Third Circuit Proposes Moving E-Filing Deadline to 5 pm Eastern

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.

Comments

[Bored Lawyer]

Given the long briefing schedules, I don't see what the big deal it is to file at 11:45 pm. I have a partner who likes to work late, so what?

[Krayt]

What difference does it make when someone efiles, as nobody looks at it until the next business day? Why not 7:58 AM the next day?

[Bored Lawyer]

People working late look at it. Or those who start their day early, some lawyers do that.

[Bubba Jones]

Yeah, if you're going by "business day" the deadline should be the beginning of the business day when it needs to be available.

Not the end of the prior day.

This seems like a relic of "I'm not staying late to meet your courier." I respect that, but electrons don't need you to stay late.

[Life of Brian]

I have a partner who likes to work late, so what?

Do all his associates and support staff like to work late as well? That's always been my take on the handful of jurisdictions out there that have 5pm deadlines -- one time on the clock is just as arbitrary as another as you note, so why not pick one that lets everyone have a bona fide dinner and get a good night's sleep after filing days, even when actors who feel compelled to use every last available minute polishing a brief, do so?

[Krayt]

SBIR (Small Business Innovative Research) applications were due at noon. My bud loved pulling all nighters, then driving down to the airport and paying $200 for same-day delivery, half for the airline and half for the cab service on the other end. I'm sure prices have gone up in the intervening decades.

I had no idea airlines and cabs did that, but if you wanna hemorrhage cash…

[David Nieporent]

Do you think that if there's a 5 pm filing deadline that the partner is going to say to his or her associates, "Well, it's 5 pm and we got X filed, so go home?" Or is s/he going to say, "Great; X has been filed and it's only 5 pm, so now get to work on Y?"

[Life of Brian]

I of course can't speak to the level of workaholism/sadism/greed of any individual partner, but I can politely observe that if you think they're all that way you need to get out more.

[Mr. Bumble]

Why should there exist a double standard for filling with the court? Are lawyers so special that they can't follow rules and deadlines?

If the rule before the advent of e-filing (which is relatively recent) was the scheduled closing time of of the clerk's office it should be applied uniformly.

[Bored Lawyer]

It's not a double standard. When I started practicing, you had to file things physically, so it had to be at the Clerk's office by 5 pm. Most of the time, the Clerk did not even touch it, there was a dropbox with a stamping machine next to it. You dropped one set of papers into the box (which would be processed the next day) and then you stamped a second set to take back to the office. Often a filing service did this.

Nowadays, all federal filings are on-line through PACER. You finalize your papers, make a PDF and load them onto the system. Great convenience. So why not let the lawyers do it at 11 pm?

[Mr. Bumble]

Does the old saying "close enough for government work" apply here?

[jdgalt1]

When major filing deadlines come up for tax agencies including IRS, the agency will often extend the deadline on an ad hoc basis so that people who try to file on time but are delayed by unpredictable causes (IRS’s web server goes down, or there is a hurricane in the filer’s area two weeks before deadline day, or even a typo causes IRS to reject your tax filing after the deadline has expired) can still file without a time penalty. These breaks are given, where applicable, broadly to everyone affected.

I would have courts adopt the same practice, with enough oversight (by higher courts?) to prevent partisan abuse.

[loki13]

I agree with Ted Frank.

The continued march of "always connected" culture isn't doing people any favors- I have now gotten in the habit, early in any litigation, of informing opposing counsel that anything (email, telephone conferrals, etc.) sent after "work hours," (5pm) will not be considered until the next day.

All attorneys know that deadlines are clarifying, but also arbitrary. If the deadline is 5pm, then it will be done at 5pm. If it's later, than it will be done later. In my current work, I occasionally deal with administrative agencies that have a 5pm deadline, and that works just fine. It's preferable to the midnight federal court deadline.

[Bored Lawyer]

When I had a case in the District of Delaware, they had a uniform 5 pm deadline. So it can be done. Just don't think it should be.

[tkamenick]

I agree it's arbitrary and whatever they pick will "work fine"... but my question is why change it after you've been doing midnight for years? That's a terrible idea. You aren't gaining anything significant, but you're putting real costs on the users.

[SomeGuy 2]

Lawyers will take as much time as you give them, if the deadline is midnight a "brilliant" partner will wait until 10 PM to decide "hey, we should a section on laches." If the deadline is 5 PM this insight will come at 3 PM. Still miserable, but at least we're going home at a reasonable hour (possibly).

I'm sympathetic to the trap to the unwary problem but I would do it as follows: The new deadline is 5 PM. For the first two years, a deadline from 5 PM to midnight will still be accepted, with an admonishment and $1,000 fine. After that, the real deadline is 5 PM subject to the regular reasons a deadline might be waived. Enough with this 24/7 nonsense.

