# Presentation: 100434

## ELECTRONIC CASE FILINGLOCAL RULES AND ADMINISTRATIVE PROCEDURES

-  DISTRICT OF NEW JERSEY

- ELECTRONIC CASE FILINGLOCAL RULES AND ADMINISTRATIVE PROCEDURES

## The drafting of the Bankruptcy Court for District of New Jersey’s ECF related Local Rules and Administrative Procedures involved a four part strategy:

- BUILD OUR ECF SYSTEM FROM THE GROUND UP
- MINIMIZE AMENDMENT OF THE COURT’S LOCAL RULES
- MAINTAIN FLEXIBILITY AND CREATIVITY IN DRAFTING PROCESS
- IMPLEMENT ECF AS FULLY ELECTRONIC

**Notes:**
1. Building System from the “Ground Up” - Although ECF had been implemented in other prototype courts, we wanted to understand the System from the inside out, and from the ground up.  That is, we endeavored to avoid a blind copying of procedures and rules of other courts in favor of creating a System which we felt we understood in depth and one in which we could incorporate the best practices of other courts but remain open to innovation.
2. Minimize Amendment of the Court’s Local Rules -   Where possible, in balancing the accessability of local rules with the flexibility of administrative procedures, we opted for addressing the vast majority of issues thru administrative procedures and by making these documents available to the bar thru the Court’s Web site. 
  3. Encourage Maximum Creativity and Flexibility in the Drafting Process - While the Court’s Procedures and Rules are memorialized in a relatively few pages, we analyzed every word and line thoroughly to ensure that we were maximizing efficiency, convenience, and common sense from the standpoints of the judges, the court staff and the bar.  The process is on- going and receptive of comments/thoughts/concerns which may lead to revision as the System develops.
    4. Implement ECF as fully electronically as possible - Under the direction of Judges Lyons and Winfield, we felt strongly that we wanted to be as proactive and as progressive as possible ,insofar as we wanted to minimize the need for subsequent issues and training to the greatest extent possible. 

## ENABLING RULES AND GOVERNING DOCUMENTS

- FEDERAL RULES OF BANKRUPTCY PROCEDURE
- FED.R.BANKR.P. 5005(a)(2), Filing and Transmittal of Papers
- LOCAL BANKRUPTCY RULES
- D.N.J. LBR 5005-1 - Filing and Transmittal of Papers
- D.N.J LBR 1001-1 - Scope of Rules

**Notes:**
In understanding the System, begin by recognizing that there are essentially five governing sources of information, including enabling rules and procedures, which make up the “chain of authority” for electronic case filing.  
First, both the Federal Rules and our Local Bankruptcy Rules, authorize electronic filing and noticing. 
Fed. R. Civ.P. 5005(a)(2) provides that a court may by local rule permit documents to be filed, signed, or verified by electronic means; and further provides that “a document filed by electronic means in compliance with a local rule constitutes a written paper for the purposes of the Bankruptcy Rules, the Fed. Rules of Civ. P. made applicable by the Bankruptcy Rules, and section 107 of the Code (which deals with the issue of public access to papers - makes documents filed in B. Court a public record.); and 
Our Local Rule 5005-1 mirrors the national rule and indicates that “in cases in which electronic filing is utilized, documents shall be filed, signed or verified by means that are consistent with any general orders issued by the Court.” 
Finally,D.N.J. LBR 1001-1 - Scope of Rules, (adding paragraph (c)), indicates that the Court may issue general orders and administrative procedures to supplement the Local Rules. 
Main focus of the Court’s (draft) General Order is to authorize the Administrative Procedures 
Administrative Procedures sets forth the Court’s treatment of the bulk of the issues raised by ECF, and further references the Court’s User’s Guide for supplemental information. 

