CAFC: Electronic Filing of Briefs

The Federal Circuit has proposed amendments to its local rules that will require electronic filing of briefs and appendices:

These rule changes would require the filing of a digital version of every brief and appendix filed by a party represented by counsel, unless counsel certifies that submission of a brief or appendix in digital format is not practical or would constitute hardship. The requirements for the filing of paper copies of the briefs and appendices would continue unchanged. Comments must be received by the close of business on February 16, 2007.

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7 thoughts on “CAFC: Electronic Filing of Briefs

  1. 7

    My most recent joint appendix would have been a piece of cake for efiling. Granted, it was very small (about 400 pages). Still, because the N.D. of Cal. is an efiling district, almost every page of the joint appendix was already in PDF format. I had to scan about 20 pages, which didn’t take much time. It was just a matter of collecting them all into one file.

    I have submitted my strong support for this proposal to the court. I’ve also suggested that the court create a small online library of exemplary briefs, mostly for use by pro se litigants. The CAFC could present these briefs not for their substantive positions, but rather their clarity, persuasiveness and compliance with applicable rules.

    Such briefs would be much more useful to pro se litigants than just the abstract FRAP and CAFC rules.

    The danger of this, of course, is that the pro se’s will see that what we advocates do isn’t really that complicated; we just know the special lingo and formats to use.

  2. 6

    I did not interpret “hardship” to mean financial, but rather meant an unwieldly or infeasible filing.
    My last brief was filed on CD-ROM, with hyperlinks in the argument to pages in the appendix, or to copies of caselaw. That hyperlinked version was not a file that could be reformatted as a pdf (as far as I know).
    Thus, if my client could not afford the (1) “unchanged” requirement of paper briefs & appendices, (2) a CD-ROM brief, and (3)an electronically file-able brief and appendix, then they are disadvantaged in relation to a client who can afford all of this. The cost is particularly high if the client has to buy a trial transcript, and pay someone to scan selected pages into a pdf format, etc., etc.

  3. 5

    1. I think we can all agree that it is long overdue for the Court to require the efiling of briefs — this has been going on in many district courts for years. In fact, in the last two appeals I have worked on, both sides agreed to voluntarily exchange PDFs of the briefs to make each of our lives’ easier. In the second appeal, we even agreed to exchange the files as “saved PDFs” as required by proposed Rule 31(f)(5).

    2. The appendixes are another matter. Creating a “saved PDF” brief results in a relatively small file (my blue and yellow briefs in the above example were in the 200K-400K range). By contrast, a scanned appendix will be huge — the appendix will have to be scanned for the most part, resulting in larger files regardless of the page count.

    Proposed Rule 31(f)(6) requires the filing of a “single PDF” file. That won’t work for the appendixes in most cases. Most of the district courts using efiling have a 5MB limit on a single PDF, making the proposed rule inconsistent with the existing technology. So I agree with Jim Uschold’s comment on this point.

    Dennis, is this worth a format comment to the Court?

  4. 4

    I like electronic filing in the trial court because you save the costs and inconvenience of making copies and serving other parties. The downside is it can take a long time to file/upload motions with lots of exhibits, especialy when a document has to be broken into several smaller files to meet the court’s file-size restrictions.

    If an 800- or 8000-page appendix has to be broken into smaller files with each uploaded separately, this propoosal is a very bad idea which creates more work with no reward.

    I recently needed to send a file too big to email to co-counsel in another state. I used dropload.com. I uploaded to their site, they email my co-counsel that a document is there, and he goes to the site to download.

    It the court sets up a similar system where the entire file can be uploaded to the court at one time (even if that upload takes a while), the system can work.

    By the way, what do you do with physical exhibits and/or oversize exhibits like blueprints, etc?

  5. 3

    1) In response to Lee’s comments. I have found that most electronic filing is not expensive as long as your attorney is somewhat tech-savvy. If the electronic filing is successful, I suspect that there may be some relaxation on the paper filing requirements — thus resulting in reduced costs.

    2) The court should be applauded for its excellent approach to posting PDF versions of opinions promptly and for making them freely available. One problem has been that briefs have not been available. With electronic filing, the briefs will likely become immediately publicly available. (I’m happy to help the Court set this up if it would like assistance.)

  6. 2

    Mr. Thomason, do you think that this provision provides insufficient protection?

    “unless counsel certifies that submission of a brief or appendix in digital format is not practical or would constitute hardship”

    This language suggests like the court would generally take counsel’s word for it.

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