A Cat of Many Lives

Journal Issue

Sep 2001

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Slightly more than 10 years ago, the U.S. Judicial Conference Committee on Automation and Technology (CAT) came into existence. The judges appointed to serve at the inception of CAT faced the daunting task of determining how best to fast-forward the federal judiciary's automation program into the 20th Century before
the 21st Century dawned. The vision of a paperless court (or at least a "less
paper" court) was there from the start. The judges, however, soon realized that
implementing that vision would take quite some time because they first had to address
building-block issues like the creation of a data communications network linking all the
federal courts, the design of a stable architectural platform and the replacement of
case-management systems in use in the local courts.

The decade that followed was one of intense debate over the best strategic path to
follow to attain the desired results at a reasonable cost. That was because CAT
brought together the best of the best—the techies and the visionaries in the
Administrative Office of the U.S. Courts (AOUSC), the Federal Judicial Center
(FJC) and the local courts. The AOUSC, charged with overseeing the federal
judiciary's automation program, had serious concerns about being able to implement and
maintain an end product that would meet the identified needs of all the federal
judiciary's internal and external users. On the other hand, some courts felt they
already had quick and relatively easy solutions for many of the issues based on the
experience they had gained networking their local offices and customizing the national
case-management systems to meet local needs. Meanwhile, at least during the early
years, the FJC acted as a facilitator at many user group meetings and contributed
what it could to planning and design efforts.

Out of that environment came measurable progress. At the dawn of the 21st
Century, the federal judiciary not only had in place a nationwide data communications
network and a stable architectural platform, but it was poised to begin a roll-out
of the Case Management/Electronic Case Files (CM/ECF) system in the
bankruptcy courts throughout the land. Simply stated, CM/ECF is an application that
offers web-based access to official case records in the federal courts. Though a
particular court would have the option of rejecting the electronic filing component of
CM/ECF, it was anticipated that all courts would accept the case-management segment
of CM/ECF. The reason was that the existing "legacy" systems—the Bankruptcy Court
Automation Project (BANCAP) and the National Integrated Bankruptcy System
(NIBS)—were becoming outdated and would no longer be supported by the AOUSC or
by any private vendor.

<blockquote><blockquote>
<hr>
<big><center>
Only time will tell how successful the dedicated
efforts of so many for so long will prove to
be. How much time is another matter.
</center></big>
<hr>
</blockquote></blockquote>

At ABI Annual Meetings and Winter Leadership Conferences in the late
1990's, the ABI Automation Subcommittee presented demonstrations of CM/ECF
prototypes that were being conducted in the New York Southern, California Southern and
Arizona bankruptcy courts. Feedback from ABI members was generally positive. At
the three FJC regional workshops for bankruptcy judges in 2000, Judge Charles
G. Case gave similar demonstrations to his colleagues. Feedback from the bankruptcy
judges was generally favorable.

The experiences of the CM/ECF prototype courts (those mentioned above plus
Georgia Northern and Virginia Eastern)<a href="#1" name="1a">1</a> led to certain software revisions. Next,
implementation of the enhanced application was tested by CM/ECF alpha courts (North
Carolina Western, Texas Western and Wyoming).<a href="#2" name="2a">2</a> That led to more fine-tuning and
subsequent testing by CM/ECF wave test courts (Georgia Middle, Louisiana Middle,
Missouri Western, New York Eastern, Tennessee Middle and Washington Western).<a href="#3" name="3a">3</a> Then
in late 2000, the AOUSC announced that CM/ECF Bankruptcy Version 1 was
ready for release and identified the bankruptcy courts that would be in the first three
waves of implementation.<a href="#4" name="4a">4</a>

So does that mean you will soon be able to use your own computer to access any
document in the official case files of any bankruptcy court in the country and to file
any document electronically in that same court? In theory, yes. In reality, no.

First of all, recall that a particular court may decline to implement the
electronic filing component of CM/ECF. Some courts may decline because they are
concerned about privacy issues, the validity of an electronic signature or some other
legal issue. Some courts may decline based on procedural grounds. For example, filing
a document electronically under CM/ECF equates with entering that document on the
official docket, not merely submitting the document for subsequent filing by the clerk's
office. (Hence, the work of the clerk's office staff would change dramatically.)
Some courts may decline because they already have an electronic filing program in place
that they believe they can maintain.