[David Nieporent]

If they use the proceeds to eliminate PACER fees, sold.

[Bored Lawyer]

LOL. When does govt. ever take less money? If late-filing fines come in, I am sure someone will figure out how to spend them.

[Reallynotbob]

So big firms and rich clients get 7 more hours. Sounds right.

[Reallynotbob]

Effort expands to fill the time. Lawyers are famously paranoid about ways to improve briefs, and rarely know they are "finished" but for a looming deadline.

And if one is paying by the hour.....

[Adabsurdum]

I came here to post just what you said -- work takes as long as the deadline allows. I do not think PACER's midnight filing deadline is a good thing, and it's upsetting that state courts where I practice are now moving to midnight deadlines for e-filing. Midnight deadlines have also caused me to pay double-time to staff staying late.

[tkamenick]

If you're in charge, tell them they can't do that. That doesn't seem hard. If the court's deadline is midnight, you can still have a personal rule that it will all be done by 5. Why make other people suffer?

[John F. Carr]

Are the briefs visible to other parties immediately on filing? If so the party filing the opening brief loses seven hours of night work, but all the rest in sequence have the same amount of time because they can begin work on the response at 5 PM instead of midnight.

One could imagine a system where the brief is sealed by the system and is not made visible until 7 AM the next business day, thus encouraging law firms to give their junior employees a night off.

[Bored Lawyer]

Are the briefs visible to other parties immediately on filing?
Generally within 15 minutes. Usually less.

thus encouraging law firms to give their junior employees a night off.

LOL. That's not how it works. Big firms make money on billable hours. If the brief is due and filed by 5 pm, the junior associate will be expected to work till midnight on the next matter. The notion that such a rule will make law firms more humane is completely disconnected from reality.

[LawTalkingGuy]

If literally every court in the country had the same deadline time, lawyers, particularly in big firms, would do a bunch of work after 5 that they couldn't get to while writing and editing on the due date. And if they had stuff to get done on the due date that would normally be handled during business hours: client meetings, depositions, court appearances....they'll probably be up late the night before working on whatever it is that is due at 5 the next day.

[John F. Carr]

When President DeSantis makes me a judge, I will set my filing deadline at 1 PM and start reading when I get back from lunch.

Don't worry, I haven't donated enough to his campaign to be considered for a judgeship. I also have not donated enough to Senate Judiciary committee members and I have not taken any ABA judicial rating specialists out to a fancy steakhouse. I do know some lawyers admitted to practice in federal court who would be willing to say "really, him, are you serious?" when asked for a reference.

[LawTalkingGuy]

Let's say that the rule is uniform across federal circuits nixing the "trap for the unwary" concern. 5pm in the time zone where the circuit is located is the deadline.

Would this really help shift lawyers to have healthier work-life balance by not working late on briefs? Someone pointed out on twitter that this is just going to cause him to stay after 5 to review briefs that the opposing side just filed. (Maybe he won't be staying until midnight, but even so, no one is going home until 5). And on the due date: is everyone going to be going home or not working when there was stuff they didn't get to because they spent the day editing and writing instead of any other number of tasks. And will it really prevent people from staying up late the date before if they have a lot of other stuff to do on the due date?

In any event, when dealing with deadlines, courts and lawyers should consider the wise words of Mag. Judge Stephen Crocker twenty years ago:

https://www.wiwd.uscourts.gov/opinions/pdfs/2000-2002/02-CV-647-C-07-01-03.pdf

If the filing does not need to be read right away due to an emergency, caring about the particular hour is kind of a silly exercise as long as it is filed in a relatively timely fashion.

[Frank Drackman]

"It's a death row pardon two minutes too late"

[YepThatGuy]

Maybe they ought to abolish all the special filing rules for prima donna federal judges. I was stunned to return to civil/federal practice and find that blue-back chambers copies are still required to be placed in special drop boxes in some courtrooms in my district. How about printing the .pdf yourself (or having your clerk do it) and separate the exhibits however you like, you curmudgeon. /rant off

[SomeGuy 2]

This is particularly brutal in bankruptcy court and I was involved in a few during my time in biglaw.

Modern corporate bankruptcy works by the debtor getting a bunch of filings in order in time to drop right after the filing. The idea is to file the petition, file the motions, and get into the courtroom ideally the next day or the day after. The district the debtor plans to file in is always known reasonably in advance. Problem is, most districts have multiple judges and those judges can also have individual rules that are for their chambers only. Debtors are automatically assigned a judge, but not until the case is actually filed.

