Notice of Electronic Filing
The Notice of Electronic Filing (NEF) 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 purportedly 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 digitally encrypted,alphanumeric "checksum" strings. Effectively, the NEF today is the evidence of entry of court minutes, orders, and judgments, and therefore, it is of critical significance.
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Sources of information
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):[2]
L. The Notice 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 e-mail 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.
A more specific definition is found in the United States District Court for the Western District of Texas Administrative Policies and Procedures for Electronic Filing. [6]
Section 2: Definitions and Related Requirements: (page 5)
h. Notice of Electronic Filing (“NEF”) is an electronic notice automatically generated by the Electronic Filing System at the time a document is docketed. The NEF includes the time of filing and docketing, the name of the party and Filing User filing the document, the type of document, the text of the docket entry, the name of the party and Filing User receiving the notice. If a document is attached to the docket entry, the NEF will contain a Hyperlink to the filed document allowing recipients to retrieve the document.
Section 7: Consequences of Electronic Filing (page 11)
a. Electronic transmission of a document through the Electronic Filing System constitutes the filing of the document pursuant to Rule 5(e), FEDERAL RULES OF CIVIL PROCEDURE, and Rule 49, FEDERAL RULES OF CRIMINAL PROCEDURE.
b. The transmission of a NEF constitutes entry on the docket pursuant to Rules 58 and 79, FEDERAL RULES OF CIVIL PROCEDURE, and Rules 49 and 55, FEDERAL RULES OF CRIMINAL PROCEDURE.
Section 16: Notice of Court Orders and Judgments
a. Immediately upon entry of an order or judgment, the Clerk will transmit a NEF to Filing Users. Transmission of the NEF constitutes the notice required by Rule 77(d), FEDERAL RULES OF CIVIL PROCEDURE, and Rule 49(c), FEDERAL RULES OF CRIMINAL PROCEDURE. The Clerk will send paper copies of orders and judgments to non-Filing Users.
The General Order 08-02 of the US District Court, Central District of California provided additional information, pertaining to the significance of the "electronic document stamp" in the process of entry: [7]
IV. Electronic Filing. (page 17)
...
O. Certification of Electronic Documents. Pursuant to Federal Rules of Civil Procedure 44(a)(1) and 44(c), the method of electronic certification described herein is deemed proof of an official court record maintained by the Clerk of Court. The NEF contains the date of electronic distribution and identification of the United States District Court for the Central District of California as the sender. An encrypted verification code appears in the electronic document stamp section of the NEF. The electronic document stamp shall be 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 CMIECF, 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.
Although such information is derived from disparate US courts, it can be assumed to be universally applicable, since the basic platforms of PACER and CM/ECF were universally implemented in all US courts.
Figure 1: Invalid, unsigned, traditional, paper Certificate of Service, by Clerk of the Court, US District Court, Northern District of California, 2010
Figure 2: NEF including an "electronic document stamp" - an encrypted alphanumeric "checksum" string (in red rectangle), Eastern District of California, 2004
Figure 3:Invalid NEF, missing the "electronic document stamp", US District Court, Central District of California, 2010
Figure 4:Invalid PACER docket notation, pertaining to Certificate of Mailing by the Clerk of the Court. The PACER docket notation was assigned no docket number, and no link to a record was provided. Therefore, in fact, there is no such document on record, and the document could not have been issued an NEF, and therefore was not deemed entered. US District Court, Northern District of Georgia, 2009
Significance
As documented, above, in the texts from the US District Courts in California and Texas, the NEF today is the definitive record indicating the entry of minutes, orders, and judgments of the US courts. The listing of such minutes, orders, and judgments in the PACER dockets, in itself, is not necessarily indicative of entry of such judicial records as valid and effectual records of the court.
Examples have been recorded in various US courts of minutes, orders, and judgments, which were published in the PACER dockets, but were not authenticated as entered through the issuance of a valid NEF. Obviously, such minutes, orders, and judgments are not deemed valid and effectual by the US courts. [8]
Criticism
Review (2010),[9] published in and international, peer-reviewed computer science journal with Editorial Board listing scholars from six (6) European nations and Canada, opined large-scale computer fraud in the design and operation of PACER and CM/ECF. The main points noted in the review were:
- All attestation/authentication records (NEFs - Notice of Electronic Filing) of judicial records (minutes, orders, judgments), which are required in order to render them such that command "full faith and credit", are concealed from public access. Therefore, the public is unable to distinguish valid and effectual records from void, not voidable records, both being published by the courts in PACER.
- The NEF was opined as invalid as to form: It lacks a certification statement "I, the undersigned, hereby certify...", it fails to state the name and authority of an individual, issuing the NEF as a Deputy Clerk of the Court.
- The NEF bears no valid signature, either graphic or digital. Instead - it carries a machine generated encrypted "checksum" string.
As shown in Figures 1, 3, and 4, the system is amenable to manipulations, where invalid PACER docket notations correspond to records that were never deemed entered, valid and effectual US court records. However, to a naive reader, such notations would appear as valid court records.
Therefore, the system as a whole was opined as undermining the accountability of the Court clerk for integrity of court records.
See also
References
- ^ 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.
- ^ a b Anderson's Unofficial Manual for e-filing at the Central district of California. No Official Manual existed.
- ^ Official Manual of the Eastern District of California
- ^ Official Manual of the Southern District of California
- ^ Compilations of Local Rules of U.S. District Courts
- ^ United States District Court for the Western District of Texas,Administrative Policies and Procedures for Electronic Filing, April 1, 2010
- ^ [US District Court Central District of California: General Order 08-02, February 7.2008]
- ^ Zernik,J Motion to Intervene in Log Cabin Republicans v USA et al(10-56634)in the US Court of Appeals, 9th Circuit, January 7, 2011
- ^ [1] Zernik, J: Data Mining of Online Judicial Records of the Networked US Federal Courts, International Journal on Social Media: Monitoring, Measurement, Mining, 1:69-83 (2010)
1 comment:
True colors.
Posted 1 hour ago By whatduh
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