How New York Attorneys Can Protect Themselves and Their Clients in the Age of Electronic Filing

There was a time when law firms could rely on their well-trained staff to file pleadings with courts simply by affixing a stamp and sealing an envelope.  That time has passed.  Mandatory “e-filing” for law firms has ushered in a new era where point and click dominate.  To those seasoned practitioners who spent their early years Shepardizing by hand, it is a brave new world.  Unfortunately, this technology is not a panacea that cures all ills.

New York courts at both the state and federal level have implemented mandatory electronic filing (“e-filing”) systems.  As a result, it is vital for attorneys and their staff to ensure that they are competent with the state and federal e-filing systems to avoid missed deadlines.  In the alternative, firms can retain a third-party e-filing specialist to ensure their e-filing is done timely and properly.

In New York, the Eastern and Southern federal district courts have utilized the federal e-filing system (“ECF”) for almost twenty (20) years.  At the state level, the New York State Courts Electronic Filing System (“NYSCEF”) went live in 2013 for Supreme Court cases and was expanded to the appellate courts (including the Court of Appeals) on March 1, 2018.  According to the court system, e-filing systems should make it easier for attorneys to (1) file and serve papers, (2) initiate suit, (3) obtain filed copies of pleadings, (4) manage case files, (5) reduce courier costs, and (6) help the environment by avoiding the production of printed copies for filing.  The ease of e-filing, however, is subjective as the “drop-down” menus and online terminology can frustrate even the most skilled practitioner.

The anxieties and stresses of e-filing are easily identified.  First, attorneys, who write briefs and not binary code for a living, must learn how to use the e-filing systems.  Such training may include converting documents to .pdf files, modifying file sizes, and marking redactions.  Furthermore, both NYSCEF and ECF have their own e-filing rules and requirements.  Perhaps worst of all, in the nightmare scenario of a system-wide technical failure that coincides with a filing deadline, a lawyer is at the mercy of the Court’s determination that the system “could not be accessed continuously or intermittently over the course of any period of greater than one hour after noon of that day.”  In this event, an attorney must scramble to serve a hard copy of any pleading via courier and quickly draft an affirmation explaining the failure to electronically file by the close of business.  (NYCRR 202.5-b(d)[1][i]).

Recent judicial opinions illustrate courts’ intolerance of an attorney’s failure to properly e-file documents and have cited these failures as bases for denying motions.  Recently, the Supreme Court of New York - New York County denied a motion for summary judgment, chiefly, because the movant’s attorney failed to electronically file all exhibits cited in its pleading.  (Arnoff v Irving Grunberg, Wolf Grunberg Corp, 2018 NYMisc LEXIS 173 [Sup Ct New York Cty January 18, 2018]).  Compounding the problem, counsel further failed to provide a complete e-filing of the exhibits within three days as required by rule.  (NYCRR 202.5-b(d)[1][i]).  Local federal district courts have likewise been intolerant of counsel’s failure to properly and timely e-file documents.  For example, in Graves v. Deutsche Bank Sec., Inc., the district court denied a motion to disqualify counsel because the moving party filed its motion only several minutes past a court-imposed deadline.  Although the filing party sought to excuse the late filing due to a computer malfunction, the court refused to grant relief.  (See Graves v. Deutsche Bank Sec., Inc., 2011 US Dist LEXIS 27336, at *9 [S.D.N.Y. Mar. 4, 2011]).

The challenges of learning how to e-file property pale in comparison to the implicit warnings of Arnoff and Graves An improperly e-filed document or an untimely technical failure may negatively impact clients and attorneys alike.  While attorneys and support staff should familiarize themselves with the state and federal e-filing systems, there is a growing industry of vendors who specialize in e-filing services – including in New York.  To this end, OlenderFeldman LLP recently completed an initial capital raise for its client, eFileFAST, which provides a technology solution that mitigates the risks involved with e-filing by checking the documents and ensuring their proper submission. Attorneys that do not have the time, patience, nor technical expertise for the requisite e-filing education can avail themselves of the services of such third-party e-filing specialists.

With every state and federal court in New York requiring all pleadings be e-filed, attorneys need to adapt and evolve to avoid e-filing mistakes.  By familiarizing themselves with the e-filing process, retaining a third-party e-filing specialist or using an e-filing software solution, attorneys can safeguard against e-filing failures, and redirect their efforts to the actual practice of law.

 

Sean Rose, Esq., focuses on litigation matters, representing corporations and businesses of all sizes in complex commercial disputes in state and federal courts throughout New Jersey and New York. Sean’s practice includes shareholder, member, and partnership disputes; disputes concerning restrictive covenants (including non-competition, non-solicitation, and confidentiality/trade secret provisions); and construction claims.

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