TrueFiling comes to the Second District Court of Appeal

Perhaps the title of this post should be the other way around: The Second District Court of Appeal comes to TrueFiling. Although the The Second District has had e-filing for some document sin place for several years, it appears to be the last appellate court in the state to embrace e-filing of everything via TrueFiling.

With the upgrade come some new formatting requirements that were previously only suggestions. Electronically filed documents must now include electronic bookmarks to “to each heading, subheading and component of the document, such as the table of contents, table of authorities, petition, verification, points and authorities, declaration, certificate of word count, certificate of interested entities or persons, and proof of service.”

The full rules area available in the Electronic Formatting Requirements and Guidelines of the Second District (the “rules”). As the name suggests, some things are mandatory, others are not. The rules include a “style manual” of sorts with recommendations for fonts, margins, line spacing, and text alignment, among other things. Curiously, some of these guidelines advise noncompliance with the rules of court. For example, rule 8.204(b)(5) states that “lines of text must be unnumbered and at least one-and-a-half-spaced,” but paragraph 8 of the guidelines suggests line spacing of 1.2 lines. My guess is that 99.9% of people aren’t going to care about these differences, but they will drive the other 0.1% nuts.

Use of TrueFiling becomes mandatory in the second district on October 30, 2017.

Mandatory e-filing in the California Supreme Court is imminent – learn the rules!

image courtesy of clker.com

The California Supreme Court adopted voluntary e-filing this summer, but e-filing will become mandatory on September 1, 2017. The court uses the TrueFiling system, which I have found to be rather user-friendly.

The Supreme Court’s e-filing rules are available in PDF format on the court’s website, and they are extensive. Some highlights: [Added 9/6/17: do not rely on this summary to ensure your compliance with the rules. Reference the rules on the court’s website, which may change form time to time without such changes being noted in this blog post.]

♦E-filing becomes mandatory on September 1, 2017, even for cases initiated prior to that date. (Rule 3(b).)

♦As in many other courts, self-represented litigants are exempted from mandatory e-filing. (Rule 4(a)(1).) But attorneys may also seek an exemption. (Rules 3(a), 6.) I am hard-pressed, though, to imagine how an attorney would meet one of the stated grounds for exemption: undue hardship, significant prejudice, or infeasibility. (Rule 6(b).) Perhaps the unavailability of a broadband internet connection would render e-filing infeasible?

♦[Added 9/6/17: the rules for paper copies have already been modified. See the 9/6/17 update below.] Two bound paper copies of documents must still be provided in civil and non-death penalty cases, and quite promptly (sent by means reasonably calculated to reach the court by the close of business the second court day after the electronic filing, and only one day after filing in cases requesting an immediate stay). (Rule 5(a).) That is a disappointment, but there is still far less paper to handle than there is with paper filings. In a death penalty case, the filer only has to send in one paper copy, has more time to send it, and does not have to bind it. (Rule 5(b).)

♦PDF documents must have bookmarks to separate sections, argumentative headings, etc. (Rule 10(a)(3).) Though the rules do not appear to require it, it is probably a good idea to format each heading in your table of contents with a hyperlink to the corresponding page in the document, as the Fifth District Court of Appeal requires.

I find the rules ambiguous in one respect. Rule 3(a)(1) lists one category of documents that must be filed electronically:

Documents in proceedings under rules 8.500-8.552 [of the California Rules of Court]
All documents filed before the court issues its decision to grant or deny review, including:

[enumerated documents]

(Italics in original, bold added.) Even though rules 8.500-8.552 of the California Rules of Court cover proceedings subsequent to a grant of review and all the way through issuance of the remittitur, Rule 3(a)(1) appears to require electronic filing only for the documents filed prior to the grant of review. Under this strict reading of the rules, briefs on the merits do not appear subject to mandatory e-filing, which seems like an odd omission. Why reference all of those rules if e-filing is mandatory for documents filed pursuant to only some of them? It is important to resolve the ambiguity, because a filer may electronically file only those documents specifically identified in the rules (Rule 2), unless otherwise ordered by the court (Rule 3(a)(3)). In other words, e-filing is either mandatory or prohibited for a given document. Perhaps there is a standing order that covers this under Rule 3(a)(3), but it seems odd not to make it explicit in the e-filing rules themselves. [Added 8/21/17: briefs on the merits and other post-grant filings appear to be deliberately omitted from e-filing. See the update below.]

Regular readers know I am not a fan of reading legal documents on a screen. But e-filing sure makes filing easier, and also makes it easier to keep my office organized.

Still, electronic filing could be improved by some uniformity. Some is on the way, such as the anticipation that all districts of the Court of Appeal will have e-filing through TrueFiling implemented by November of this year. It could also be improved be eliminating the need for any paper copies, including copies served on subordinate courts. E-filing in the Court of Appeal has long satisfied the requirement of service on the Supreme Court, and the uniform use of TrueFiling this November should make it possible to e-serve any Court of Appeal with documents e-filed in the Supreme Court. Electronic service on superior courts statewide would be nice. Electronic service on subordinate courts would be even nicer if it happened automatically upon e-filing in the filing court.

