Dr Z

Joseph Zernik, PhD

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10-01-01 Notice of Electronic Filing (NEF) at the United States Court

Notice of Electronic Filing (NEF)

Notice of Electronic Filing (N
EF) is part of the system established by
the Administrative Office of the United States Courts through the dual docketing and access
systems of PACER & CM/ECF.[1] The NEF provides the authentication of the service of an
electronically-filed pleading or other filing by parties, or of service of the electronically-filed
orders and judgments of the courts, upon attorneys in the case who have been permitted by the
court to participate in electronic filing in CM/ECF. Therefore, for such parties, the
NEF replaced the traditional certificate of service or proof of service. Likewise, the graphic
hand-signatures in traditional certificates of service were replaced in NEFs by digital
signatures, which visibly appear as RSA encrypted alphanumeric strings. Therefore, an NEF
bearing a valid RSA-encryption is today the critical instrument, which provides the
authentication of court papers as such that should be given "full faith and credit".[2] Albeit,
access to this critical instrument is restricted only to those permitted access to CM/ECF in a
given case, in a given district court.

Contents
1 Sources of information
2 Authority in implementation
3 Perspectives
4 References
5 External links

Figure 1:
1 NEF including a digital signature,
encrypted as an RSA alphanumeric string (in
red rectangle), U.S. Court, Eastern District of
California, 2004
Page 2/8 January 03,
03, 2010

Sources of information
The central source for information regarding NEFs remains in CM/ECF
manuals.[3][4][5][6] For example, the most explicit definition of the power and effect of NEF
in the Central District of California, one of the most populous in the U.S., including Los
Angeles County, remained in the "Unofficial Manual" of CM/ECF as follows (Rev 07, 2008,
page 13):[3]

L. The Notice of Electronic Filing

The system will present you with a Notice of
Electronic Filing (“NEF”) screen and will also e-
mail you a copy of the NEF. The Notice of
Electronic Filing (“NEF”) is your proof that the
document has been E-Filed. You should print the
screen to a piece of paper or a PDF (or both)
before proceeding, because you will need
to attach the NEF as the last page of the
courtesy copy that you submit to the Court. The
NEF includes a “document number” and a link.
Be sure to note that document number, as you
will need it if you need to email a proposed order
to the Court. The NEF also includes an
Figure
Figure 2: NEF with no RSA encrypted
“Electronic Document Stamp” which is a string of
digital signature, U.S. District Court, Alabama,
letters and numbers which Court staff can use to 2008.

verify the authenticity of the NEF. The NEF also

contains the path and file name of the document
you uploaded and any attachments.

The other source of information regarding the NEF at the Central District of
California was in General Order 08-02, which was posted on the U.S. District
Court's web site, albeit - an unsigned order, with no name of its author, and with no
Page 3/8 January 03,
03, 2010

authentication.[7]

Such order stated (page 6):

I. Authorization. Pursuant to Federal Rules of

Civil Procedure 5(d)(2)(3) and 83, the court
hereby authorizes and establishes operating
rules for the electronic filing of pleadings and
papers.
Figure 3: Traditional Certificate of Service,
by a pro se filer, US District Court, Vermont,
2009.

However, operating rules of the court required establishment pursuant to Rule

Making Enabling Act, not a General Order.

Critical definitions were provided in such order (page 7):

II. Definitions. The following definitions shall apply to these rules regarding electronic
filing:
A. “CM/ECF System” refers to the automated Case Management/Electronic Case Filing
system implemented by the court. The CM/ECF system stores case files in a
database, and documents are filed electronically, to the extent possible. The
CM/ECF system is available at https://ecf.cacd.uscourts.gov.
B. “CM/ECF Website” refers to the court’s CM/ECF website that provides pertinent
information regarding the CM/ECF system. The CM/ECF website is available at
www.cacd.uscourts.gov/cmecf.
C. “CM/ECF Registration” refers to registering with the United States District Court,
Central District of California, to file documents electronically through the CM/ECF
system. Registration is completed on-line through the CM/ECF website. Upon
the completion of CM/ECF Registration, a CM/ECF login and password is provided.
Page 4/8 January 03,
03, 2010