Which means you literally can't get the pleadings completely done in advance because you don't know who the judge is, because they can't get their act together and decide at least as a district what the rules are, you have to edit filings at the last minute to comply with "this judge only" rules. Great times, excellent use of the limited funds of a bankrupt estate. Haven't touched bankruptcy in a decade so I'm hoping my knowledge is out of date and the situation has since improved.

[Bored Lawyer]

I have not seen a blueback in years. And now rarely see a hard courtesy copy. Where do you practice?

[YepThatGuy]

https://www.cacd.uscourts.gov/faq/general-questions/does-mandatory-chambers-copy-require-blue-backing-labels-or-any-other-noticing

[YepThatGuy]

I would note that not all Central District Judges require bluebacks.

[Bored Lawyer]

California practice is an abomination. I mainly practice in NY and NJ, but have had cases in other places in the country. CA is absolutely awful in its rigidity and waste of time on minutiae.

I posted here once before that I had a case in which we needed to ask the judge for extra time for an Answer. In NY, we would do that with a one-page letter to the judge. There is took four documents totaling 16 pages.

[John F. Carr]

I once retained a lawyer to write a lawyer letter and possibly file suit if the letter didn’t work. (The retainer only paid for the letter.) He told me if we sued the defendant would surely ask for an extension of time to answer which would be granted as a matter of professional courtesy. The case would have gone to Massachusetts Superior Court.

[NumaNumaPompilius]

I've had circuit court oral arguments that were less stressful than run of the mill filings in C.D.Cal. It's like practicing in a foreign country. Never again.

[David Nieporent]

The pandemic seems to have mostly killed the idea of paper courtesy copies, thank goodness. It always did piss me off when a judge required litigants to submit printed (and sometimes bound!) copies of a brief we had e-filed. Even if the judge really likes reading paper copies (which is not in itself unreasonable) It's not like the judge has to print it himself.

[Bored Lawyer]

Appellate courts and SCOTUS still require multiple printed copies. Not just the briefs, but the Appendix. We usually use a printing service, and IMO it's a big waste of money.

[Rossami]

As a "trap for the unwary", this seems like pretty small beer.

Yes, the 3rd is creating an inconsistency in the deadline but there's already an inconsistency. Once could argue they are making it less inconsistent by standardizing on a time regardless of media.

I think there's a lot more to worry about in their choice of "received by" as opposed to "sent by". As an electronic filer, you have control over when you hit send but little to no control over the many things that could interfere with or delay receipt. Why is it not sufficient that you did everything possible on your end before 5 (the equivalent of the postmark standard)? What is the court's justification for putting everyone else on the hook for transmission delays, failures of their hardware, etc?

[Life of Brian]

What is the court’s justification for putting everyone else on the hook for transmission delays, failures of their hardware, etc?

There isn't really a chance for transmission delays per se: the courts have a web-based system where you upload your filing PDF(s) and fill in the relevant metadata for the filing. So by the time you click the final "submit" button, they already have everything.

Sometimes their end does go down. And when that happens, anything that was due during the downtime that is filed the day service is restored is deemed timely filed. (When in such a situation, often the filer will go ahead and email a courtesy copy to the other side by the original filing deadline to diffuse any questions that they used the delay to their advantage.)

[John F. Carr]

When I was in college and computers were common but not ubiquitous, we were warned that computer failure was not an excuse. We were expected to leave enough slack in our schedule. At the time the work product you turned in was on paper. I remember meeting a suspicious campus police officer when I went to drop a report in a slot in the middle of the night.

[Flight-ER-Doc]

If a filing is due on Friday, I would expect my attorney to file it no later than Thursday.....and to schedule his workflow accordingly.

[LawTalkingGuy]

"If a filing is due on Friday, I would expect my attorney to file it no later than Thursday…"

Why?

[Mr. Bumble]

Because you're paying good money (very good in most cases) for your representation to be well thought out and prepared and not rushed at the last minute to meet a deadline?

[LawTalkingGuy]

You're paying good money for legal expertise that you don't have.
And if the experts need until Friday midnight to do something correctly, who are you to tell them otherwise? A silly expectation from a client with no expertise isn't going to lead to a more presentable product.

[Mr. Bumble]

Yes, I'm paying good money and because I am if my expectations are unreasonable my lawyer could explain that and the reasons why.
In my limited experience with lawyers and courts I've found that almost everything is filed as late as possible, stretching out the process.

[Flight-ER-Doc]

Because filing a second too late is unacceptable. And the practice of law does not seem to be as time-critical as say Emergency Medicine (my profession).

