The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Federal Rule of Appellate Procedure 26(a) sets midnight as the deadline for electronic filings, but allows each circuit to change that deadline. Here's the Third Circuit's proposed change, for which comments are due Feb. 18:
Documents received by the Clerk by 5:00 p.m. Eastern Time will be filed as of the day of receipt and documents received after 5:00 p.m. will be filed as of the next day the clerk's office is open, regardless of the means of transmission (electronic filing or otherwise). Documents received by 5:00 p.m. Eastern Time on the last day for filing will be considered timely filed, unless a different time is set by a statute, local rule, or court order. Documents received after 5:00 p.m. Eastern Time will be considered untimely filed. For documents filed electronically, the electronic transmission must be completed by 5:00 p.m. Eastern Time on the last day for the filing to be considered timely filed.
And the proposed change comes with an explanation:
Comments: FRAP 26(a)(4) defines the end of the last day of filing in the court of appeals as "midnight in the time zone of the circuit clerk's principal office" for electronic filing and "when the Clerk's office is scheduled to close" for other means of transmission of documents to the clerk's office. This rule applies "[u]nless a different time is set by statute, local rule, or court order." L.A.R. 26.1 relies upon this authority to create a uniform end of the last day for filing irrespective of the means of transmission.
I'm worried that this will set a trap for the unwary; of course, lawyers should be wary, but mistakes sometimes happen, so departures from the FRAP in the directions of making deadlines or other rules stricter strike me as unwise. On the other hand, Ted Frank argues:
IF it's required to be mentioned in every scheduling order to avoid traps for unwary, then work doesn't expand to regularly file briefs at 11:45 PM, and it's more humane for attorneys. 25 years ago, briefs had to physically stamped before 5 pm.
What do others think? I'm not sure whether I'll submit a comment, but I am sure that I'd like to hear all sides of the issue before doing so.