issued to address a problem with the way
in which Doc. #63 has been signed.
Signing documents that are filed with the Court is governed
by Fed.R.Civ.P. 11.

That rule states, in pertinent part, that,

in cases in which a party is represented by an attorney, “[e]very
pleading, written motion, and other paper must be signed by at
least one attorney of record in the attorney’s name.”

It also

permits the Court to strike an unsigned paper “unless the
omission is promptly corrected after being brought to the
attorney’s or party’s attention.”

Fed.R.Civ.P. 11(a).

The

signing requirement is important for, among other reasons, the
representations that accompany it concerning the basis for the
claims, defenses, or statements made in the paper being filed,
see Fed.R.Civ.P. 11(b), which, if untrue, can lead to the
imposition of sanctions against the filer under Rule 11(c).
Rule 11 does not directly define what is meant by “signing”
a pleading, motion, or paper.

Fed.R.Civ.P. 5(d)(3) provides that

a court “may, by local rule, allow papers to be filed, signed, or
verified by electronic means that are consistent with any
technical standards established by the Judicial Conference of the
United States.”

With the advent of electronic filing, most

courts have adopted procedures which address this issue for

electronically-filed documents.

S.D. Ohio Local Civil Rule 83.5

states that “[t]he actual signature of a Filing User [defined as
an attorney or party registered to file documents under the
Court’s Electronic Case Filing system] shall be represented, for
ECF purposes, by ‘s/’ followed by the typed name of the attorney
or other Filing User” and that such a “signature” is “equivalent
for all purposes including Fed.R.Civ. P. 11 or any other rule or
statute, to a hand-signed signature.”

The Court presumes this is

a valid rule, although in Becker v. Montgomery, 532 U.S. 757, 674
(2001), the Supreme Court held that while local rules on
electronic filing “provide some assurance ... that the submission
is authentic,” Rule 11(a) still requires “as it did in John
Hancock’s day, a name handwritten (or a mark handplaced)” and
that a typewritten signature did not comply with the rule.
Nevertheless, there is authority that a local rule which
specifies that use of the electronic filing system by an attorney
who is a registered user constitutes the signing of a document
for purposes of Rule 11(a).

See, e.g., E.E.O.C. v. Dolgencorp,

LLC, 2011 WL 1260241 (M.D. N.C. March 31, 2011); United States v.
Sodders, 2006 WL 1765414 (N.D. Ind. June 21, 2006).

This Court’s

electronic filing policies make an attorney responsible for all
documents filed with his or her password, and that assures the
Court that if a document is submitted from that attorney’s
account, there is an actual person who is responsible for the
filing’s content.
The “assurance” which is provided by the filing of a
document using a registered filer’s electronic account and
password, however, is not present when a document is manually
filed with only a typewritten “signature.”

Notwithstanding the

fact that the Court’s Electronic Filing Policies and Procedures
Manual, in Section I(A), requires all documents to be filed
electronically “unless otherwise permitted by these policies and
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procedures or unless otherwise authorized by the assigned judge,”
some attorneys who are registered for electronic filing still
submit documents for manual filing.

Sometimes, as in the case of

a document to be filed under seal, that is necessary.

When that

occurs, however, the document has not arrived at the Court
electronically through an account to which only a registered user
(who can be identified) has access; rather, it has simply
appeared at the counter in the Clerk’s office.

Although the same

Policies and Procedures Manual, at Section II(C)(2), provides for
the same “s/” signature format as Local Civil Rule 83.5, it does
so only for documents which are “filed electronically or
submitted on disk to the Clerk’s Office.”

To the extent that

this procedure appears to authorize a typed signature on a
document submitted on disk, because, again, any person (and not
just the registered filer) can bring a disk containing a document
with a typed “signature” into the Clerk’s office, the lack of
assurance that the document is actually being filed by a
registered user who is vouching for its content and for
compliance with Rule 11(b) raises an issue about whether such a
policy is consistent with Rule 11(a) as interpreted in Becker v.
Montgomery.
In this case, a document has been filed manually which bears
only a typed “signature” of an attorney.
arrive by electronic means.

The document did not

The Court therefore lacks the

assurance provided by that method that the document was prepared
and authorized by the attorney whose name appears in typewritten
form on the document’s signature line.

Without such assurance,

the signature requirement of Rule 11(a) has not been satisfied.
Therefore, within five business days of the date of this order,
the party on whose behalf the document (#63) was filed shall
submit, as appropriate, either an identical document with a “name
handwritten” or submit the document by electronic means.

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The

failure to do so may cause the Court to strike the filing.
/s/ Terence P. Kemp
United States Magistrate Judge

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