Nineteen Questions with George Prentice[1]: CM/ECF: Past, Present and Future
- What is your role in the CM/ECF system currently?
I'm responsible for ensuring that we have the most current release installed and that the system is available and functioning properly. - What was your role in the CM/ECF system in its earlier days?
I was involved in process reengineering and systems enhancements, most notably the development of our electronic order signing program E-Orders. E-Orders is now in use by more than a third of the bankruptcy courts nationwide. - Whose idea was electronic filing, and how did the bankruptcy system get so far ahead of the district and state courts?
Several courts had piloted electronic filing, and once the Administrative Office began developing the first CM/ECF system, bankruptcy courts were eager to participate. The nature of our forms and our work, along with bankruptcy's tradition of using new technologies, made us a natural environment for electronic filing. - What are the barriers to uniformity between different courts, and would you like to see more uniformity?
Local court practice is the biggest barrier to uniformity. While we as court clerks would like to see a bit more, the notion of local court practice and judge preference is also essential to ensure that each court operates effectively. There are legitimate local differences that dictate how courts must operate in order to serve the bar and public. - Why do we have to name the same pleading different things depending on what court you're in?
Courts are driven by precedent, rule and tradition, so it's only natural that one jurisdiction might refer to a relief from stay while another would call the same thing a lift stay. - How much control should clerks have over giving passwords to nonresident attorneys?
It's my opinion that the court's administrative procedures regarding electronic filing should be in complete accordance with the court's local rules regarding pro hac vice appearance.[2] - Does this give clerks control over pro hac vice policies that only the judges should exercise?
Not if the clerk is following the local rules regarding pro hac vice. - What is the status of a universal login for proofs of claim and notices of appearance?
Perhaps more likely than a universal login for attorneys, but the need for training and compliance with local rules and filing procedures still pertains. To my knowledge, there are no current developments being made in this area. Many clerks have expressed concerns with the legal issues associated with a universal login.[3] - Wouldn't a universal (limited) login save many hours in clerk time providing access to the courts to nonresidents?
Theoretically, yes. But this could be negatively offset by an increase in the amount of quality control done by the clerk's office to correct entries. For example, courts see an increase in filing errors when a new paralegal or someone who has not been trained to use CM/ECF is asked to file something electronically. The concern that universal logins without proper training and certification will lead to an increase in corrective work is a valid one. - What is the attitude toward universal and unlimited logins for attorneys?
Courts differ on universal logins. Some believe that each court must ensure that the attorney is familiar with the local rules and administrative procedures regarding electronic filing, while others think that the login procedure can be streamlined and separated from that process. The issue of unlimited logins is likewise controversial as attorneys are responsible for the documents that are filed electronically. Unlimited logins might encourage the use of CM/ECF by support staff that are not properly trained. - Who are the opponents and supporters?
Firms who file in multiple jurisdictions and national creditors obviously would benefit by universal logins. Courts are naturally concerned with the quality of their docket and electronic case files and believe that local control of the CM/ECF access is one important way to address that. - What is the role of "local innovation" in CM/ECF upgrades, and how did it evolve?
Local innovation evolved to meet the functional requirements that were missing from the national releases. This process has only improved and strengthened the product. - What are some of the improvements created by the current "local innovation" system that some of us have not seen?
Most of the local innovations are apparent to electronic filers, such as order processing, automated judge/trustee assignment and automatic hearing scheduling. These are developed to meet the local needs of the court and filers, and then adopted by many other jurisdictions. - Is there a move toward more uniformity in CM/ECF upgrades rather than the ad hoc system currently used?
The Administrative Office of the U.S. Courts strives for uniformity in CM/ECF upgrades, but circumstances sometimes dictate a change in their upgrade plan. These includes changes to the law (BAPCPA) and emergency fixes that require immediate release and upgrades. - Who decides what gets added to any court's Web site?
The judges and clerk decide the look and content of the court's Web site, although much of the information is similar across court Web sites. - How much has paper and manpower been reduced as a result of CM/ECF?
In addition to CM/ECF, there are numerous ongoing initiatives to increase efficiency and reduce costs. These include the Bankruptcy Noticing Center (BNC), a robust methods analysis program within the judiciary; televideo conferencing and a host of local initiatives. Overall these efforts have resulted in staffing in bankruptcy courts from 6,000 10 years ago to just under 4,500 in 2008. - Could CM/ECF or courts move toward other applications such as video conferencing over the internet or VoIP dial-in capability without the use of third-party vendors?
It's very likely that these tools and technologies will converge over the next few years and produce an integrated system where electronic filing, video conferencing and digital recording are operating over the Internet. - What are some of the surprising issues that have arisen as a result of 24-hour filing and access?
The need to ensure that the system is functioning 24/7. More sophisticated monitoring systems have been put in place to make sure that the servers are up and running, backups are being performed, and building electrical and cooling systems are operating properly. - What are some of the esoteric rules that attorneys haven't been following for ECF?
When pleadings are filed electronically using the login and password of one attorney but the pleading is signed by another attorney. Not paying the filing fees online at the completion of their filing for the day. Duplicate case filing. Using incorrect event codes. Not submitting the most current official bankruptcy forms. Wearing white after Labor Day.
1 George Prentice is the Clerk of the Bankruptcy Court for the Western District of Texas, one of the first districts to adopt electronic filing in 2001. See George Prentice, Building Better Mousetraps: In Praise of Local Innovation, 24 Am. Bankr. Inst. J. 34, 34 (2005). Footnotes are written by the editor.
2 See New York County Lawyers' Association Committee on the Federal Courts, Recommendation for the Uniformity of Some EM/ECF Protocols, June 12, 2006, at 16 (recommending universal logins and passwords).
3 CM/ECF has many aspects that may play into current debates regarding a multi-jurisdictional practice. Indeed, these local rules may be invalidated for Constitutional concerns. See, e.g., Frazier v. Heebe, 482 U.S. 641 (1987) (invalidating federal district court rule requiring residency prerequisite to admission as violating of privileges and immunities clause (Art IV, 2, cl 1) and the equal protection component of the due process clause of the Fifth Amendment; Rittenhouse v. Delta Home Improvement Inc. (In re Desilets), 291 F.3d 925 (6th Cir. 2002) (overturning disgorgement of debtor's attorneys' fees based on unauthorized practice of law in bankruptcy court, finding federal practice immune from state regulation).