Update (8/21/17): The ambiguity regarding post-grant documents kept gnawing at me, so I asked a few colleagues what they thought, which led me to last June’s news release about the Supreme Court’s adoption of e-filing. It says in part:

The court will adopt detailed eFiling Rules in June and remain open to opportunities to enhance the program in the coming year. The court will employ a phased approach to the launch of its eFiling program.

That suggests this is a “grow as we go” implementation, and that my reading is correct: for now, briefs on the merits and other post-grant documents, as well as documents in writ proceedings, cannot be e-filed.  They may be submitted electronically, but the electronic submission is in addition to required paper filing copies, not a substitute for them.

Update (9/6/17): Some of the rules have already been modified. Notably, the requirements for submitting paper copies (Rule 5) have been relaxed.  Whether a death penalty case or not, only a single, unbound paper copy is required, and it need no longer reach the court within two court days; depositing the copy in the mail or with a common carrier within two court days of filing now suffices, unless the filing party is seeking a stay, in which case the paper copy must reach the court “by the close of business the next court day after the document is filed electronically.”

There may have been other changes, but I do not have the original version of the rules against which to check the current version. As always,. rely on the official rules, not the commentary in this blog post.

How flexible is that midnight electronic filing deadline in federal court?

The witching hour approaches (Image courtesy of publicdomainpictures.net)

When I was a young lawyer, my mentor told me, “Practice law as if the rules will always be strictly enforced against you but will never be strictly enforced against the adverse party.” Wise words.

Last week I posted about a party that applied for a 15-minute extension of time to file its documents with the federal district court in Ohio because of some technical difficulties it encountered with the electronic filing. In doing so, it lived out the first half of my mentor’s adage, as it did not assume that it would get a break of even 15 minutes without explicitly requesting such relief.

In Hyperphrase Technologies, LLC, et al. v. Microsoft Corporation, a patent infringement case in a Wisconsin federal district court, Microsoft electronically filed its summary judgment motion about 4-1/2 minutes after the midnight deadline, and did not complete uploading the supporting papers until 1:11 in the morning. Microsoft did not ask for an extension, thus ignoring the rule to “practice law as if the rules will always be strictly enforced against you.”

Hyperphrase moved to strike Microsoft’s summary judgment motion as untimely. The magistrate judge had great fun in his order denying the motion to strike:

Microsoft’s insouciance so flustered Hyperphrase that nine of its attorneys, [listed by name], promptly filed a motion to strike the summary judgment motion as untimely. Counsel used bolded italics to make their point, a clear sign of grievous iniquity by one’s foe. True, this court did enter an order on June 20, 2003 ordering the parties not to flyspeck each other, but how could such an order apply to a motion filed almost five minutes late? Microsoft’s temerity was nothing short of a frontal assault on the precept of punctuality so cherished by and vital to this court.

I’m hardly the first blogger to note this 14-year-old order, and many people have no doubt gotten a good laugh from it. Allow me to be a killjoy and inject some seriousness.

At first glance, it might appear that Hyperphrase ignored the rule to “practice law as if the rules . . . will never be strictly enforced against the adverse party.” But did it?  This adage does not mean that a lawyer should ignore rules infractions by the other side, only that a lawyer should weigh the seriousness of the infraction within the context of the case before committing the client’s money to an effort to make the adverse party pay a price for that infraction.

I suspect Hyperphrase’s lawyers made that analysis, and the decision to move to strike was carefully considered rather than a reflex reaction. This was a patent infringement action against Microsoft targeting two of Microsoft’s flagship products, Word and Excel. There had to be many millions, perhaps hundreds of millions of dollars, at stake. Would you not at least be tempted to move to strike the summary judgment motion as untimely? Would you let the risk of looking silly stop you from taking every conceivable step to get the case in front of a jury? And even if you were reluctant to move to strike, how do you think your client, with many millions of dollars on the line, would react to you saying you would not move to strike the motion because you did not want to look petty? Maybe the magistrate judge had a reputation for being a stickler on timeliness. Finally, maybe Hyperphrase’s attorneys believed the motion would be impossible to beat on the merits and saw the motion to strike as the only reasonable shot at derailing it. (The district judge granted the motion.)

Consider also this occurred in 2003, when electronic filing was relatively new. (I don’t believe mandatory electronic filing was in place in California until a few years later.) With little or no history to go on, who knew how strictly the midnight deadline would be enforced? If one hour and eleven minutes past midnight is OK, how about 2 a.m.? 3 a.m.? The judge is almost certainly still in bed at those times, and the courthouse is still hours from opening. At what point is tardiness inexcusable?