## ENABLING RULES AND GOVERNING DOCUMENTS (cont’d)

- GENERAL ORDER
- ADMINISTRATIVE PROCEDURES
- USER’S GUIDE
- COPIES AVAILABLE AT THE COURT’S **WEBSITE (WWW.NJB.USCOURTS.GOV)**

## SCOPE OF ELECTRONIC FILING

- All Pending and Newly Filed Cases and Adversary Proceedings will be assigned to ECF
- Electronic Filing is not Mandatory
- Raises Privacy Concerns

**Notes:**
1. Assignment of cases - Courts are to designate which cases will be assigned to the electronic filing system (ECFS).  A presumption exists that all documents filed in cases assigned to the electronic filing system should be electronically filed.  Some courts have designated certain types of cases for electronic filing, while some have determined that all cases are appropriate for electronic filing.  The Bankruptcy court for the D.N.J. envisions going beyond the practices of many other prototype courts, and allow for both cases and adversary proceedings to be electronically filed, without limitation by Chapter, size of case, etc. From the date of implementation forward, all documents will be entered into the System electronically, whether by the electronic filing of Participants or by conventional filing with the Court then scanning the documents into the System.  

2. Electronic Filing not mandatory - The Bankruptcy Court for the D.N.J. does not make electronic filing mandatory.  Mandatory electronic filing appears to be inconsistent with Fed.R.Bankr.P. 5005, which states that a court “may permit” papers to be filed electronically, and provides that the clerk “shall not refuse to accept for filing any paper presented . . . solely because it is not presented in proper form.”  However, the Federal Rules clearly permit a court to strongly encourage lawyers to participate in electronic case filing, and the Administrative Procedures of the Court are written to provide such encouragement. 

3. Privacy Concerns - Electronic case filing raises privacy concerns especially for debtors with respect to social security numbers and credit card account numbers, etc.  Although such information has always been a matter of public record in bankruptcy cases, electronic case files can be more easily accessible than traditional paper case files, therefore there is a greater risk of public dissemination of sensitive information. The Bankruptcy Court for the D.N.J., like other Bankruptcy Courts around the country, is investigating and evaluating the privacy concerns attendant to electronic case files, and is working to develop a policy per the Recommendations of the Judicial Conference on Electronic Case File Availability and Internet Use (September 2001).

## ELIGIBILITY, REGISTRATION, PASSWORDS

- Registration Forms available on-line
- Participation limited to attorneys, trustees and their authorized representatives
- Logins and Passwords to Training Database
- Compromised Password/Change           of Password

- _   __TIP__  _Admin. Pro. I.B

**Notes:**
 Registration will be exclusively on line;

           Attorneys may allow authorized representatives (staff members to file documents on    their behalf thru use of Participant’s password);  

               Participants will receive login and password for use on training data base, later to be allowed access to live data base once completion/certification thru training process.  

            Finally, where a password has been compromised, attorneys must notify the court and then reference the directions in the User’s Manual to change password.  

## ELIGIBILITY, REGISTRATION, PASSWORDS (cont’d)

- Acceptance of login and password constitutes:
- Waiver of Notice by first class mail and agreement to receive notice electronically
- Includes Notices under Fed. R. Bankr.P.   2002(a) as well as Notices of an Order under Fed. R. Bankr.P. 9022.
- Operates independently of Bankruptcy Noticing Center (BNC) under Fed. R. Bankr.P. 9036
- Waiver of Service by first class mail and agreement to receive service electronically

- _   __TIP__  _Admin. Pro. I.B

**Notes:**
 This is a “five star” issue - The acceptance of a login and password from the Court constitutes a waiver and an agreement as to both traditional notice and service.  

Specifically, the Participant waives the right to receive notice by first class mail and agrees to receive notice electronically - 

This includes the 20 day notices sent pursuant to Fed. R. Bankr.P. 2002(a) thru the BNC - (i.e. 341 notices; 363 sale notices; hearing on approval of a compromise; hearing on dismissal or conversion of chapter 7 cases or chapter 11 cases; fee application notices where amount exceeds $1,000; the time fixed for filing proofs of claim);

This further includes notice of the entry of an Order under Rule 9022. 

