July 2002

Bankruptcy Practitioners Check Your E-mail: You've Got Notice 

by Deirdre P. Glynn Levin

It's 3:42 p.m. Your valued client is late. She has finally made it through rain and heavy traffic to deliver some key data. You have not yet completed her company's bankruptcy petition. The creditor's actions scheduled for tomorrow could bury the company, so filing today is crucial. Your secretary had to leave early and the photocopier has been jammed all afternoon. You panic...it'll never be complete, copied, picked up by messenger, and filed at the bankruptcy court before its doors close at 4:30 p.m.!

Had you registered for electronic case filing (ECF), you could have relaxed, shut off the photocopier, avoided the messenger fees, and timely filed your client's petition any time before 11:59 p.m. Last year, the U.S. Bankruptcy Court for the Western District of Washington converted its Seattle and Tacoma divisions to an electronic filing system. When it "went live" with ECF on May 21, 2001, it became the first court at any level in Washington to accept filings of new cases, motions, responses, and other pleadings by electronic transmission.

The program has revolutionized filing procedures for debtors' and creditors' counsel. Registered users serve pleadings on other participating counsel by electronic means, and receive immediate electronic notice by e-mail. The participating practitioner has the ability to file virtually every pleading and supporting document from the office (or home, airport, ski cabin, or wherever you feel like connecting to the Web). Even exhibits in support of motions can be e-filed. ECF also offers the flexibility of filing documents at any hour.

There are a few preliminary steps before you can use ECF. First, you must have appropriate computer software, including a PDF (portable document format) conversion program to create a "secure" document, and software to read PDF files.

Second, you must complete the court's free half-day training, and successfully complete the homework. Paralegals and other support staff, who will often be the primary users of ECF in a law office, are strongly encouraged to attend the training.

Third, you must register. Registration involves supplying a credit card, which will be automatically charged for any filing which commands a fee, such as new petitions, motions for relief from stay, and adversary proceedings. Probably the most important term in registering for ECF is that you use ECF exclusively for all filings in bankruptcy court. This means that you consent to accept service electronically from other participating counsel. Nonparticipating parties entitled to notice or service must still be served conventionally.

Logins and passwords are limited to licensed attorneys. Passwords must be kept highly secure, because use of the password constitutes the signature on the pleading. (See Federal Rule of Bankruptcy Procedure 9011 and U.S. Bankruptcy Court for the Western District of Washington, General Order No. 3.) Out-of-state counsel are welcome to register if they are already established ECF users in another district.

One Seattle creditor's firm, Bishop, Lynch & White PS, has become a heavy user of ECF. Partner Krysta White has been pleased with how well it has worked for her firm: "Using ECF is certainly more efficient than the conventional system of filing. We have reduced our costs for postage and messenger service. As well, we receive our signed, entered orders back in three days or less, which is a much shorter turnaround time than before. This has really been a bonus for our clients."

But using ECF may necessitate changes in management of the law office or department. Job descriptions for support staff may change; some office procedures, such as mail flow, will look different. Because ECF users are not required to provide courtesy bench copies for filings less than 25 pages, photocopying time, as well as paper costs, will be further reduced. Standard billing procedures may have to be reconsidered. Above all, keeping computer systems fully operating by well-trained staff will be critical.

Public access to court records, document management and storage are hot issues for the courts. One bankruptcy judge used to quip that the clerk's office in Seattle had "files with a view" because they blocked much of the valued window space. Not anymore. As pre-ECF paper files have been gradually eliminated, the once overstuffed, industrial gray file shelves are being stripped to mere skeletons and removed. Even though the district's case filings in 2001 reached a record high (almost 27,000 cases), the amount of physical space assigned to files has decreased.

Another advantage of ECF is that electronic information cannot be easily changed or obscured. Consequently, court administrators are relieved of the historical concern over files being removed, misplaced or damaged.

Bankruptcy Judge Thomas T. Glover of the U.S. Bankruptcy Court for the Western District of Washington has been an outspoken supporter of ECF. One reason that he has encouraged broader Bar participation is because conventional filings place a heavy strain on the court's staff and resources. In order to maintain uniformity of the system, each time the court receives a conventional "paper filing," court personnel must scan each page so that it can be accessed electronically. The scanning process is time-consuming and the technology is costly to operate. The scanned document uses more "space" than a document filed using ECF, is slower to download, and the additional paper handling could result in errors.

To allow the attorneys time to adjust, the court chose to implement ECF on a purely voluntary basis. According to Court Clerk Mark L. Hatcher: "So far, 157 bankruptcy lawyers in the district have active accounts for ECF. Another 57 lawyers have been trained, but for one reason or another their accounts have not yet been activated. About 38 percent of the petitions filed each month are coming in electronically, and about 21 percent of all transactions entered into the ECF system are being submitted electronically over the Internet. As users become more comfortable with ECF, the level of participation continues to grow."

Participation of the bankruptcy bar has been slowly increasing since it went live. Judge Glover is hopeful that the Bar's acceptance of ECF will continue to broaden: "I am realistic about the prospects here. It takes time for the bar to adopt big changes in the way they practice. But I am convinced this is the wave of the future, and it will be just a matter of time before more and more courts implement some version of electronic filing. Eventually, I believe conventional filings will become obsolete, and participation will become mandatory in courts of all levels."

As lawyers, we are deeply dependent on the personal computer. Functioning in this profession entirely without the use of the Internet is almost unimaginable: we rely on myriad systems for quick legal research, communication with clients, exchanges with opposing counsel, and obtaining government records, to name a few. Electronic filing and the paperless court are now an integral part of this growing trend.

More information about ECF in the Western District of Washington is available online from the court's Web site at http://www.wawb.uscourts.gov/. An online training tutorial at https://ecf-train.wawb.uscourts.gov/ provides an introduction to ECF for the beginning user.