A Brave New Appellate E-World
Since the mid-1990s, advances in technology have transformed the world in which we live. Due to security and confidentiality concerns specific to the legal profession, courts and practitioners alike have been hesitant to modernize their procedure and information systems on a whim. However, after years of careful deliberation, the focused development of secure systems, and proven results, Florida’s courts have joined the electronic age. As of January 2015, courts in Florida use one of three different Web-based electronic filing (e-filing) applications. Florida’s state courts use either the Florida Courts E-filing Portal (ePortal) or the eDCA, and federal courts in Florida use the Case Management and Electronic Case Files system (CM/ECF).1 While a fully electronic court system will ultimately prove more cost effective and efficient, it is an emerging standard that has unsurprisingly caused practitioners some confusion, to date. This article aims to quell some of that confusion by providing to the practitioner information about the various e-filing, e-service, and eRecord systems available in Florida courts today.
Electronic Filing in Florida State Courts
Florida’s state court system has long embraced technological advances to increase access to courts, functionality, and efficiency.2 In 2004, Florida’s state courts began developing the infrastructure and policies to support an electronic case management system. 2012, the Florida Supreme Court formally adopted mandatory e-filing procedures, subject to a graduated implementation schedule.3 As of 2013, e-filing became the mandatory method of filing in each of Florida’s courts.4 It should be noted that the mandatory procedures apply only to “non-confidential” information.5 Due to these efforts, Florida state courts enjoy the most advanced and straightforward e-filing systems of any state.6
• The Florida Courts E-Filing Portal7 — The Florida Supreme Court, Florida’s Second District Court of Appeal, and most of Florida’s circuit and county courts use the Florida Courts E-Filing Portal (ePortal).8 Florida’s ePortal provides e-filing and case management capabilities to registered users with a single statewide login.9 The ePortal operates under the rules and standards set forth by the Florida Supreme Court (in consultation with the Florida Courts Technology Commission),10 and is governed by the Florida Courts E-Filing Authority as overseen by the Board of Directors, which is comprised of eight circuit court clerks and the clerk of the Florida Supreme Court.11
Attorneys who are members of The Florida Bar, those who are admitted pro hac vice or are employed by the Department of Justice and represent the U.S. in a case in Florida, or are self-represented (pro se) litigants may register for ePortal.12 Florida registered paralegals may also register for and use an account created by the attorney for whom they are filing.13 In order to register as a filer with ePortal, a registrant must have a Florida Bar number (or pro hac vice credentials), at least one email address, and a username and password. Upon registration, the filer will receive an activation link via email.14 There are no fees to use the ePortal (other than those already existing statutory filing fees) and such fees can be paid using most major credit cards or electronic checks.15
There are a number of beneficial features on the ePortal. For example, appellate practitioners using the appellate court filing path enjoy a “Work Bench” feature, which allows the filer to save and later access a potential filing prior to submission; this feature is currently unavailable for those using the trial court filing path.16 E-Filings are accepted and dated for submission until 11:59:59 p.m. on the day filed. The filing date is the date of receipt by the ePortal, which along with the time of filing, is electronically affixed along the top of the first page of the filing. Registered users may check on the status of a filing or determine whether a document has been filed by accessing the “My Filings” page, which provides the filing number, case style, court case number, status, court in which the document was filed, submission date, and a completion date or remarks.
