Appealing to the Digital Age: How Rules of Appellate Procedure Change to Keep Up With Electronic Filing Practices
This article originally appeared in Goldberg Segalla’s On Appeal. Read the issue here.
With the increasing reliance on electronic filing of appellate briefs and records, the rules governing appellate practice and procedure in many jurisdictions have been amended to address both anticipated and unanticipated issues arising from electronic service and filing systems. While e-filing has been in place for over a decade in the federal courts of appeal, numerous state appellate courts had been slower to implement it. This article discusses the most recent changes to the Federal Rules of Appellate Procedure, and examines how electronic filing and service have impacted state appellate practice rules in three jurisdictions—North Carolina, Florida, and New York—which are each at different stages of implementing their own e-filing systems.
Federal Rules of Appellate Procedure
The Supreme Court of the United States adopted several significant amendments to the Federal Rules of Appellate Procedure last year, which took effect on December 1, 2018. These amendments “govern in all proceedings in appellate cases thereafter commenced, and, insofar as just and practicable, all proceedings then pending.” With respect to electronic filing, the amended Rule 25 now creates a level of uniformity nationwide in electronic service and filing, requiring any party represented by counsel to file electronically, unless non-electronic filing is allowed by the court for good cause or by its local rules. Amended Rule 25 leaves the issue of electronic filing by prose parties to the discretion of the court where the appeal is pending and its local rules.
In addition to complying with the Federal Rules of Appellate Procedure, federal appellate briefs, records, and motions must also abide by the particular local rules of the court in which the appeal is pending.
The amendment to Rule 25 also revises the electronic service rules, now stating that service may be made electronically on a registered user by simply filing the document with the court’s e-filing system or by any other electronic means that the person served has consented to in writing. Previously, service through the electronic filing system also required the served party’s written consent. With respect to electronic signatures, amended Rule 25 clarifies that “a filing made through a person’s electronic-filing account and authorized by that person, together with that person’s name on a signature block, constitutes the person’s signature.”
Much to the delight of those still reeling from the reduced timeline for reply briefs following the elimination of the three-day rule for electronically-served documents several years ago, Rule 28.1 and 31 of the Federal Rules of Appellate Procedure have been amended to extend the time period for filing a reply brief from 14 days to 21 days in appeals and cross-appeals.
With respect to changes unrelated to electronic filing practices and procedures, Rule 29 of the Federal Appellate Rules adds language to mitigate the potential for judicial disqualification and recusal as a result of the participation of an amicus curiae, stating that “a court of appeals may prohibit the filing of or may strike an amicus brief that would result in a judge’s disqualification.”
The final noteworthy change to the Federal Appellate Rules involves the issuance of the appellate court’s mandate—the appellate court’s order to the lower court—which informs the lower court’s next action and transfers jurisdiction back to it. Rule 41, as amend-ed, allows a party seeking certiorari to the Supreme Court to move to stay the issuance of the mandate. If granted, any such stay shall automatically include any extension of time the Supreme Court provides for filing a petition for writ of certiorari, so long as the party informs the court of appeals of the extension. Rule 41 further provides that once certiorari is denied, the circuit court must issue the mandate immediately upon its receipt of the Supreme Court’s order denying the petition “unless extraordinary circumstances exist.”
North Carolina was one of the forerunners in the initial implementation of electronic filing at the state appellate level, pioneering an e-filing system for its appellate courts in 1998. Prior to the most recent amendments to the North Carolina Rules of Appellate Procedure, a party’s use of the North Carolina Supreme Court and Court of Appeals Electronic Filing Site was wholly optional, and the traditional, paper filing of certain appellate documents was required. Consistent with the general national trend, however, North Carolina’s amended appellate rules reflect continued steps towards a more paperless, electronic-based system by mandating electronic filing of certain documents and eliminating rules that required the filing of exhibits, supplements to the record, and memoranda of additional authority in triplicate. Additional substantive amendments were enacted to address the recent statutory changes giving original appellate jurisdiction over matters involving the termination of parental rights and to consolidate the appellate courts’ requirements for the protection of minors and various personal identification numbers. While the revisions regarding qualifying juvenile appeals do not impact most civil litigants, it is important to note that the amended rule requires all documents in such juvenile appeals to be filed electronically, “[u]nless granted an exception for good cause,” again evidencing the courts’ preference for e-filing.
Rule 41, addressing the initial Appeal Information Statement (AIS) prepared by an appellant, has also been completely rewritten to reflect its new web-based format. Previously, the AIS was furnished to the appealing party by the Clerk of Court of the Court of Appeals when the record was docketed in the Court of Appeals. As amended, the rule now re-quires the appellant to complete the AIS on the courts’ electronic-filing site before submitting an appellant brief, thus requiring an appealing party to become a registered user of appellate courts’ e-filing system. As briefly noted above, elimination of the “three-copy” rule for supplements to the record and documentary exhibits with the option for e-filing further emphasizes the courts’ move towards paperless filing practices.