Twist on this issue concerns the BNC - That is, to the extent notices are sent by the BNC, unless The Participant is independently registered for Electronic Bankruptcy Noticing, still receive the notices conventionally (hard copy paper)   - 

## SERVICE OF DOCUMENTS BY ELECTRONIC MEANS

- Court’s automatically generated Notice of Electronic Filing (NEF) constitutes service of document upon Participants
- Exception - Amendments to the Federal Rules (Fed. R. Bankr.P. 7005, Fed. R. Civ.P.5(b) do not permit electronic service of process for purposes of obtaining personal jurisdiction (Rule 7004 service)

- _   __TIP__  _Admin. Pro. I.B

**Notes:**
 By definition, through the registration process, Participants consent to electronic service. The System automatically generates a Notice of Electronic Filing at the time a document
 is filed with the system. (Notice indicates the time of filing, the name of the party and attorney filing the document, the type of document, and the text of the docket entry).  It also contains a hyperlink to the filed document. 

     However, 12/01 amendments to the Federal Rules (Fed.R.Bankr.P. 7005, Fed.R.Civ.P. 5(e)) authorizing service of documents by electronic means do not permit electronic service of process for purposes of obtaining personal jurisdiction (i.e., Rule 7004 service).  Therefore, the Bankruptcy Court for the D.N.J. requires conventional service be effectuated where service is required under Fed. R. Bankr.P. 7004, and the Rules incorporating same, i.e. 9014 and 9016. 

## SERVICE OF DOCUMENTS BY ELECTRONIC MEANS (cont’d)

- Service of Documents in hard copy is required under Fed. R. Bankr.P. 7004 (adversary complaints), 9014(initiating contested matters) and 9016(subpoena)
- Service is effective upon transmission under Fed. R. Civ.P. 5(b)(2)(D); and
- E service treated the same as mail for purposes of adding three days to respond under Fed. R. Bankr. 9006(f)

**Notes:**
A pending amendment to Fed.R.Bankr. P. 9006(f) provides that the three additional days to respond to service by mail will apply to electronic service as well.  The Committee Note on the parallel amendment to Fed.R.Civ.P. 6(e) states:

Electronic transmission is not always instantaneous, and may fail for any number of reasons.  It may take three days to arrange for transmission in readable form.  Providing added time to respond will not discourage people from asking for consent to electronic transmission, and may encourage people to give consent.  The more who consent, the quicker will come the improvements that make electronic service ever more attractive.

The Model Rule does not specifically provide for the added three days, but such a provision would not be necessary if the proposed amendment to Fed.R.Bankr. P. 9006(f) takes effect.

The CM/ECF system is designed so that a person may request electronic notice of all filings in a matter even though that person has not obtained a password and registered as a Filing User.  Such electronic notice would not constitute service under the Model Rule, because the effectiveness of electronic service is dependent on registration with the system.  The court should be aware of this possibility and should encourage all those who request electronic notice to register for a system password. 

## SIGNATURES

- USE OF LOGIN AND PASSWORD CONSTITUTES SIGNATURE
- EFFECTIVE FOR RULE 9011 PURPOSES
- THE DISPLAY REQUIREMENT (/S/____)
- AUTHORIZED AGENT REQUIREMENT

- _   __TIP__  _Admin. Pro. II.C.

**Notes:**
. Use of log-in and password constitutes signature - Signature issues are a subject of considerable interest and concern.  The CM/ECF system is designed to require a log-in and password to file a document.  The Court’s Administrative Procedures provide that use of the log-in and password constitutes a signature, and assures that such a signature has the same force and effect as a written signature for purposes of the Federal Rules of Bankruptcy Procedure, including Fed.R.Bankr. P. 9011, and any other purpose for which a signature is required on a document in connection with proceedings before the court.  