There are several ePortal document submission standards the practitioner should bear in mind when preparing documents to be attached to filings. For example, the ePortal supports three document types: Microsoft Word document, Word Perfect, or PDF, and briefs must comply with the type size as set forth in Fla. R. App. P. 9.210. Formatting standards require that documents be 8 1/2 by 11 inches (or, if in excess, arrangements should be made to transmit digitally through some other acceptable means) and have a blank three-by-three-inch space at the top, right-hand corner on the first page and one-by-three-inch space at the top, right-hand corner of subsequent pages to accommodate filing dates/time stamps, contain one-inch margins, be electronically signed when possible, submitted in black and white, and be scanned at a resolution of 300 DPI.17 Each pleading should be uploaded individually, ADA compliant, 25MB or under (if over, the document must be separated into multiple documents under 25MB each), and all metadata must be removed.18 Documents containing confidential or sensitive information filed in a case that has not already been classified a confidential case must be accompanied by a Notice of Filing Confidential Information.19 Deviation from the ePortal guidelines could result in delay of the process or rejection of the filing.20 In the event of such a deviation or technical failure, the clerk will identify any document sent to “Pending Cue” due to a deficiency and annotate the underlying deficiency in the completion date/remarks column of the “My Filings” page.21
• Electronic Service Through ePortal — Florida’s ePortal provides an optional method of electronic service (e-service) for its users, though traditional service or service via email are also permissible.22 Service may be timely made up to 11:59:59 p.m. on the date the filing is due. Documents served via e-service, whether through email or ePortal, enjoy the same five-day additional computation-of-time period as documents served through the traditional mail.23
Service through this feature has been deemed to comply with the rules.24 Filers have the ability to edit service lists through e-service: they may designate up to three email addresses for e-service receipt, add another attorney or interested party to the list, request to be removed from the service list, or update their information for e-service.25 This feature includes a pre-populated service list based on the names and email addresses of those attorneys who have electronically filed documents in that case.26 The filer may select individuals from the pre-populated list, select all recipients, or select all recipients and then deselect individual recipients and is responsible for ensuring that all persons entitled to service have been properly served.27 Because the pre-populated list contains only those people who have already filed a document in the case, the filer should independently review the service list to determine whether additional persons need be included on the service list. To locate other registered users for inclusion on the e-service list, a filer may elect to search the ePortal database, The Florida Bar via ePortal, or enter the contact information manually.28 Affixed to each filed document should be a traditional service list and certificate of service.29
In the event of a technical failure or bounced email, the filer is responsible for resolving the issue.30 Documents that must be served, but not filed, are ineligible for e-service. For example, a proposal for settlement or discovery response(s) must be served on the parties, but not filed with the court. Under those circumstances, the filer is responsible for serving the parties through an alternate method.31 A party seeking to be exempted from e-service or e-filing requirements must file a motion with the court in the specific legal matter in which the exception is being requested.32
• eDCA — Florida’s four other district courts of appeal currently use the eDCA Portal (eDCA),33 a Web-based electronic portal for use by attorneys and the public to access and file documents and access the complete digital repository that stores every filed document in every pending case to which the attorney is a party. 34 Initially, the First District Court of Appeal spearheaded an eDCA workers’ compensation pilot program designed to, in part, increase efficiency and reduce costs associated with such appeals. Spurred on by the pilot program’s success, the First District Court of Appeal later required eDCA use in all cases.
Users must obtain secure access to the server by registering on the eDCA website. To do so, the registrant will need a Florida Bar number and at least one email address. Practitioner’s should not wait until the last minute to register, as the clerk’s office of the district court in which he or she intends to file documents must first review and approve the registrant before releasing filing credentials, which may delay the filing process.35 The filer will receive an email confirming account activation.36
Upon account activation, the registered user has access to a list of all cases to which the attorney is a party, including a detailed case page for each case and the docket, including digital copies of each filing. Registered users may file documents on the system and view those documents that have been accepted, are pending, or have been rejected by the court and an accompanying annotation explaining why the document was rejected. Each time a document is filed, the CaseMail feature automatically generates email notifications to alert the user and these emails may be forwarded to anyone (in accordance with state law). This feature allows the attorney to quickly disseminate important case information to the client. Electronic filings are deemed received by the court on that day if filed by 11:59 p.m. Filings submitted after that time are deemed filed on the following day.
Electronically filed briefs and appendices must comply with the requirements enumerated in Florida Rules of Appellate Procedure 9.100, 9.210, 9.370, and 9.220. On eDCA, registered users may also access and read briefs from any case available as determined by statute and appellate rules.37 Another benefit to eDCA is the ability to e-file the docketing statement, which may be saved and later completed if the filer is unable to complete the form in a single session.38
To file a document on eDCA, the filer must have the case number (unless it is a new case), document type (numerous options are provided in a drop-down menu), document subtype (options are provided in a drop-down menu based on the document type selected), and a PDF of the document to be filed. Once submitted, the filer will receive a confirmation email and later an email detailing whether the document was accepted or rejected by the clerk’s office. Registered users are also able to immediately update their contact information with the court.39 For ease of access, each district court of appeal website has a link to the district-specific eDCA portal.