[Reallynotbob]

However you want to spend your money, I guess. There are often some tactical advantages to filing as close to the deadline as possible, also. There are also plenty of clients who don't turn their comments around fast enough to permit an unrushed filing.

Pop quiz: how long does it take to prepare a 25-page brief for filing once the lawyer is done with it?

[Life of Brian]

Pop quiz: how long does it take to prepare a 25-page brief for filing once the lawyer is done with it?

Depends quite a bit on whether the lawyer is worth a damn with a word processor, and whether they've let anyone else touch the brief at all before then. Savvy/humane lawyers will typically submit an earlier draft for formatting/cite checking/proofreading/exhibit prep so the lion's share can happen in parallel with their late-stage (and hopefully more minor) edits. In that sort of circumstance, I've seen briefs get finalized and filed in less than an hour -- sometimes much less -- but that's usually when the filing deadline is uncomfortably close. Non-fire-drill mode, probably 1-2 hours unless there are a ton of exhibits or other weirdness.

[John F. Carr]

I don't want the risk of a surprise delay causing my case to be lost. You had weeks to work on it. Get it done a day early.

[LawTalkingGuy]

And there are plenty of others similarly situated. You’re not special.

[tkamenick]

I hope you actually tell your attorney that before you retain them.

[JimM47]

The merits of 5pm vs. midnight can be debated. I don't find the arguments on either side terribly compelling. But, regardless of which is better, it is better to have a uniform rule than to have the theoretically-best rule. Even if no one ever actually falls into the trap for the unwary, there is precious little justification to have one more exception to a rule to have to remember.

[tkamenick]

That's where I am on this. I don't see either as clearly preferable, but if you've been doing it one way for years, any possible benefits won't come close to outlawing the problems caused by changing it.

[Noscitur a sociis]

I’m reminded of the Hyperphase case. What happens to a brief filed at 5:30?

[LawTalkingGuy]

I linked to that above. I guess the same thing they would do if it came in at 1230?

[Paul Alan Levy]

I don't share Ted Frank's recollection of what the rule was 25 years ago. My recollection is that, in the days before electronic filing, we had the option of getting papers to the courthouse by midnight -- we would get a file stamp from the guard at the door.

I have asked the Third Circuit to explain the reasoning behind this proposed change.

[David Nieporent]

Paul, I thought I recalled the same: the drop box was available until midnight.

[Jonathan Affleck]

5:00 PM is a really bad time for a cutoff. School typically ends between 3 PM and 5 PM. Work shift transition takes place typically from 3 PM and 5 PM. 4:30 PM through 8:00 PM tends to be a high traffic period when "stuff" is likely to go wrong. 2:30 AM - 3:30 AM tends to be used for service updates when "stuff" is likely to go wrong. 11:30 PM - 1:30 AM is a quiet period, which is a good time for a deadline.

[Formerly Known as Stash]

God forbid that technology should result in any convenience. To be truly "uniform" the Court should limit e-filing to the times that the clerk's office is open. Why should e-filers be allowed to file any time, while paper filers are limited to certain hours? That is not UNIFORM! Certainly that is where the reasoning takes us. Seems to me that if the 3rd Circuit had been in charge, automobiles would still have buggy whips as required equipment.
Many, if not most courts now require that papers be efiled, at least by attorneys, and the vast majority of filings are electronic. Seems like the tail is wagging the dog here.
All deadlines are basically arbitrary. Effectively, this is simply the shortening of a deadline by 7 hours, nearly a full work day, for no other reason than to make it uniform with a now generally disfavored form of filing. The burden will be borne by solo practitioners like me, who would much rather finalize a brief after 5 or 6 pm when the phones have stopped ringing, and other matters such as court appearances, meetings and negotiations need to be scheduled. When things need to be juggled and fires need to be put out, it is nice to be able to file after the storm, instead of during it. Now, that convenience will be pushed back a day. No biggie, but what's the point? Also would likely be a similar burden on telecommuters who lose the flexibility of taking care of business at home--child care, errands, etc.--Thankfully, I do not practice in the 3rd Circuit, though I expect they must have a light caseload, as this proposed rule is clearly a case of them having too much time on their hands.

[Formerly Known as Stash]

Also, how does this jibe with the "mailbox" rule that exists in many courts, including the Supreme Court? That is, the filing date is the date it is mailed/postmarked. To be "uniform" it seems to me, one would have to modify the mailbox rule to require that the mail drop be before 5pm. One can't tell from the postmark what time it was put the box. Filing mail, like other paper filing, is becoming quite rare, but apparently the courts lived with this "non-uniformity" of filing deadline times for years without comment.