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The Notice of Electronic Filing (NEF) 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 as acknowledgment and certification of authenticity of records of the United States Court. The NEF's significance is in determining the validity and effect of court records - comparable to common law signatures on court records, and beyond. The NEF replaced the traditional certificate of service, and/or notice of entry of orders and judgments by the clerks of the courts. The logic of the implementation was in the transition from graphic/"wet"/hand signatures to digital signatures - in parallel to the transition from paper records to digital court records. The digital signatures appear in the NEFs as RSA encrypted alphanumeric strings.

Source of information

The central source for information regarding NEFs remains in CM/ECF manuals.

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):

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 e-mail a proposed order to the Court. The NEF also includes an “Electronic Document Stamp” which is a string of letters and numbers which Court staff can use to 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.

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.

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. 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.

The validity of the online docket was established in such order (page 7):

N. Docket.

Except as otherwise provided in this General Order, the acceptance by the Clerk of a document electronically filed shall constitute entry of that pleading or other paper on the docket maintained by the Clerk under Federal Rules of Civil Procedure 58, 77 and 79 and Federal Rules of Criminal Procedure 55.

The NEF was established in the order as well, however, it main effect, as the source of authentication was mentioned in passing, while the section primarily referred to certification (pages 17-18):

O. Certification of Electronic Documents.

Pursuant to Federal Rules of Civil Procedure 44(a)(1) and 44(c), the method of electronic certification described herein is deemed proof of an official court record maintained by the Clerk of Court. The NEF contains the date of electronic distribution and identification of the United States District Court for the Central District of California as the sender. An encrypted verification code appears in the electronic document stamp section of the NEF. The electronic document stamp shall be 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",, 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 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 formal 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 or respective Rules of Criminal Procedures. Neither was the power and effect of the NEF clearly defined in General Orders in the various Courts or Local Rules of Court.

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 common law rights was established for public access to court records to inspect and to copy, which included all paper court file (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 government" - in fact - on the courts themselves - the judicial branch of government. Furthermore, the Court found that such common law right, in its various manifestation 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 and appear only in CM/ECF. The outcome was that the public was denied the access to critical court records, which are 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.

References

1. PACER was the Public Access system, where access was permitted to any person, albeit for pay, and after registration. CM/ECF was the Case Management/Electronic Court Filing system, which was available only to those authorized by a particular U.S. District or U.S. Court of Appeals.
2. ^ Anderson's Unofficial Manual for e-filing at the Central district of California. No Official Manual existed.
3. Official Manual of the Eastern District of California
4. Official Manual of the Southern District of California
5. Compilations of Local Rules of U.S. District Courts
6. http://inproperinla.com/00-00-00-us-dist-ct-a-pacer-cm-ecf-us-dist-ct-cacd-general-orders-08-02-authorizing-cm-ecf-digital-verification-of-attestation-in-nef.pdf
7. ^ Portal for Federal Rules of Civil Procedure

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