10-01-01 Notice of Electronic Filing (NEF) at the United States Court

Notice of Electronic Filing (NEF)
 


Notice of Electronic Filing (N
EF) is part of the system established by the Administrative Office of the United States Courts through the dual docketing and access systems of PACER & CM/ECF.[1] The NEF provides the authentication of the service of an electronically-filed pleading or other filing by parties, or of service of the electronically-filed orders and judgments of the courts, upon attorneys in the case who have been permitted by the court  to participate in electronic filing in CM/ECF. Therefore, for such parties, the NEF replaced the traditional certificate of service or proof of service. Likewise, the graphic hand-signatures in traditional certificates of service were replaced in NEFs by digital signatures, which visibly appear as RSA encrypted alphanumeric strings. Therefore, an NEF bearing a valid RSA-encryption is today the critical instrument, which provides the authentication of court papers as such that should be given "full faith and credit".[2] Albeit, access to this critical instrument is restricted only to those permitted access to CM/ECF in a given case, in a given district court.

Figure 1: NEF including a digital signature, encrypted as an RSA alphanumeric string (in red rectangle), U.S. Court, Eastern District of California, 2004

Figure 2: NEF with no RSA encrypted digital signature, U.S. District Court, Alabama, 2008


Figure 3: Traditional Certificate of Service, by a pro se filer, US District Court, Vermont, 2009



Contents
1 Sources of information
2 Authority in implementation
3 Perspectives
4 References
5 External links

Sources of information
The central source for information regarding NEFs remains in CM/ECF manuals.[3][4][5][6] For example, the most explicit definition of the power and effect of NEF in the Central District of California, one of the most populous in the U.S., including Los Angeles County, remained in the "Unofficial Manual" of CM/ECF as follows (Rev 07, 2008, page 13):[3]

L. The
otice of Electronic Filing
The system will present you with a Notice of Electronic Filing (“NEF”) screen and will also e-mail you a copy of the NEF. The Notice of Electronic Filing (“NEF”) is your proof that the document has been E-Filed. You should print the screen to a piece of paper or a PDF (or both) before proceeding, because you will need to attach the NEF as the last page of the courtesy copy that you submit to the Court. The NEF includes a “document number” and a link. Be sure to note that document number, as you will need it if you need to email a proposed order to the Court. The NEF also includes an “Electronic Document Stamp” which is a string of letters and numbers which Court staff can use to verify the authenticity of the NEF. The NEF also contains the path and file name of the document you uploaded and any attachments.

The other source of information regarding the NEF at the Central District of California was in General Order 08-02, which was posted on the U.S. District Court's web site, albeit - an unsigned order, with no name of its author,  and with no authentication.[7]

Such order stated (page 6):

I. Authorization. Pursuant to Federal Rules of Civil Procedure 5(d)(2)(3) and 83, the court hereby authorizes and establishes operating rules for the electronic filing of pleadings and papers.

However, operating rules of the court required establishment pursuant to Rule Making Enabling Act, not a General Order.

Critical definitions were provided in such order (page 7):

II. Definitions. The following definitions shall apply to these rules regarding electronic filing: A. “CM/ECF System” refers to the automated Case Management/Electronic Case Filing system implemented by the court. The CM/ECF system stores case files in a database, and documents are filed electronically, to the extent possible. The CM/ECF system is available at https://ecf.cacd.uscourts.gov. B. “CM/ECF Website” refers to the court’s CM/ECF website that provides pertinent information regarding the CM/ECF system. The CM/ECF website is available at www.cacd.uscourts.gov/cmecf. C. “CM/ECF Registration” refers to registering with the United States District Court, Central District of California, to file documents electronically through the CM/ECF system. Registration is completed on-line through the CM/ECF website. Upon the completion of CM/ECF Registration, a CM/ECF login and password is provided. D. “CM/ECF User” is a person who is registered to file in the CM/ECF system. E. “Electronic Filing” refers to the process of logging on the CM/ECF system and completing a transaction that includes the uploading of the document(s) to be filed. Sending a document by e-mail does not constitute an electronic filing. F. “Electronic Signature” refers to the signature of an electronically filed document based on: (1) the CM/ECF User’s login and password and (2) the person’s representative signature, “/S/ – Name,” or a digitized personalized signature or facsimile signature on the signature line of the document. used for the purpose of confirming the authenticity of the  transmission and associated document(s) with the Clerk of Court, as necessary. When a document has been electronically filed into CM/ECF, the official record is the electronic recording of the document kept in the 
custody of the Clerk of Court. The NEF provides certification that the associated document(s) is a true and  correct copy of the original filed with the court.

Authority in implementation

The authority for implementation of CM/ECF is often cited as the Federal Rules of Civil Procedures, which allow Local Rules of Courts. However the implementation, as shown above, was not via Local Rules of Courts, which would have been established pursuant to the federal Rule-Making Enabling Act28 USC 2071 2077, which required any new rules established by the court to be posted for a reasonable opportunity for public comment and challenge, prior to such published rules taking effect. For example, the detailed rules pertaining to the implementation of PACER & CM/ECF at the Central District of California were provided only in an "Unofficial Manual",[3], which stated, that at some future time it was expected that such rules would be incorporated into Rules of Court.

Perspectives

There was no doubt that the change from paper administration of the courts to digital administration was a must.  However, such transition amounted, by necessity, to a sea change in the mode of operations. The NEF represented a core issue in this regard, since it held the key to any validity and effect of court papers. However, the authority of the NEF, in and of itself, was never adequately established by either law or by rules of court, and so far has been hardly documented in valid court records in various U.S. court districts that were examined. The primary source of information, albeit no valid source of authority, remained in CM/ECF User Manuals. Moreover, at times even access to the manuals was restricted. In contrast, no mention of the NEF was made in the Federal Rules of Civil Procedures[8] or respective Rules of Criminal Procedures.[9] Neither was the power and effect of the NEF clearly defined in General Orders in the local rules of the various courts.