Electronic Record on Appeal in Florida Courts
Effective October 15, 2015, an electronically transmitted record on appeal also will be mandatory in Florida.40 In 2012, the Florida Supreme Court amended Fla. R. App. P. 9.200 to permit electronic transmission of the record on appeal.41 Encouraged by the success in the district courts that elected to require electronically transmitted records on appeal, the Florida Supreme Court amended sua sponte Rule 9.200 to implement mandatory statewide electronic records on appeal.42 The court made a number of significant amendments to Rule 9.200, defining the electronic record standard and outlining the clerk’s responsibilities. Several notable changes to the rule include removal of the requirement that each volume of the record on appeal be divided into consecutively numbered volumes of no more than 200 pages, and the addition of language requiring the clerk to transmit consecutively paginated (consistent with the index of the transcript of trial) trial transcripts in a text-searchable PDF separately from the remainder of the record on appeal, which must also be transmitted in a consecutively paginated (consistent with the index), text-searchable, bookmarked PDF format.43
Electronic Filing in Federal Courts in Florida
• The Case Management and Electronic Case Files (CM/ECF) System — Since 2005, most federal appellate, district, and bankruptcy courts have permitted electronic filing and service and made available electronic records.44 Thus, most practitioners are familiar with electronic filing, service, and records in federal courts. For those who have not yet practiced in federal court, CM/ECF is an electronic case management and filing system — run as a joint program of the Administrative Office of the United States Courts and the federal courts — that uses current technology and new software to increase court functionality and efficiency.45 Each court offers training on how to use CM/ECF. Many courts have also developed user manuals or FAQ sections on their respective websites.
The federal rules of procedure authorize individual courts by local rule to permit or require e-filing, and also authorize e-service (contingent upon consent of the parties). Note that these amendments do not apply to service of process. Consequently, most courts have issued a local rule authorizing and a corresponding order detailing that particular court’s e-filing or e-service procedure(s).46 Due to privacy concerns, the rules and the system require that filers redact personal identifier information (such as Social Security or tax identification numbers) from filings and further acknowledge their responsibility to redact such information each time they log-in to CM/ECF.47 CM/ECF is a secure system that employs two utility programs to verify the integrity and continued authenticity of filed documents.
In its current form, the CM/ECF system provides to attorneys, parties, the judiciary, and the public, a cost-effective way to access, view, or file case documents at any time from any location. Several other beneficial features include 1) electronic notice upon the filing of a document to each registered attorney; 2) the ability to file documents 24 hours a day, seven days a week without additional fees; 3) the ability for the parties, attorneys, and court to simultaneously view filed documents; 4) automatic docket entry and updated docket sheet information upon the filing of a document; and 5) automatic and immediate email notification containing a hyperlink to the filed document (free of charge) and docket sheet upon the filing of a document.
In order to file documents on CM/ECF, one must register with and obtain filing credentials from the federal court in which one seeks to file such documents. Each federal court determines to whom it will issue filing credentials.48 Most federal courts permit attorneys, U.S. trustees, and bankruptcy case trustees to electronically file documents, while other federal courts also permit bankruptcy claimants and other pro se litigants to file electronically. 49
The filer must have a computer, document scanner, PDF compatible word processor, software to convert a Word document to a PDF, Web browser, Adobe Acrobat Reader, and Internet service. Those seeking to file documents in a federal appellate court must also have the Java 1.6 plug-in. Documents must be filed in PDF format. Due to current electronic preservation challenges, it is anticipated that CM/ECF will soon require that all documents be filed in PDF/A format, which is designed to better preserve electronic documents than the current PDF format. 50
• The Future of CM/ECF: Next Generation — Although CM/ECF has revolutionized the way federal courts and practitioners manage their cases and documents, the federal judiciary will transition to the Next Generation (NextGen) of CM/ECF over the next few years.51 NextGen is intended to improve efficiency and integration among the appellate, district, and bankruptcy systems; achieve greater consistency; collect more case-related statistics; and be able to share data with other judiciary systems.52
