Reflections on Palm Springs, and Looking Ahead
Written by: Kenneth M. Freda
The Garden City Group, Inc.; Melville, N.Y.
During the ABI’s 19th Annual Winter Leadership Conference in Palm Springs, Calif., this past December, the Court Administration Committee met on an otherwise bright and sunny southern California morning to discuss the evolution of Electronic Case Filing (ECF) and issues surrounding proofs of claim. I was part of a panel that consisted of Kelly Beaudin Stapleton, the U.S. Trustee for Region 3, and Barry K. Lander, the clerk of the Bankruptcy Court for the Southern District of California. At a time in the morning when many people could have chosen to be outdoors on a local golf course, the committee meeting attracted a good number of ABI attendees.
In order to properly understand how ECF has affected the lives of bankruptcy professionals, it important to stop, take a breath, and look back to a time when we performed our jobs without the benefits of electronic court databases. For many younger professionals, this is ancient history, as they have no first-hand knowledge of what it was like to practice law when lawyers (or their clerks) were required to make regular sojourns to bankruptcy court, burdened with piles of documents, and drop them in front of a court clerk in order to commence a bankruptcy case or make a motion in a bankruptcy case.
Today, there is no need to make such trips. Bankruptcy lawyers can commence cases or file pleadings electronically from their offices or the comfort of their homes. As a former deputy clerk in Bankruptcy Court for the Southern District of New York, I assisted in the implementation of electronic filing in what was then the pilot bankruptcy court for ECF in 1996. I vividly recall instances where attorneys who were being trained on the system were enthusiastic about this “new” way of doing business. Still others, however, offered some resistance for precisely the same reason as they were being taken well out of their comfort zones. Yet in 12 short years, ECF has become the only game in town—a much-appreciated afterthought to most.
All of this, of course, begs the question: “What is next for ECF?” That’s where our panel discussion picked up, raising ideas as to how ECF could improve. Here are a few of the queries posed, as well as information regarding a new wrinkle introduced in the Southern District of New York and some other courts.
Electronic Data Interchange. Could the ECF system be configured to interact with an attorney’s database, thereby allowing information to be shared and providing for one record-keeping system? Some attorneys have asked for an ECF system that allows a user to easily download reports and other information into a system used at the law firm. Others have asked that a judge’s calendar be made available online with the ability to be downloaded to an attorney’s calendar database at his or her office.
Payment Tracking System in Consumer Cases. Could ECF be set up in such a way so as to track payments to secured creditors in order to provide “real time” information? Having this functionality could help reduce the number of motions to lift the automatic stay. However, aside from the need for additional training, the issue of how pro se debtors (who might not otherwise have access to ECF filing privileges) would enter information would need to be addressed.
Playback of Hearings from the ECF Docket. Could a hyperlink on the court docket be created that would allow users to listen to a transcription of a hearing? This could also provide a streamlined mechanism for an attorney to order (and pay for) a transcript.
Proofs of Claim. In response to requests by institutional creditors, bankruptcy courts such as the Southern District of New York are now issuing limited-access passwords to allow for the filing of proofs of claim on the court's ECF system. The limited-access Account—intended for use by those who are not attorneys—may also be used to file other claims-related documents (such as claim transfer documents) and affidavits of service. Such a system makes ECF filing, at least on a limited basis, open to all.
Conclusion. While almost everyone agrees that the ECF system has been time- and cost-beneficial, there is still room to improve it to offer better and more wide-ranging services to bankruptcy professionals, judges and nonattorney users. As we look back in time and how we performed our jobs in a non-ECF world some 12 years ago, one can only wonder what the landscape will look like 12 years from now.