April 2013 | Disaster Prep: Special Issue
Before Disaster Strikes: What Law Firms Should Know About Case Management and Electronic Case Filing
Hurricane Sandy offers important lessons about business continuity management (BCM) and information and communications technology (ICT) management for lawyers, law firms, and parties to litigation. This article describes the federal court system’s case management/electronic case filing (CM/ECF), and what law firms should know about CM/ECF replication and failover services in advance of a disaster. Such knowledge will help lawyers and law firms avoid potential loss of client communication, loss of clients, loss of revenue and competitiveness, loss of data and unintentional disclosures, and claims for damages due to negligent acts and omissions.
Sandy caused widespread chaos throughout the Northeast and put the region and federal court system in its worst operational crisis since the 9/11 terrorist attacks, although, nationally, the impact of Hurricane Katrina in 2005 was more widespread and longer. Sandy struck at the most densely populated region in the United States. At the affected federal courthouses in New York and New Jersey, the principal problems were lack of electrical power and, in two instances, the lack of steam heat too. Four Manhattan courts were mostly closed to the public for a week, opening only for a few emergency hearings. The U.S. District Court in Brooklyn had power, but no telephone or Internet. Camden’s federal courthouse remained open to the public but the courthouses in Newark and Trenton were closed for a week due to lack of power, telephones and access.
The region’s telecom service providers had problems as well; 25 percent of the wireless cell towers were out of action after Sandy and some 911 emergency call centers were reportedly not working. Also, power outages would disrupt more cell sites as they ran out of back-up power before commercial electricity services were up and running again.
Hurricane Sandy was the costliest hurricane in U.S. history. During Sandy, judicial officers and employees experienced lack of power and sporadic wireless services at their residences and lacked access to court facilities as a result of flooding and blocked tunnels and roads. However, in advance of Sandy, the federal courts invested in resiliency to protect information and communications technology. Warned of Hurricane Sandy’s approach, IT managers in the federal courts in New York, New Jersey and elsewhere temporarily switched over the local courthouse’s IT systems to their replication sites. During the crisis, the IT systems closely monitored and reported new case filing activity. The graph and table below depict the impact of Hurricane Sandy on new electronic case filings in the U.S. Court of Appeals for the Second Circuit and three judicial districts.
Figure 1: Graph and Table (Source: Administrative Office of the U.S. Courts)
The data makes clear that, while the federal court replication servers permitted electronic filings to continue during the temporary closures of court facilities, new filings during the week of Sandy dropped precipitously and remained at a lower level in the week after Sandy. This suggests strongly that power outages, flooding and lack of access that forced the courthouse closures did not deny electronic access to CM/ECF for lawyers, parties and the public. However, facing the same severe conditions at their own offices and homes, many lawyers, parties and the public were not able to continue their electronic access for more than two weeks, even though CM/ECF replication was fully functioning.
The electronic data suggests that some law firms need improved ICT readiness for business continuity programs. Hurricane Sandy’s impact on ICT throughout the Northeast may have had greater negative implications for small and medium law firms than for larger firms that could use resources at other locations. Lawyers at single locations can be devastated by extended downtimes caused by a large storm or cyber interference. Anecdotally, a few practitioners in Sandy’s path described removing the servers from their law offices before Sandy struck, and taking them home. During extended ICT disruptions, lawyers lose communications with clients and are unable to work in their normal office environments, eliminating their access to electronic files, data and research tools. Unless they are better prepared, they are unable to communicate and conduct business as usual.
Case Management/Electronic Case Filing (CM/ECF)
Federal courts use CM/ECF for electronic filing of documents with the appellate, district, bankruptcy courts, and the U.S. Courts of Federal Claims and the Court of International Trade. (www.uscourts.gov/FederalCourts/CMECF/AboutCMECF.aspx). CM/ECF documents may be found via the Public Access to Court Electronic Records (PACER) system. PACER can be accessed at (www.pacer.gov) or via federal court homepages. CM/ECF keeps out-of-pocket expenses low, gives concurrent access to case files by multiple parties, and offers expanded search and reporting capabilities. CM/ECF offers the ability to immediately update dockets and make them available to users, file pleadings electronically with the court, and download documents and print them directly from the federal court system. (www.uscourts.gov/FederalCourts/CMECF/FAQs.aspx).
Calendaring and Docket
A majority of federal courts use CM/ECF for calendaring and docket completion. In most instances, should any of these systems be disabled during an incident, the affected court will switch or “fail-over” to a replication server hosted by the Administrative Office of the U.S. Courts. In all incidents, the courts will designate an internal representative (or representatives) to ensure that proper scheduling takes place. They will perform this function manually if necessary.
