Electronic Filing at Federal Circuit

If you are filing a Federal Circuit appeal, beware that the court will soon require Electronic Case Filing. The initial filing (i.e., case initiating documents) will still be done on paper, but after May 17, 2012 any subsequent filings (such as responsive briefs and petitions) must be done electronically (with some exceptions).

Except as otherwise prescribed by Circuit rule or court order, all briefs, appendices, motions, petitions for rehearing, and other documents filed in cases assigned to the CM/ECF system, must be filed electronically using the CM/ECF system by a filer registered in accordance with ECF-2.

Comments on the new procedures are dues by May 8, 2012. [New Procedures]

23 thoughts on “Electronic Filing at Federal Circuit

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  2. Yeah! When I filed my first opening brief in January I was surprised that I could not electronic file. I was sufficiently surprised that I queried the clerk as to whether I could use paper and ink or were they still requiring chisel and stone briefs. I managed a chuckle with that statement, which was my intent.

  3. meh said …

    > My point is that the inequality is de minimis.

    It is de minimis to you because you are not affected by it. (Not an admirable quality in a human being.)

    >I’m also not sure that it’s unequal. Pro se’s also get the benefit of liberal construction of their pleadings, being excused from most of the court’s formal requirements for briefs, and not having to do the pesky hyperlinking discussed in the comments above. Attorneys don’t have the option of proceeding under the pro se rules.

    1. As a pro se (both as Plaintiff and Defendant) I have been held to every jot and every tittle of every rule, no matter how obscure, unclear, or inconsistent the rule is. The rules even say that I will be. Many rules seem to be passed on from attorney to attorney by oral tradition. I do not have that benefit.

    But I have seen attorneys blatantly ignore the rules, move that the rules be waived for them, and have their motion granted.

    2. About pesky hyperlinking. It is my experience that the computer skills possessed by attorneys are not any greater than those of the general population, including grade school students.

    > As for the reasons, I’m not entirely sure. I suspect that it has something to do with abusive filings by pro se’s.

    I have seen abusive filings by attorneys, too.

    What difference does it make if an abusive filing is filed electronically or on paper?

    > Attorneys have an interest in remaining in good standing with the court. If attorneys file abusive pleadings, they can be sanctioned and prohibited from practicing before the court in the future. If practicing before courts is your job, then that’s a sanction with actual teeth and helps to keep attorneys in line. Pro se’s, on the other hand, aren’t often repeat litigants, and don’t have as much of an interest as attorneys in retaining their filing privileges.

    1. As a pro se I also have an interest in remaining in good standing with the Court. (I don’t want to lose because of a technicality or by summary judgment.)

    2. If pro se’s don’t come back it may be because they find out that the Courts will not give them a fair hearing. (How many pro se parties have ever completely won at CAFC?)

    > This is just my speculation. I have no idea what thought process, if any, went into the rules. I just disagree that it sends a “very LOUD and very CLEAR message that the CAFC discriminates against pro se parties.” Treats them differently? Yes, just as nearly every court does. Discriminates against? No; not in my opinion anyway.

    I will refrain from comparing opinions to something else which everyone has.

  4. Folks, if we’re going to present patent case appeals to the Federal Circuit, we should be able to figure out this whole hyperlinking thing. We’re supposed to have the larger-than-average brains among federal court litigators.

  5. My point is that the inequality is de minimis.

    I’m also not sure that it’s unequal. Pro se’s also get the benefit of liberal construction of their pleadings, being excused from most of the court’s formal requirements for briefs, and not having to do the pesky hyperlinking discussed in the comments above. Attorneys don’t have the option of proceeding under the pro se rules.

    As for the reasons, I’m not entirely sure. I suspect that it has something to do with abusive filings by pro se’s. Attorneys have an interest in remaining in good standing with the court. If attorneys file abusive pleadings, they can be sanctioned and prohibited from practicing before the court in the future. If practicing before courts is your job, then that’s a sanction with actual teeth and helps to keep attorneys in line. Pro se’s, on the other hand, aren’t often repeat litigants, and don’t have as much of an interest as attorneys in retaining their filing privileges.

    This is just my speculation. I have no idea what thought process, if any, went into the rules. I just disagree that it sends a “very LOUD and very CLEAR message that the CAFC discriminates against pro se parties.” Treats them differently? Yes, just as nearly every court does. Discriminates against? No; not in my opinion anyway.

  6. You haven’t addressed the issue.

    Why shouldn’t pro se parties have equal access to the Court?

  7. I’d missed this bit about mandatory hyperlinking and wonder where it comes from. My first impulse is to think “the arbitrary and capricious clerk’s office strikes again,” but I’m not so sure.

  8. pro se filings are generally scanned and uploaded to ECF. and anyone with a pacer password can get “access” to things already on the docket.

  9. I’m with anon on this. Hyperlinking is a royal pain. It’s perhaps for that reason that when the Federal Circuit allows CD-ROM briefs, those get filed at the same time as the joint appendix.

    This basically creates more work for paralegals and associates and more business for outside vendors. I don’t know of any other court out there (which isn’t to say that there aren’t any) that requires this hyperlinking.

  10. Their Rules prohibit pro se parties from using CM/ECF.

    As a result, pro se parties will be denied equal access to the Court.

    This is a very LOUD and very CLEAR message that CAFC discriminates against pro se parties.

    The only way to fix it is to either allow pro se parties to use CM/ECF or, in a case with a pro se party, prohibiting “everyone” from using CM/ECF.

    (Attorney pro se parties might also be prohibited from using CM/ECF. They don’t seem to have considered the possibility that an attorney might act pro se.)

  11. If you’re often pushing up against word limits, you might take a more critical look at what you’ve written. Perhaps a lot of what you have is redundant or of marginal use. My personal target is to use around 2/3 of the permitted words. I can hold the reader’s attention only so long; I want that attention focused on my best arguments.

  12. What is the point of linking to pacer when you already have the appendix? Why would I want to pull up a 25 page motion or whatever when I could use the exact page cite provided to the appendix?

  13. Doesn’t help me out. They send their compendium of materials cited when they give me their brief anyways as part of the process for creating the final joint appendix.

    Usually cites are the last thing to get finalized in a brief. So now this is just more time tacked on at the end of the process. I guess that’s the trade off for not having to wait for the printers and being able to file midnight EST. I’ve seen other courts of appeal permit hyperlinks, but this is the first court which I am aware of which requires it.

    Also, they are requiring both hyperlinks and normal appendix cites, i.e. JA1234 (“standard citations must be provided in addition to any hyperlink. For example, hyperlinks to a PACER available document must be immediately preceded by a standard citation to the appendix.”). What does that mean? Well, at least an extra word burned per cite (under Fed. Cir. rules re: automatic word counting), which means less words for your actual brief.

    I also think the Fed Cir. is the least useful Court for this rule to be in given what a large percentage of cases the Fed. Cir. has that much of the material is under seal and therefore can’t be linked to on PACER. Plus the rule doesn’t help/say anything about ITC cases or PTO appeals.

  14. I don’t see that as a lot more work. It’s something you learn how to do, and then it’s very easy after that. Plus, you get the benefit of that hyperlinking when you’re reviewing the other side’s brief.

  15. This sounds fun (where fun = a lot more work preparing briefs):

    Electronically filed documents, except appendices, are required to include hyperlinks to any cited materials available on PACER as part of the record of proceedings in the case being appealed and to any addendum or attachment to the document being filed, with the exception that hyperlinks may not be used to link to sealed, restricted, or confidential documents or materials.

  16. How was that quick? It took billions of years to get a federal circuit of the united states that has ECF on our planet.

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