D. “CM/ECF User” is a person who is registered to file in the CM/ECF system.

E. “Electronic Filing” refers to the process of logging on the CM/ECF system and
completing a transaction that includes the uploading of the document(s) to be filed.
Sending a document by e-mail does not constitute an electronic filing.
F. “Electronic Signature” refers to the signature of an electronically filed document
based on: (1) the CM/ECF User’s login and password and (2) the person’s
representative signature, “/S/ – Name,” or a digitized personalized signature or
facsimile signature on the signature line of the document. used for the purpose of
confirming the authenticity of the transmission and associated document(s) with
the Clerk of Court, as necessary. When a document has been electronically filed into
CM/ECF, the official record is the electronic recording of the document kept in the
custody of the Clerk of Court. The NEF provides certification that the associated
document(s) is a true and correct copy of the original filed with the court.

Authority in implementation
The authority for implementation of CM/ECF is often cited as the Federal Rules of Civil
Procedures, which allow Local Rules of Courts. However the implementation, as shown above,
was not via Local Rules of Courts, which would have been established pursuant to the federal
Rule-Making Enabling Act28 USC 2071 2077, which required any new rules established by the
court to be posted for a reasonable opportunity for public comment and challenge, prior to
such published rules taking effect. For example, the detailed rules pertaining to
the implementation of PACER & CM/ECF at the Central District of California were provided
only in an "Unofficial Manual",[3], which stated, that at some future time it was expected that
such rules would be incorporated into Rules of Court.

Perspectives
There was no doubt that the change from paper administration of the courts to digital
administration was a must. However, such transition amounted, by necessity, to a sea change
Page 5/8 January 03,
03, 2010

in the mode of operations. The NEF represented a core issue in this regard, since it held the key
to any validity and effect of court papers. However, the authority of the NEF, in and of itself,
was never adequately established by either law or by rules of court, and so far has been hardly
documented in valid court records in various U.S. court districts that were examined. The
primary source of information, albeit no valid source of authority, remained in CM/ECF User
Manuals. Moreover, at times even access to the manuals was restricted. In contrast, no
mention of the NEF was made in the Federal Rules of Civil Procedures[8] or respective Rules
of Criminal Procedures.[9] Neither was the power and effect of the NEF clearly defined in
General Orders in the local rules of the various courts.

Through the duality of PACER and CM/ECF, the Administrative Office of the U.S. Courts
established in fact conditions in digital ("electronic") court records, that were substantially
different than those that prevailed for hundreds of years in paper court files in the U.S., and
even before that - in the English-speaking legal system, where a common law right was
established for public access to court records to inspect and to copy, which included all paper
court file records (unless sealed, for example). The common law public right to access court
records to inspect and to copy was re-affirmed in the U.S. by the Supreme Court in its
landmark  Nixon v Warner Communication, Inc (1978) decision. In that decision the U.S.
Supreme Court found that the common law right was critical for allowing the public to "keep a
watchful eye on the workings of public agencies"[10] - in fact - such "public agencies" included
the courts themselves - the judicial branch of government. Furthermore, the U.S. Supreme
Court found that such common law right, in its various manifestations was also embedded in
the First, Fifth/Fourteenth, and Sixth Amendments to the U.S. Constitution.

The dual digital systems diverged from such tradition considerably, since the NEFs were never
included so far in PACER -which was accessible to all. Instead, the NEFs were included so far
only in CM/ECF, where access was only by court permission. The outcome was that the public
was denied the access to critical court records, which were the only source of authority and
validity of court orders and judgments, and which determine which court papers required "full
faith and credit" and which ones did not.
Page 6/8 January 03,
03, 2010

References
1. ^ PACER is a public-access system, to which access is permitted to any person, albeit for pay
and after
registration. CM/ECF is the Case Management/Electronic Court Filing system, available only
to those permitted by a particular U.S. District or U.S. Court of Appeals.