Law firms should follow regular scheduling procedures set forth in federal and local rules. If CM/ECF systems do not work, attorneys should follow instructions posted on the court’s website or specified in court rules. For local websites, many courts use a hosting option for local website replication sponsored by the Administrative Office.
Thanks to extensive pre-planning efforts, the federal courts have procedures for prioritizing and continuing litigation. In general, depending on the type of court and respective types of cases heard, law firms can expect the following:
Criminal: Any cases which need to be heard immediately because of their seriousness and significance, and where the accused is being held in custody, will be set in front of a judge without unnecessary delay. Procedural rules permit initial appearances via video conferencing, if defendants consent. Courts have contingency plans and agreements with other courts to rapidly move hearings to other physical locations. Most other criminal hearings may be delayed up to one year while the courts exercise contingency plans and begin reconstitution efforts.
Bankruptcy: Emergency hearings in bankruptcy courts are rarer. Some, but not all, bankruptcy courts have procedural rules permitting holding evidentiary hearings via teleconferencing or video conferencing. Also, some bankruptcy courts have contingency plans and agreements with other courts to rapidly move hearings to other physical locations. All other bankruptcy matters will be delayed indefinitely while the courts exercise other contingency plans and begin reconstitution efforts.
Civil: Any cases which need to be heard immediately because of emergency situations will be set in front of a judge. Courts have contingency plans and agreements with other courts to rapidly move hearings to other physical locations. All other civil matters will be delayed indefinitely while the courts exercise other contingency plans and begin reconstitution efforts.
Appeals: Courts of appeals will focus only on emergency matters which invoke immediate issues of life, liberty and irreparable harm.
CM/ECF Replication/Failover Services
Federal courts set a high priority on the continuity of critical business functions, particularly in situations where physical access to a courthouse is denied. In a disaster, if the court’s local CM/ECF system is disabled; the affected court will switch or “fail-over” to a replication server hosted by the Administrative Office. Law firms will notice no difference in the way they file. In a disaster that causes a federal courthouse to close, law firms should use their regular electronic filing procedures. Courts have local rules and will post instructions on their websites for reporting filing problems.
At federal courthouses, hardware, communications and/or power failures may cause the failure or inaccessibility of a court’s local CM/ECF system. In these rare instances, judges, lawyers and the public will rely on the ready availability of CM/ECF replication. In most instances, U.S. courts have the option for providing alternate service: a temporary switch or “failover” to another server at a replication site. The replication servers allow judicial personnel, lawyers and the public to continue with full CM/ECF operations remotely until this IT service at the courthouse is restored.
Replication Servers Duplicate the Court’s CM/ECF Environment
Every entry made to a federal court’s CM/ECF database (a new case, a docket entry, or a data edit) is simultaneously copied to a “replication database” at a facility operated by the Administrative Office. A court’s replication database resides in one of the replication sites which “mirror” the servers in courthouses. Those servers hold the CM/ECF database and case documents that have been stored on the court server’s file system.
Replication provides a backup of the complete CM/ECF application, not just the court’s data. The server which stores the replication database has the same software environment that exists on the local court’s server, which allows users to notice no differences nor lose any functionality during a fail-over. A monitoring program checks every 15 minutes on the replication and ongoing procedures, including redundant back-ups processes. This enables federal courts and replication facilities staff to resolve replication failures and synchronize if necessary. While a variety of circumstances involving servers and communication lines can cause CM/ECF to be unavailable to its users, failures generally fall into the following categories:
In any of these conditions, replications facility servers will give access to CM/ECF to users.
Be Flexible and Diligent
In all cases, it is the duty of each lawyer to regularly check the court‘s website for information and special instructions. If law firms deal with any urgent criminal or family issues, they need to remain flexible and be ready to travel to appear in court as needed. Other matters, such as civil cases, courts may allow for a longer delay in response. Regardless of any adverse circumstances or disastrous effects, lawyers must represent the client competently and diligently, safeguard client’s property, and maintain client confidentiality and communications. These obligations are neither excused nor waived following a disaster.
George B. Huff, Jr. is an attorney advisor in the Administrative Office of the U.S. Courts and is a member of the ABA Special Committee on Disaster Response and Preparedness.
LAW PRACTICE TODAY
Micah U Buchdahl, HTMLawyers, Inc
Andrea Malone, White and Williams LLP
BOARD OF EDITORS
John D. Bowers, Fox Rothschild LLP
Margaret M. DiBianca, Young Conaway Stargatt & Taylor, LLP
Nicholas Gaffney, Infinite Public Relations, LLC
Nancy L Gimbol, Eastburn & Gray
Richard W Goldstein, Goldstein Patent Law
Katy M. Goshtasbi, Puris Image
William D Henslee, Florida A&M Univ College of Law
Allison C. Shields, Legal Ease Consulting, Inc.
Gregory H. Siskind, Siskind Susser, P.C.
Send us your feedback here.