2. The “display” requirement - s-slash - Some users of electronic filing systems have questioned whether an s-slash requirement is worth retaining.  The Court’s view is that an s-slash is necessary; otherwise there is no indication that documents printed out from the website were ever signed.  The s-slash provides some indication when the filed document is viewed or printed that the original was in fact signed.  Note the use of the word “display” in the above provision to denote that there has been a signing of a document.   

3. Authorized Agent Requirement - The second paragraph of the Administrative Procedure cited above, does not require a Participant to personally file his or her own documents.  The task of electronic filing can be delegated to an authorized agent, who may use the log-in and password to make the filing.  However, use of the log-in and password to make the filing constitutes a signature by the Participant under the Procedure, even though the Participant  does not do the physical act of filing.

##  RETENTION REQUIREMENTS

- PARTICIPANTS MUST RETAIN ORIGINAL DOCUMENTS CONTAINING HANDWRITTEN SIGNATURES OF THIRD PARTIES
- SEVEN YEAR RETENTION PERIOD

- _   __TIP__  _Admin. Pro. II.C.

**Notes:**
1. Third Party Signatures - Issues arise when documents being electronically filed have been signed by persons other than the filer, e.g., stipulations and affidavits.  The Court’s Administrative Procedures  provides for electronic filing by a Participant, with a seven year retention requirement as to the originals. 

## PROPOSED FORMS OF ORDER

- ORDERS SHALL BE FILED WITH THE APPLICATION OR MOTION AS ONE DOCKET ENTRY
- INCLUDES EMERGENT ORDERS UNDER D.N.J. 9013(e)(OST) AND 9075-1 (OTSC)
- COURTROOM DEPUTY MUST BE NOTIFIED BY E MAIL OF EMERGENT FILINGS

- _   __TIP__  _Admin. Pro. II.E.

**Notes:**
Orders Shortening Time must be electronically filed with the moving papers in a form substantially the same as Local Forms 1 and 2 as required by D.N.J. LBR 9013-1(e). Orders to Show Cause shall be limited to adversary proceedings in accordance with D.N.J. LBR 9013 (e) and D.N.J. LBR 9075-1.

Once signed, the Office of the Clerk or the Judge will make the appropriate entry on the ECFS to docket the order. 

Use of the above e- mail addresses for Courtroom Deputies is strictly limited by the Court to notification purposes concerning emergent filings, and is not to be utilized by attorneys or other approved Participants for any other purpose

 In the manner set forth in the User’s Manual (imaged or PDF text copy) 

## PROPOSED FORMS OF ORDER (cont’d)

- NOTIFICATION OF DEFECTS IN AN ORDER WILL BE PROVIDED BY E MAIL
- SERVICE OF SIGNED ORDERS WILL BE RECEIVED ELECTRONICALLY
- EXCEPTION FOR CONSENT ORDERS AND ORDERS SUBMITTED UNDER D.N.J. 9072-2 (“FIVE DAY RULE”) WHICH MUST BE E MAILED TO JUDGE’S CHAMBERS.

## CONSENT ORDERS

- SHALL BE CIRCULATED AND SIGNED CONVENTIONALLY
- ORDER BEARING ORIGINAL SIGNATURES OF CONSENTING PARTIES TO BE MAINTAINED BY PARTICIPANT
- COPY SUBMITTED TO JUDGE’S ELECTRONIC MAILBOX WITH CERTIFICATE OF CONSENT
- SIMULTANEOUS FILING OF CERTIFICATE OF CONSENT

- _   __TIP__  _Admin. Pro. II.F.

**Notes:**
Which certifies that the signatories have affixed their consent, and that the Participant will retain the original consent order as executed by the parties for the period of time required under subparagraph II.C.2 of these Administrative Procedures.

For the court’s ease of reference. . .  in addition to the electronic filing of the Certificate of Consent. . . Similarly, Participant’s objections to electronically submitted consent orders, must be simultaneously electronically filed, as well as sent to the presiding judge’s electronic mailbox.