Notably, even under the amended rules, a party appealing to the North Carolina Court of Appeals still cannot electronically file a re-cord on appeal in a non-juvenile matter. Re-cords on appeal may be electronically filed in matters originally docketed in the Supreme Court and must be filed electronically filed in qualifying juvenile matters unless good cause is shown. The record on appeal in a non-juvenile matter must be mailed or hand-delivered to the Clerk of the Court of Appeals for filing and the assignment of a docket number. Rule 13, governing the calculation of time for the filing and service of briefs, however, was amended by the Supreme Court to state that the appellant’s brief is now due within 30 days from the filing of the record on appeal. The previous method for calculation was based on the Clerk mailing of the printed record on appeal to the parties. This amended timetable could signify an intention to move to electronic filing of appellate records in both appellate courts.
The amended North Carolina Rules of Appellate Procedure also consolidate the confidentiality requirements for appellate submissions by adding Rule 42, which addresses documents filed under seal with the courts. Under Rule 42, appeals involving juvenile delinquency; adjudications of abuse, neglect, or dependency of a juvenile and related changes to legal custody of the child, including the termination of parental rights; or a sexual offense committed against minor, whether the matter is civil or criminal, are sealed automatically. The rule also makes clear that items sealed at the trial court level will remain sealed at the appellate level while also providing authority for a party to move the appellate court to seal items that were not previously under seal. Items under seal are not available for public viewing on the North Carolina Supreme Court and Court of Appeals Electronic Filing Site and Document Library. Consistent with previous rule requirements, the amended rules maintain that the parties to an appeal in any sealed matter involving a child use agreed-upon initials or pseudonyms instead of the minor child’s name. Finally, Rule 42 adds additional categories of personal identification information, namely driver license numbers, financial account numbers, and tax identification numbers, which must be excluded or redacted from appellate submissions. Previously, only social security numbers required redaction under North Carolina’s Appellate Rules.
In Florida, litigants may e-file in each of the five district courts of appeal and in the Florida Supreme Court. Electronic filing in the Supreme Court through the Florida Courts E-Filing Portal is mandatory for all attorneys. As of January 2019, all of the district courts of appeal were also accepting filings from the Florida Courts E-Filing Portal. The district courts of appeal are eventually expected to fully transition to the statewide portal from the eDCA system, which the district courts of appeal still currently use for their electronic dockets and to electronically serve their orders and decisions. Florida has also required email service of filings and papers in appellate cases, with limited exceptions, since 2012. The January 1, 2019 amendments to the Florida Rules of Appellate Procedure primarily ad-dress changes to the deadlines for certain appellate filings, enacted following the Florida Rules of Judicial Administration’s elimination of the five extra days provided for responding to a document served by email. The rules now only add five extra days to the period for responding when the document is served by postal mail.
To counteract the time lost by elimination of the five-day period for response to electronically served documents at the appellate level, the Florida Supreme Court adopted the amendments proposed by Florida’s Appellate Court Rules Committee. Under the revised Florida Rules of Appellate Procedure, the time for service of the answer brief, the reply brief, and the cross-reply brief has been extended from 20 days to 30 days, and the time period for service of responses to appellate motions has been extended from 10 days to 15 days. Requests for oral argument may now be made within 15 days from the date that the last brief is due to be served, rather than the previous 10-day period. With respect to cross-appeals, the Supreme Court has extended the time for filing notice of cross appeal from 10 to 15 days from the filing of the original notice of appeal. The deadline for briefs by a respondent addressing the Supreme Court’s jurisdiction to review the decision of the district court of appeals has also been increased from 20 to 30 days after petitioner’s service of its jurisdictional brief. Notably, the Supreme Court also revised the Rule of Judicial Administration addressing the computation of time to now state that when calculating a time period for any rule of procedure, local rule, court order, or statute, which does not specifically identify the method for computation, the time begins from the next day (after the triggering event) “that is not a Saturday, Sunday, or legal holiday.”
With respect to electronic filing, the Supreme Court of Florida amended the appellate rules to permit parties to file and serve the initial document of an appeal electronically, unless the same is a petition invoking the original jurisdiction of the Supreme Court, district appellate court, or circuit court, in which case the petition must be served both by email and in hard copy paper format by U.S. mail, fax, or hand delivery.
The Florida Rules of Appellate Procedure were also amended to address matters unrelated to electronic filing and service, including the authorization of immediate appeals from non-final orders, which set aside or otherwise find a settlement agreement unenforceable, and from orders granting or denying a motion to disqualify counsel. The revised rules consolidate a party’s post-decision motions for clarification, rehearing, certification, or written opinion into a single document per decision or order and clarify the rules and possible grounds for requesting the same.
