May 06, 2019 Top Story

Revised Federal Rules Focus on E-filing

Appellate rules changes focus on disqualification of judges from amicus briefs

By Andrew J. Kennedy

On December 1, 2018, thirty years after the Judicial Conference of the United States first established its Public Access to Court Electronic Records (PACER) system, the Federal Rules of Procedure have made a significant step towards complete electronic filing of papers.

PACER has allowed the federal system to make a significant step towards the electronic filing of papers

PACER has allowed the federal system to make a significant step towards the electronic filing of papers

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The changes affect both the civil rules and appellate rules. While ABA Section of Litigation leaders welcome the changes, they do caution that some of the changes could trip up the unwary.

Civil Rules Embrace E-filing

Under revised Rule 5 of the Federal Rules of Civil Procedure, service can now be accomplished by e-filing in addition to all of the other methods. Parties represented by an attorney are now required to e-file all papers, unless the court or local rules require otherwise, whereas unrepresented parties must still file by paper. Moreover, under the revised civil rules, documents filed using the judiciary’s Case Management/Electronic Case Files (CM/ECF) system do not require a certificate of service.

In contrast, the appellate rules still retain the proof of service requirement, even for documents filed using the court’s CM/ECF filing system. However, in September of 2018 the Judicial Conference on Rules of Practice and Procedure proposed modifying appellate Rule 25 to eliminate the need for proofs of service for papers filed using the ECF system where all counsel are registered users of the system. If approved, that would bring the appellate rules in line with the civil rules.

Section of Litigation leadership embraces these changes. “The federal system’s record for each case shows all the lawyers in the case that have consented to electronic filing as service in that case; any lawyer can, and should, check the electronic case file to be sure that all other attorneys have consented,” observes Steven F. Finell, Santa Rosa, CA, cochair of the Rules and Statutes subcommittee of the Section’s Appellate Practice Committee. And, while the revised rule has dispensed with the need to file a proof of service for ECF-filed documents, Finell warns, there are exceptions. “The rules still require proof of all means of service other than through the court’s electronic filing system, including service by email or other electronic means. Without such proof of service, the court has no way of knowing whether proper service was timely made.”

Even with this change, some leaders believe that keeping the proof of service remains a good practice. “I still have a certificate of service on papers that I have served by ECF,” says Jane K. Gleaves, Columbus, OH, co-vice-chair of the Newsletter Subcommittee of the Section’s Young Advocates Committee. “I think it provides a comfort level and quality assurance. When a party has not made an appearance, the certificate of service shows that the paper was properly served.”

Appellate Rules Suggest Caution for Amici

Like the civil rules, revised appellate Rule 25 creates a default procedure that requires represented parties to e-file and unrepresented parties to file on paper. While that change is not controversial, revisions to Rule 29 are sparking some dissent. Revised Rule 29 now provides that “a court of appeals may prohibit the filing or may strike an amicus brief that would result in the judge’s disqualification.”

This change raises some concerns. “I question the wisdom or necessity of disallowing an amicus curiae brief because it would cause a judge’s disqualification,” says Finell. “Some amici curiae file so-called Brandeis briefs, which present empirical data or technical information that is not readily available to most parties or to the court. And sometimes, where a party’s brief is lacking, an amicus curiae brief can fill a void. No circuit is so small that disqualifying one judge, or even a few judges, would impose a hardship.”

Electronic Notice for Class Actions

Another, possibly more sweeping, change applies to class actions. Revised Civil Rule 23(c)(2)(B) now allows notice to class members by “electronic means or other appropriate means.” Under current Supreme Court precedent “first class mail is ordinarily the best notice practicable in most cases. But in some situations you may not have mailing addresses, or for some other reason, mailing may not be practicable” observes Irwin H. Warren, New York, NY, cochair of the Section’s Federal Practice Task Force.

While the revision may change that, the principle behind Rule 23 has not changed. “The new language in the rule does not excuse the principle of using the best notice practicable,” says Warren. “But it acknowledges that there may be different means of notice that are best, depending on the case and circumstances. It’s an effort to accommodate new technology and the many ways people get communications. The point of the change is to eliminate the concern that new technology might not pass muster. It should make everyone ask the question: what method is the best notice practicable, either alone or in conjunction with others,” Warren explains.

“In this area, we are already seeing courts wrestle with how to transmit notice to class members,” observes Gleaves. “I recently represented a defendant in a FLSA case in which the plaintiff wanted to serve notices to the class by text and by email. A text is stripped of contextual clues that it is legitimate. In that case, the court allowed notices to be provided by email.”


Andrew J. Kennedy is an associate editor for Litigation News.

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