## D.N.J. LBR 9072-2 ORDERS UNDER “5 DAY RULE”

- SUBMIT TO JUDGE’S ELECTRONIC MAILBOX
- E MAIL SHOULD REFLECT NAMES OF PARTIES SERVED
- CONVENTIONAL SERVICE FOR NON-ELECTRONIC PARTICIPANTS
- OBJECTIONS WITHIN 5 DAYS SUBMITTED TO JUDGE’S ELECTRONIC MAILBOX

- _   __TIP__  _D.N.J. LBR. 9072-2

**Notes:**
2001 Comment: This Rule is new and is intended to provide a procedure for orders   submitted by electronic means under D.N.J. LBR 9072-1(c).  Paper equivalent.      

## ATTACHMENTS AND EXHIBITS

- NOT ORIGINALLY AVAILABLE IN E-FORM
- EXCERPTING WHERE DOCUMENT EXCEEDS 20 PAGES
- CHAMBERS’ COPY OF EXHIBITS REQUIRED
- NO CHAMBERS’ COPY OF EXHIBITS REQUIRED FOR PROOFS OF CLAIM

- _   __TIP__  _ Admin. Pro. II.G.

**Notes:**
1.  Considerations - ***** “Five Star Issue” -  One issue that has arisen in most courts using electronic filing relates to attachments or exhibits not originally available to the filer in electronic form, and that must be scanned (or imaged) into Portable Document Format (PDF) before filing.  Examples include leases, contracts, proxy statements, charts and graphs.  A scanned document creates a much larger electronic file than one prepared directly on the computer (e.g., through word processing).  The large documents can take considerable time to file and retrieve. 

2. Excerpting - It is often the case that only a small portion of a much larger document is relevant to the matter before the court.  In such cases, scanning the entire document imposes an inappropriate burden on both the litigants and the courts.  To alleviate some of this inconvenience, the Administrative Procedures of the Bankruptcy Court for the D.N.J. provide that a Participant  must submit as the exhibit only the relevant excerpts of a larger document, not to exceed 20 pages per exhibit .  The responding party then has a right to submit other excerpts of the same document. 

3. Chambers’ Copies - This Procedure is not intended to alter traditional rules with respect to materials that are before the court for decision.  Thus, any material on which the court is asked to rely must be specifically provided to the court.  Hard Chambers’ copies of full exhibits must be provided with all excerpted filings. 

4. Electronic Filing Proofs of Claim  - To the extent Participants wish to file proofs of claim electronically, the Court’s Administrative Procedures allow for it. Official Form 10, the Proof of Claim, already permits creditors to file a summary if the documentation for the claim is voluminous. Attachments to Proofs of Claim are excepted from the Chambers’ Copy requirement. 

## SEALED DOCUMENTS/CONVENTIONAL FILING

- MOTION TO BE FILED ELECTRONICALLY
- UNDERLYING DOCUMENTS TO BE FILED CONVENTIONALLY
- JUDICIAL CONFERENCE RECOMMENDS ENHANCEMENT OF 11 USC SECTION 107(b) TO ESTABLISH PRIVACY AS BASIS FOR SEALING DOCUMENTS

- _   __TIP__  _ Admin. Pro. III

**Notes:**
1. Amendment to Federal Rules - The Administrative Procedures of the Bankruptcy Court for the D.N.J. recognize that amendment to Fed. R. Bank.P. 107(b) may affect whether a motion to file documents under seal, or an order authorizing the filing of such documents, can or should be electronically filed. An amendment of this nature would enhance the section 107(b) sealing provision to clarify that judges may provide protection from disclosures based upon privacy and security concerns.  

2. File underlying documents conventionally - It is possible that electronic access to the motion or order may raise the same privacy concerns that gave rise to the need to file a document conventionally in the first place. For this reason,  while the Administrative Procedures allow for the electronic filing of the motion to file documents under seal, the actual documents to be filed under seal should ordinarily be filed conventionally.