The Administrative Office staff, 30 court staff, and an expert panels of judges and court staff have combined their efforts to develop and implement the program. After identifying and prioritizing more than 400 functional requirements, NextGen software streamlines the federal e-filing process in a number of ways.53 Several anticipated features include a revised attorney filer interface, central sign-on capability that allows the filer to use a single login and password for all NextGen courts, and a workspace module that allows court staff to consolidate different views of case data in a single interface.54
As of 2014, the Second Circuit Court of Appeals and the Ninth Circuit Court of Appeals have already served as pilot courts for the program. The Second Circuit transitioned to NextGen in October 2014, and the Ninth Circuit began its transition that same month. The remaining courts of appeals were set to schedule their adoption of the software throughout 2015. NextGen is expected to roll out to a small number of district and bankruptcy pilot courts as well.55
• Public Access to Court Electronic Records (PACER) — In the midst of technological advances and innovation, the Judicial Conference of the United States approved Public Access to Court Electronic Records (PACER) in September 1988. PACER provides the public with a way to access and view court dockets and documents, subject to any court orders, policies, limitations, or exceptions stating otherwise, at any time. Its full potential became clear in the late 1990s, with the first testing of case management/electronic case files. Since 1999, most case files have been maintained electronically and may be accessed through PACER.56 Anyone with a PACER account may search and locate appellate, district, and bankruptcy court case and docket information. To access a file through PACER the user is subject to a fee of 10 cents per page, with a maximum charge of $3 per document.57 Transcripts and court dockets are excepted from this limitation.58 Paper filings that predate 1999 may be accessed from the court when the case was filed or for an additional fee at one of the federal records centers.59 Such documents may be viewed for free and printed for a fee of 10 cents per page at the courthouse.
Florida’s courts have officially entered the electronic age. At this point, many practitioners have used at least one of the aforementioned applications to electronically file or manage documents, and each application or court that uses the application provides training manuals or videos on their websites. Taking the time to familiarize oneself with each application and the anticipated changes to each electronic system will save practitioners unnecessary delay, expense, and frustration.
1 Electronic filing (e-filing) is a way to transmit legal documents from a litigant to a court or vice versa.
2 In re Amends. to Fla. Rules of Civ. Pro., Fla. Rules of Jud. Admin., Fla. Rules of Crim. Pro., Fla. Probate Rules, Fla. Small Claims Rules, Fla. Rules of Juv. Pro., Fla. Rules of App. Pro. & Fla. Family Law Rules of Pro.–Electronic Filing, 102 So. 3d 451 (Fla. 2012) (hereinafter E-filing Amends.).
4 All documents must be filed by electronic transmission, unless subject to limited exceptions. Fla. R. Jud. Admin. 2.520, 2.525. Rule 2.525 permits the electronic service of documents, but provides that an electronically served document must also be served in accordance with the applicable rules of court. Electronic signatures are also now permitted on all filed documents. Fla. R. Jud. Admin. 2.515(c).
5 E-filing Amends., 102 So. 3d at 451-52; Fla. R. Jud. Admin. 2.420.
6 Gary Blankenship, Florida Is ‘Far Ahead of the Curve’ When it Comes to E-filing Systems, Fla. Bar News, Sept. 1, 2014, available at /DIVCOM/JN/jnnews01.nsf/8c9f13012b96736985256aa900624829/b65f420d69acc42f85257d3f0043513e!OpenDocument.
7 There are several differences between civil and criminal e-filing procedures when opening a case or filing a document on the ePortal. See Florida Courts E-Filing Portal, https://www.myflcourtaccess.com/authority/criminalefiling.html.
8 Florida Supreme Court, General Filing Information, http://www.floridasupremecourt.org/clerk/filing.shtml; Florida Second District Court of Appeal Clerk’s Office; Florida State University College of Law, Electronic Filing, http://guides.law.fsu.edu/efiling/Florida_Courts.
9 Florida Courts, E-Filing, available at http://flcourts.org/resources-and-services/court-technology/efiling.
10 Florida Courts, E-Filing Authority, https://www.myflcourtaccess.com/authority/boardmembers.html.
12 My Florida Court Access, Registration Account Help, https://www.myflcourtaccess.com/Help/HomePage.html.
14 Florida State University College of Law, Florida — Electronic Filing, http://guides.law.fsu.edu/efiling.
15 Florida Courts E-Filing Portal, Frequently Asked Questions, http://www.flclerks.com/e-Filing_Authority/Resources/Materials/E-Filing_Portal_FAQs_v5_Feb_25_2015.pdf.
