Electronic filing has been a mainstay of federal practice for twenty years. It makes filing more convenient and cheaper than regular mail or personal delivery. The Federal Judicial Center (“FJC”) learned from federal clerks of court that pro se litigants sometimes can use the federal courts’ Case Management/Electronic Case Files (CM/ECF) system and sometimes not. In response to a request by the federal rules committee’s working group on pro se electronic filing, the FJC conducted this study of where, when, and how pro se litigants can electronically file.
The FJC reached out to seventy-nine [out of 190] clerks of court, all but one of whom agreed to participate in [the] study. Using “loosely structured interview[s]” the FJC asked each a range of questions, including whether pro se litigants, prisoners, and unrepresented bankruptcy filers (e.g. pro se creditors) can file electronically; what they must do to become electronic filers; whether pro se litigants can initiate cases directly in CM/ECF; whether the court ever accepts filings by email, fax, or electronic drop box; signature requirements; the existence, location, and use of physical drop boxes; and how they time-stamp drop box items.
The main contribution of this article is to provide a richly textured, nuanced, nitty-gritty account of electronic filings by pro se litigants. It takes time and care to examine the differences between submitting a document to a court and filing a document; between initiating a case and filing in an existing case; between NextGen CM/ECF and previous generation CM/ECF; among civil, criminal, and bankruptcy cases; and between prisoner and non-prisoner pro se litigants.
The study also distinguishes filings in the courts of appeals (less complicated and more permissive of pro se filings) from filings in district and bankruptcy courts (generally more complicated and less permissive). About half of districts allow non-prisoner pro se litigants to use CM/ECF to file in existing cases with individual permission. About one in ten dispense with the need for advanced permission for existing cases. Slightly more district courts do not permit pro se litigants to use CM/ECF. One in five district courts are silent on these questions. Where permission is required, the presiding judge typically decides (on formal motion), although some districts allow the clerk’s office to decide on less formal processes.
These variations might be explained, in part, by courts having different experiences and expectations concerning pro se litigants who might struggle with court procedures in general and CM/ECF in particular. The pro se litigant’s lack of experience, lack of potential Bar sanctions as deterrent, mental health issues, and occasional vexatious litigation behavior might make some courts more cautious about granting pro se litigants electronic access. As the FJC reports, however, courts that have granted access have “reported fewer problems than expected.”
Prisoner pro se litigants typically cannot file using CM/ECF because they lack internet access, forcing them to use regular mail. But courts have arrangements with some prisons that allow or even mandate electronic submissions. Prisoners present filings to a prison librarian who scans and transmits them to the court. On the return, some prisons accept electronic notices on behalf of prisoners and then convert filings to paper documents. In other prisons non-prisoner and court filings must still be served by regular mail. There is again a hopeful note in this variation: courts that permit electronic communications with prisoners “reported a reduction in controversies over the reliability of prison mail.”
Beyond these and other summary findings, the article includes multiple-paragraph accounts for each of the seventy-eight clerks’ offices that participated in the study.
This article represents a tremendous amount of research and care. Few other researchers can dream of having such thorough access to and participation by so many federal courts. This allows the article to develop a nuanced court-by-court description that provides a better sense of the rich texture and diversity of approaches to pro se litigation, the existence and extent of experimentation, and embedded value judgments. As such, the article complements and rounds out the important work of scholars such as Andrew Hammond who study court-by-court how federal courts interact with pro se litigants.
The article also provides insight into the research the federal judiciary and the rule-makers use in their decision-making. This is not the only way to do research. But academic researchers frustrated with their lack of impact might find here useful pointers. That said, it can be jarring for someone accustomed to reading law review articles all day to encounter a study overflowing with normative implications that are never cashed out and barely hinted at. This is a study about the meaning of access to justice in the most concrete, practical, nitty-gritty way, and yet the authors take great care not to evaluate or situate. They do not hit the reader on the nose with policy recommendations. That is equally refreshing and frustrating.
The article is worth a careful read for all these reasons, as are the many studies the FJC publishes each year. Academics are not the FJC’s primary audience. But we have much to learn from its insights, resources, and alternative approach.