As alluded to above, CM/ECF Version 1 is not a one-size-fits-all
application. That is especially true of the case-management component of CM/ECF.
Remember, many bankruptcy courts customized BANCAP and NIBS to suit their local
needs. Many of those enhancements were designed to streamline case-opening and
case-closing procedures in the clerks' offices. As bankruptcy clerks' offices underwent
mandatory downsizing beginning in the mid 1990's, those improvements eased the burden
on remaining staff without sacrificing the quality of service to the public. Thus,
it should come as no surprise that many of those courts are not eager to migrate to
even the case management component of CM/ECF Version 1 when such a move could
entail a loss of significant functionality.

Add to the above mix the fact that implementing CM/ECF is not a quick and
easy process in the best of times. Even if a court is implementing only the
case-management component, much must be done before that court goes live on the
application. That is, dictionary events for the docket must be reviewed and revamped,
procedural manuals must be updated and staff must be trained. (Staff members must also
be assured that implementation of the new application will not mean the demise of their
positions in the court.) Then realize that these are not the best of times in many
districts. The recent spike in filings is putting a real strain on the hard-working
clerks of court and their staffs. Taking away customized tools could add to their
burden and result in counterproductive frustration.

Finally, consider the impact of CM/ECF implementation if the pending bankruptcy
legislation passes. Though at this juncture it appears there will be a six-month
hiatus between the enactment date and the effective date, that is not a long period
of time given all the new duties and responsibilities the proposed law would place on
the clerks' offices. Imagine trying to adjust your own office to address new tasks
mandated by statute while your underlying business processes and procedures are in a
state of flux.

Is anything being done to alleviate the situation so that CM/ECF's progress
to date will not stall? Definitely. CAT and the AOUSC recognize and understand
the logistical problems facing many of the bankruptcy courts. Accordingly, they have
put in place a CM/ECF Working Group comprised of AOUSC staff and local court
representatives. Those individuals are addressing a variety of legal, procedural and
technical issues and concerns. In particular, the group's Modification Requests (MR)
Subcommittee has been working its way through numerous recommendations from local courts
for corrections and enhancements to the CM/ECF software. It is currently
contemplated that a CM/ECF Version 2, which will meet the needs and
requirements of most bankruptcy courts, will be released in spring 2002. At
that point, bankruptcy courts implementing CM/ECF should be able to migrate to
at least the case-management component of CM/ECF without too much loss of
familiar functionality and, in turn, they should be able to turn off BANCAP and
NIBS for good.

Only time will tell how successful the dedicated efforts of so many for so long
will prove to be. How much time is another matter. To monitor the progress for
yourself, check out the CM/ECF area on the federal judiciary's web site at <a href="http://www.uscourts.gov" target="_parent">www.uscourts.gov</a>. The AOUSC plans on adding direct links to all the CM/ECF courts
later in the year.

<hr>
<h3>Footnotes</h3>

<a name="1">1</a> CM/ECF prototype district courts included Ohio Northern, Missouri Western, New York Eastern and Oregon. <a href="#1a">Return to article</a>

<a name="2">2</a> CM/ECF alpha district courts included the District of Columbia, California Northern and Michigan Western. <a href="#2a">Return to article</a>

<a name="3">3</a> The district court counterparts were New York Southern, Nebraska, Indiana Southern, Pennsylvania Eastern, Texas Northern and Wisconsin
Western. <a href="#3a">Return to article</a>

<a name="4">4</a> The first wave (implementation began in March 2001) included Delaware, Iowa Southern, New Jersey, South Carolina, Utah and
Vermont. The second wave (implementation began in May 2001) included Alaska, Colorado, Montana, New Hampshire, Ohio Northern and
Oregon. The third wave (implementation began in July 2001) included Arkansas, Louisiana Eastern, Maine, Nebraska, Nevada, South Dakota,
West Virginia Northern, Wisconsin Eastern and Wisconsin Western. Recently, the AOUSC announced the forth wave (implementation to begin in
September 2001). That includes Alabama Middle, Alabama Southern, Illinois Southern, Iowa Northern, Kentucky Eastern, Kentucky Western,
Pennsylvania Western, Texas Eastern and Texas Southern. <a href="#4a">Return to article</a>

Journal Authors

Lee M. Jackwig

Journal Date

Saturday, September 1, 2001 - 12:00

Bankruptcy Rule

2001