2. ^ The U.S. Constitution, Article IV, §1, declares:

Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every
other state. And congress may by general laws prescribe the manner in which such acts, records and
proceedings shall be proved, and the effect thereof.

The Act of May 26, 1790, states:

That the act of the legislatures of the several states shall be authenticated by havig the seal of their
respective states affixed thereto: That the records and judicial proceedings of the courts of any state shall be
proved or admitted, in any other court within the United States, by the attestation of the clerk, and the seal
of the court annexed, if there be a seal, together with a certificate of the judge, chief justice or presiding
magistrate, as the case may be, that the said attestation is in due form. And the said records and judicial
proceedings, authenticated as aforesaid, shall have such faith and credit given to them, in every court within
the United States, as they have, by law or usage, in the courts of the state from whence the said records
are, or shall be taken.

The Act of March 27, 1804, states:

That, from and after the passage of this act, all records and exemplifications of office books, which are or
may be kept in any public office of any state, not appertaining to a court, shall be proved or admitted in any
other court or office in any other state, by the attestation of the keeper of the said records or books, and the
seal of his office thereto annexed, if there be a seal, together with a certificate of the presiding justice of the
court of the county or district, as the case may be, in which such office is or may be kept or of the
governor, the secretary of state, the chancellor or the keeper of the great seal of the state, that the said
attestation is in due form, and by the proper officer and the said certificate, if given by the presiding justice
Page 7/8 January 03,
03, 2010

of a court, shall be further authenticated by the clerk or prothonotary of the said court, who shall certify,
under his hand and the seal of his office, that the said presiding justice is duly commissioned and qualified;
or if the said certificate be given by the; governor, the secretary of state, the chancellor or keeper of the
great seal, it shall be under the great seal of the state in which the said certificate is made. And the said
proceedings of the said court.

3. ^ a b c Anderson's Unofficial Manual for e-filing at the Central district of California. No

Official Manual existed. (http://efile.andersonlaw.net/)

4. ^ Official Manual of the Eastern District of California

(http://www.caed.uscourts.gov/caed/DOCUMENTS/CMECF/UserManual.pdf)

5. ^ Official Manual of the Southern District of California

(http://www.casd.uscourts.gov/cmecf/pdf/SDCA_Users_manual.pdf)

6. ^ Compilations of Local Rules of U.S. District Courts (http://docs.google.com/viewer?

a=v&q=cache:MxhAitN1ZekJ:west.thomson.com/store/filingandshelvingdownload.aspx%3Ffil
e%3D12942_2008329_135333.pdf+northern+district+of+illinois+cm/ecf+manual&hl=en&gl
=us&pid=bl&srcid=ADGEESibX6mf-
QKkbkmvQ7DB6JN3qCYs2lLHODLLTNo4BxdpajoFAJ4sFax8rb0NHzGP05V3fNLFfyGvmFH
uvcitHdh-1QjKVTY5NcpAMURpIQqWywiJDJaF5vujqLnPPiKCRP_28W-
k&sig=AHIEtbTeIuioblVZauGwfFnvZHdjeAxVZQ)

7. ^ http://inproperinla.com/00-00-00-us-dist-ct-a-pacer-cm-ecf-us-dist-ct-cacd-general-
orders-08-02-authorizingcm-ecf-digital-verification-of-attestation-in-nef.pdf

8. ^ Portal for Federal Rules of Civil Procedure (http://www.law.cornell.edu/rules/frcp/)

9. ^ Portal for Federal Rules of Criminal Procedure

(http://www.law.cornell.edu/rules/frcrmp/)

10. ^ "The interest necessary to support the issuance of a writ compelling access has been
found, for example, in the citizen's desire to keep a watchful eye on the workings of public
Page 8/8 January 03,
03, 2010

agencies, see, e.g., State ex rel. Colscott v. King, 154 Ind. 621, 621-627, 57 N.E. 535, 536-538
(1900); State ex rel. Ferry v. Williams, 41 N.J.L.332, 336-339 (1879)" Nixon v Warner
Communications, Inc (1978),(pp 434-5)

Please cite:
Joseph Zernik, 12/17/2009