3.  General Order and Privacy Concerns - See provision in court’s General Order allowing for issuance of a protective order to address privacy concerns arising from electronic filing.

## PUBLIC ACCESS

- JUDICIAL CONFERENCE COMMITTEE ON PRIVACY IS STUDYING PUBLIC ACCESS CONCERNS
- CURRENTLY REMOTE ACCESS LIMITED TO USERS WITH A PACER ACCOUNT
- COURT’S GENERAL ORDER ALLOWS FOR ISSUANCE OF PROTECTIVE ORDER TO ADDRESS INDIVIDUAL PRIVACY CONCERNS

- _   __TIP__  _ Admin. Pro. IV

**Notes:**
1. Judicial Conference Committee - A subcommittee of the Judicial Conference Committee on Court Administration and Case Management is currently assessing the privacy concerns arising from electronic case filing.  The Judicial Conference may at some point develop policies to address these concerns.  The rule can be adapted to reflect any future specific policies or suggestions adopted by the Judicial Conference. 

2. Limit Remote Access - The Court’s Administrative Procedures are consistent with Judicial Conference policy to limit remote public access to electronic case files to those who have obtained a PACER password.

3. Protective Order - The second paragraph of the Administrative Procedures is not intended to create substantive rights. It simply highlights the fact that a person may apply for a protective order when Internet access to a case file or document is likely to result in the loss of that person’s legitimate interest in privacy. 

## CONSEQUENCES OF ELECTRONIC FILING

- E FILED DOCUMENTS CONSTITUTE ENTRIES ON OFFICIAL DOCKET
- FILING IS DEEMED MADE WHEN ACKNOWLEDGED BY NOTICE OF ELECTRONIC FILING

- _   __TIP__  _ GENERAL ORDER

**Notes:**
1. Time of Filing -  A filing is deemed made when it is acknowledged by the Clerk’s office through the CM/ECF system’s automatically generated Notice of Electronic Filing.

2. Official Record - Electronically filed documents are considered to be entries on the official docket. 

## ENTRY OF COURT ORDERS

- ELECTRONICALLY SIGNED ORDERS HAVE THE SAME FORCE AND EFFECT AS CONVENTIONALLY SIGNED ORDERS

- _   __TIP__  _ GENERAL ORDER

**Notes:**

1.Same Force and Effect - The Administrative Procedures of the D.N.J. specifically state that an electronically filed court order has the same force and effect as an order conventionally filed.

2. General Order - The above provision of the Court’s General Order authorizing Administrative Procedures, contemplates that a judge can authorize personnel, such as a law clerk or judicial assistant, to electronically enter an order on the judge’s behalf.   

3. General Order -  The above provision provides that a Participant must follow the instructions set forth in the Court’s Administrative Procedures for submitting a proposed form of order requiring a judge’s signature. 

## TECHNICAL FAILURES

- CAUSES:
- COURT’S WEBSITE INACCESSIBLE
- PARTICIPANT’S UNANTICIPATED SYSTEM FAILURE
- COURT’S DISCRETION TO GRANT RELIEF

- _   __TIP__  _ GENERAL ORDER

**Notes:**

1. Court’s Web site inaccessible -  CM/ECF is designed so that filers access the court through its Internet website.  The Administrative Procedures address the possibility that a party may not meet a filing deadline because the court’s website is not accessible for some reason.  Cf. Fed.R.Bankr.P. 9006(a) (permitting extension of time when “weather or other conditions have made the clerk’s office inaccessible”).  The provision also addresses the possibility that the filer’s own unanticipated system failure might make the filer unable to meet a filing deadline.

2. Court’s Discretion to Grant Relief -  The Administrative Procedure does not require the court to excuse the filing deadline allegedly caused by a system failure. The court has discretion to grant or deny relief in light of the circumstances.