In March of last year, New York began the expansion of its New York State Courts Electronic Filing System (NYSCEF) to certain appellate matters in the four departments of the Appellate Division. Roll out of e-filing at the Appellate Division was originally quite limited, with the Electronic Filing Rules of the Appellate Division giving each department the authority to “designate e-filing in such cases and case types as it deems appropriate.” During the initial roll out, mandatory e-filing only applied to the following cases: for the First Department, all appeals in commercial matters originating in the Supreme Court, Bronx and New York Counties; for the Second Department, all appeals originating and electronically filed in the Supreme and Surrogate’s Courts in Westchester County; for the Third Department, all appeals in civil actions commenced by summons and complaint in Supreme Court originating in the Third Judicial District; and for the Fourth Department, all appeals in matters originating in or transferred to the Commercial Division of the Supreme Court in the Fourth Judicial Department.
Since the initial implementation, the Second, Third, and Fourth Departments have further expanded mandatory appellate e-filing. The Second Department now requires appeals from the remainder of the Ninth Judicial District to be e-filed when the notice of appeal is dated on or after December 3, 2018, or when the notice of appeal is dated prior to December 3, 2018 but the appeal is perfected on or after January 15, 2019. The Third Department has substantially expanded mandatory e-filing since the initial rollout, now requiring e-filing matters in which a notice of appeal was filed on or after April 1, 2018, where the matter was e-filed in the trial court, where the parties consent to the case being e-filed, and in civil actions commenced by summons and com-plaint in the Supreme Court originating in the Fourth and Sixth Judicial Districts. As of July 1, 2018, appeals in civil proceedings commenced by petition in the Supreme Court, and appeals in proceedings commenced in County Court, Court of Claims, and Surrogate Court must also be e-filed where the notice of appeal is filed on or after July 1, 2018. Finally, appeals in civil proceedings commenced in Family Court must be e-filed as of January 2, 2019 in matters where the appeal is perfected on or after January 2, 2019. Since October 1, 2018, the Fourth Department has required mandatory e-filing in all matters e-filed in the lower court as well as all Surrogate Court matters. It has also expanded voluntary e-filing to all other civil matters as of January 1, 2019.
The Electronic Filing Rules of the Appellate Division that accompanied the rollout—in addition to the rules for service, filing, and participation within the system (and the continued filing of hard copies of briefs, records, and appendices with the court)—set forth brand-new requirements of appellants. Pursuant to Rule 1245.3, within 14 days of filing a notice of appeal with the trial court, the appellant’s counsel must register or confirm registration as an authorized e-filer with NYSCEF, electronically file the notice of appeal, and enter information in NYSCEF as the court requires. The court will then issue an appellate docket number, which the appellant must serve on all parties in hard copy with an e-filed proof of service documenting it. Within 20 days of service of the docket number notification, all other parties are required to register in NYSCEF. Once all parties have registered with NYSCEF, service and filing by them must be through e-filing. Hard copy service and filing following the registration period for an appeal is then only permitted by exempt litigants and attorneys, the requirements for which are set forth in Rule 1245.4.
In addition to the introduction of appellate e-filing through NYSCEF, New York has ad-opted the Practice Rules of the Appellate Di-vision to further create uniformity in practices within the Appellate Division. These rules apply to all appeals in New York, whether traditionally filed or e-filed, and went into effect on September 17, 2018.
The most significant impacts of the new rules are the creation of uniform standards for perfecting an appeal and maximum word counts for briefs and reply briefs. Now, in each department, a civil appellant is deemed to have abandoned the appeal if it is not perfected within six months of the date of the notice of appeal, order of transfer, or order granting leave to appeal. Appellants may extend this time first by 60 days, through stipulation of the parties or by letter to all parties, and again for an additional 30 days by letter, on notice to all parties. Any further requests for extension of time to perfect an appeal must be made by motion. To create uniformity in briefing requirements among the four departments, the Practice Rules of the Appellate Division ad-opted word-count limitations of 14,000 words for appellant and respondent briefs and 7,000 words for reply and amicus curiae briefs. The party submitting the brief must include a certificate of compliance with the word count and typeface requirements of the rules.
Each department has supplemented the Practice Rules of the Appellate Division and the Electronic Filing Rules of the Appellate Division with its own set of local rules, which ad-dress areas where its own practices differ from the statewide rules. A thorough review of the department-specific rules, therefore, remains necessary. As e-filing continues to expand in the departments of the Appellate Division, we should expect further refinement and revision to both the Electronic Filing Rules and Practice Rules of the Appellate Division to answer unresolved issues like electronic signature requirements for appellate submissions and to further develop guidelines for a uniform appellate practice.
Mandatory E-Filing Rules on the Horizon
Ultimately, the particular appellate rules governing an appeal can vary greatly based upon the jurisdiction’s stage of e-filing implementation. Even in jurisdictions where e-filing and electronic service are not new, the courts are continuing to amend their rules to further to streamline the e-filing process, and, in some instances, make previously optional e-filing a mandatory practice. While this article primarily focuses on rules addressing the implementation of technological changes and the ripple effect such changes have had on more traditional appellate issues (like service and deadlines), it is always important to carefully study the jurisdiction-specific appellate rules of procedure as well as the effective dates of any amended rules when considering any appellate issue.