There are judges who take untimely filing, even by a matter of minutes, seriously. Since you never know how your judge will view it, perhaps the safe course is to ask for an extension when your filing will be even a few minutes late and to move to strike anything of significance filed late, even if it is just by a few minutes.

If you have experience with missed electronic filing deadlines (in either federal or state court) in the early morning hours, please share your story in the comments.

The 15-minute filing extension, brought to you by the era of midnight electronic filing deadlines

The witching hour approaches (image courtesy of publicdomainpictures.net)

When I was in law school, my wife was an assistant to a department head in an environmental consulting firm. Frequently, when I asked her what kind of day she’d had at work, she would respond that the scientists had made her day nuts by working on a project proposal at the last minute, forcing  the support staff to scramble like mad to make the FedEx deadline (usually 5 p.m. for those of us on the west coast). After hearing this a lot, I asked — with great naivete — “Has anyone ever considered getting the project done before the last minute?”

Then I got to my Big Law firm, and saw that a lot of the work product going out the door faced the same last-minute rush. I remember conference calls with co-counsel and/or clients suggesting competing changes to drafts an hour before they had to be sent electronically to another office, where they would be printed for filing (this was the early 90s, long before electronic filing).

With mandatory electronic filing in federal courts (and some state courts), lawyers now have the “luxury” of midnight filing deadlines, which means, naturally, that many lawyers are now working up to a few minutes before midnight on their filings. Sometimes it’s procrastination, other times perfectionism, but I doubt it is uncommon.

Which brings me to the request for the 15-minute filing extension, filed just after midnight by attorneys suffering technical difficulties with their electronic filing. In granting the extension, the court  asks “Why are we waiting until the eleventh hour?” and describes filing practices employed “in the old days” (which, in terms of technology in law offices, really weren’t that long ago). The 1-1/2 page order is well worth a read.

Second District Court of Appeal to implement TrueFiling e-filing system in late 2016

Screen Shot 2015-08-20 at 11.46.15 AMAccording to a notice I received today from the California Appellate Project:

The clerk of the 2nd District Court of Appeal has asked us to inform the panel that True Filing will be available in this district beginning in November.  For two months, November and December, True Filing will coexist with the present eFiling system presently being used in the district.  The choice of which to use will be yours.  Then, in January, the present eFiling system will disappear, and everyone will be required to use True Filing.  Those of you already working in other districts with True Filing will definitely have a leg up on the rest of us.

That last sentence is certainly true. TrueFiling takes some getting used to.

The Second District’s present e-filing system has the advantage of being free, but it is also not a pure e-filing system. Hard copies of briefs still had to be submitted to the court. Also, original proceedings (writ petitions) cannot be initiated electronically under the current system, but I have initiated original proceedings via True-Filing in other districts.

You can’t stop progress. But I still hope the justices print out my briefs before reading them.

Update (09/25/2017): From the “better late than never” department. TrueFiling becomes mandatory in the Second District Court of Appeal on October 30, 2017. I shouldn’t joke. The Second District has always generously granted me extensions, it’s about time the court got one.

Some technical help for e-filing in the Court of Appeal

Screen Shot 2015-08-20 at 11.46.15 AMThis week, the Second District Court of Appeal published a terrific guide for creating electronic documents. (PDF link) The guide is broken down into a section on briefs and a section on appendices, and is meant as a technical guide, not a set of rules for filing. It is thus helpful regardless of the district your appeal is in.

The guide provides the nitty-gritty detailed steps, with illustrations, for creating, editing, and formatting documents for electronic filing, including instructions for safely and securely redacting information, adding bookmarks, and making scanned documents text-searchable, among other things. Unfortunately, instructions on hyperlinking have been deferred to a future edition.

I wouldn’t quite call it Electronic Filing for Dummies, though it will be helpful even for those who don’t know a PDF from a DOC and think Adobe Acrobat is a circus performer. I consider myself pretty tech-savvy on PDF creation and manipulation, and I still learned from it.

I think the guide will be particularly helpful for solos, who don’t always have the staff to handle the tech side of things and must rely on a DYI approach. However, the use of Adobe Acrobat, the PDF application used in the guide, can be cost-prohibitive for solos on a budget (though I believe it is now available through a monthly subscription). Keep in mind that there are alternative, less expensive PDF applications that can probably do everything you need for electronic filing, including PDF Pen for the Mac and Nitro Pro for the PC. (I have used both, but I am not endorsing either of them. Both offer free trials, so you can be sure they do what you need before purchasing.) I use Acrobat now because it came free with my Fujitsu ScanSnap scanner (an awesome piece of hardware).

Don’t forget that e-filing practices are not uniform throughout the state. Always check the particular procedures for your district. But this guide should help you no matter where you practice.

A hat tip to H. Thomas Watson of Horwitz & Levy for getting word of this out through the L. A. County Bar Association Appellate Courts Section listserv.