17 Fla. R. Jud. Admin. 2.420; Florida Supreme Court, Accessibility of Electronic Information and Information Technologies, http://www.floridasupremecourt.org/clerk/electronicAccessibility.shtml.
20 Florida Clerks, Frequently Asked Questions, http://www.flclerks.com/e-Filing_Authority/Resources/Materials/E-Filing_Portal_FAQs_v5_Feb_25_2015.pdf.
23 Fla. R. Jud. Admin. 2.514(b).
24 AOSC13-49; see also Fla. R. Jud. Admin. 2.516.
25 Florida Courts E-Filing Portal, E-Service User Guide,http://www.flclerks.com/e-Filing_Authority/Resources/Manuals/Updated_E-Service_User_Guide_July_2014.pdf.
26 Florida Courts E-Filing Portal, E-Service Tips,http://www.flclerks.com/e-Filing_Authority/Resources/Materials/News_and_Information_eService_Tips_dated_February_10-FCTC.pdf.
27 Florida Clerks, E-Service User Guide,http://www.flclerks.com/e-Filing_Authority/Resources/Manuals/Updated_E-Service_User_Guide_July_2014.pdf.
29 Florida Clerks, Frequently Asked Questions.
30 Florida Clerks, E-Service Tips.
32 See Fla. R. Jud. Admin. 2.525(d)(3), 2.516(b).
33 Florida State University College of Law, Electronic Filing,http://guides.law.fsu.edu/efiling/Florida_Courts. Though it is not clear when, these district courts of appeal are expected to transition to ePortal at some point in the near future. Blankenship, Florida Is ‘Far Ahead of the Curve’ When it Comes to E-filing Systems, Fla. B. News, Sept. 1, 2014.
34 First District Court of Appeal, The Digital Appellate Court: Introduction to the eDCA Electronic Portal.
40 In re: Amendments to Rule of Appellate Procedure 9.200, Case No. SC15-765 at *1-2 (May 14, 2015) (citing In re Interim Policy on Electronic Appellate Court Records, Fla. Admin. Order No. AOSC10-32 (June 29, 2010)).
41 E-Filing Amends., 102 So. 3d at 462; see also Electronic Records on Appeal, Fla. Admin. Order No. AOSC14-28 (May 7, 2014).
42 In re: Amendments to Rule of Appellate Procedure 9.200, Case No. SC15-765 at *1-2.
44 U.S. Courts, FAQs: Case Management/Electronic Case Files (CM/ECF), http://www.uscourts.gov/courtrecords/electronic-filing-cmecf/faqs-case-management-electronic-case-files-cmecf; see also Florida Courts, Technology Standards, https://www.flcourts.gov/resources-and-services/court-technology/technology-standards.stml.
45 U.S. Courts, FAQs: Case Management/Electronic Case Files (CM/ECF), www.uscourts.gov/courtrecords/electronic-filing-cmecf/faqs-case-managment-electronic-case-files-cmecf.
51 U.S. Courts, Innovations — Annual Report 2014: Development of the Next Generation of CM/ECF, http://www.uscourts.gov/statistics-reports/innovations-annual-report-2014.
52 U.S. Courts, Court Management, Financial Systems, and Statistical Reporting — Annual Report 2013, http://www.uscourts.gov/statistics-reports/court-management-financial-systems-and-statistical-reporting-annual-report-2013.
54 U.S. Courts, Innovations — Annual Report 2014: Development of the Next Generation of CM/ECF, http://www.uscourts.gov/statistics-reports/innovations-annual-report-2014.
56 U.S. Courts, Find a Case (PACER), http://www.uscourts.gov/courtrecords/find-case-pacer.
58 U.S. Courts, FAQs: Case Management/Electronic Case Files (CM/ECF), www.uscourts.gov/courtrecords/electronic-filing-cmecf/faqs-case-managment-electronic-case-files-cmecf.
59 U.S. Courts, Find a Case (PACER), http://www.uscourts.gov/courtrecords/find-case-pacer.
Rachel A. Canfield is an associate with Shook, Hardy & Bacon in Miami. She focuses her practice on the defense of cases involving complex commercial litigation as well as state and federal appeals.
This column is submitted on behalf of the Appellate Practice Section, Christopher V. Carlyle, chair, and Brandon Christian, editor.