Through the duality of PACER and CM/ECF, the Administrative Office of the U.S. Courts established in fact conditions in digital ("electronic") court records, that were substantially different than those that prevailed for hundreds of years in paper court files in the U.S., and even before that - in the English-speaking legal system, where a common law right was established for public access to court records to inspect and to copy, which included all paper court file records (unless sealed, for example). The common law public right to access court records to inspect and to copy was re-affirmed in the U.S. by the Supreme Court in its landmark Nixon v Warner Communication, Inc (1978) decision. In that decision the U.S. Supreme Court found that the common law right was critical for allowing the public to "keep a watchful eye on the workings of public agencies"[10] - in fact - such "public agencies" included the courts themselves - the judicial branch of government. Furthermore, the U.S. Supreme Court found that such common law right, in its various manifestations was also embedded in the First, Fifth/Fourteenth, and Sixth Amendments to the U.S. Constitution.

The dual digital systems diverged from such tradition considerably, since the NEFs were never included so far in PACER -which was accessible to all. Instead, the NEFs were included so far only in CM/ECF, where access was only by court permission. The outcome was that the public was denied the access to critical court records, which were the only source of authority and validity of court orders and judgments, and which determine which court papers required "full faith and credit" and which ones did not.

References

1. ^ PACER is a public-access system, to which access is permitted to any person, albeit for pay and after
registration. CM/ECF is the Case Management/Electronic Court Filing system, available only to those permitted by a particular U.S. District or U.S. Court of Appeals.

2. ^ The U.S.Constitution, Article IV, §1, declares:

Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every
other state. And congress may by general laws prescribe the manner in which such acts, records and
proceedings shall be proved, and the effect thereof.

The Act of May 26, 1790, states:

That the act of the legislatures of the several states shall be authenticated by havig the seal of their
respective states affixed thereto: That the records and judicial proceedings of the courts of any state shall be
proved or admitted, in any other court within the United States, by the attestation of the clerk, and the seal
of the court annexed, if there be a seal, together with a certificate of the judge, chief justice or presiding
magistrate, as the case may be, that the said attestation is in due form. And the said records and judicial
proceedings, authenticated as aforesaid, shall have such faith and credit given to them, in every court within
the United States, as they have, by law or usage, in the courts of the state from whence the said records
are, or shall be taken.

The Act of March 27, 1804, states:

That, from and after the passage of this act, all records and exemplifications of office books, which are or
may be kept in any public office of any state, not appertaining to a court, shall be proved or admitted in any
other court or office in any other state, by the attestation of the keeper of the said records or books, and the
seal of his office thereto annexed, if there be a seal, together with a certificate of the presiding justice of the
court of the county or district, as the case may be, in which such office is or may be kept or of the
governor, the secretary of state, the chancellor or the keeper of the great seal of the state, that the said
attestation is in due form, and by the proper officer and the said certificate, if given by the presiding justice
of a court, shall be further authenticated by the clerk or prothonotary of the said court, who shall certify,
under his hand and the seal of his office, that the said presiding justice is duly commissioned and qualified;
or if the said certificate be given by the; governor, the secretary of state, the chancellor or keeper of the
great seal, it shall be under the great seal of the state in which the said certificate is made. And the said
proceedings of the said court.

3. ^ a b c Anderson's Unofficial Manual for e-filing at the Central district of California. No Official Manual existed. (http://efile.andersonlaw.net/)

4. ^ Official Manual of the Eastern District of California
(http://www.caed.uscourts.gov/caed/DOCUMENTS/CMECF/UserManual.pdf)

5. ^ Official Manual of the Southern District of California
(http://www.casd.uscourts.gov/cmecf/pdf/SDCA_Users_manual.pdf)

6. ^ Compilations of Local Rules of U.S. District Courts (http://docs.google.com/viewer?
a=v&q=cache:MxhAitN1ZekJ:west.thomson.com/store/filingandshelvingdownload.aspx%3Ffile%3D12942_2008329_135333.pdf+northern+district+of+illinois+cm/ecf+manual&hl=en&gl=us&pid=bl&srcid=ADGEESibX6mf-QKkbkmvQ7DB6JN3qCYs2lLHODLLTNo4BxdpajoFAJ4sFax8rb0NHzGP05V3fNLFfyGvmFHuvcitHdh-1QjKVTY5NcpAMURpIQqWywiJDJaF5vujqLnPPiKCRP_28W-k&sig=AHIEtbTeIuioblVZauGwfFnvZHdjeAxVZQ)

7. ^ http://inproperinla.com/00-00-00-us-dist-ct-a-pacer-cm-ecf-us-dist-ct-cacd-general-orders-08-02-authorizingcm-ecf-digital-verification-of-attestation-in-nef.pdf

8. ^ Portal for Federal Rules of Civil Procedure (http://www.law.cornell.edu/rules/frcp/)

9. ^ Portal for Federal Rules of Criminal Procedure (http://www.law.cornell.edu/rules/frcrmp/)

10. ^ "The interest necessary to support the issuance of a writ compelling access has been found, for example, in the citizen's desire to keep a watchful eye on the workings of public agencies, see, e.g., State ex rel. Colscott v. King, 154 Ind. 621, 621-627, 57 N.E. 535, 536-538 (1900); State ex rel. Ferry v. Williams, 41 N.J.L.332, 336-339 (1879)" Nixon v Warner Communications, Inc (1978),(pp 434-5)


Please cite:
Joseph Zernik, 12/17/2009