Our friends and partners at InfoTrack have been sharing e-Filing tips for attorneys and closely following the Illinois courts’ input on e-Filing issues since the state’s e-Filing mandate. The following guest post was written by InfoTrack’s VP of Product and attorney Eunbin Rii. He shares the following new cases so that Smokeball and InfoTrack clients and all Illinois attorneys are aware of a developing body of post-mandate e-Filing caselaw.
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Harsh Results for e-Filing Mistakes from the Second District Appellate Court of Illinois
By Eunbin Rii
The first two appellate opinions regarding e-Filing mistakes have been issued and the results are harsh. Both cases are out of the Second District Appellate Court of Illinois and deal with the timeliness of filing and errors made by the filing attorney. The first case is a cautionary tale and highlights the importance of not waiting till the last minute to file. The second case is alarming and raises an issue that the courts and clerks must deal with then a timely filing is rejected by the clerk.
The 11th Hour Filing
In the first case, Peraino v. County of Winnebago, 2018 IL App (2d) 170368 (Ill. App., 2018) the plaintiff attempted to electronically file a motion to reconsider two minutes before midnight. In Peraino, the trial court granted the defendant’s motion for summary judgment on December 2, 2016. Plaintiff had 30 days to file a motion to reconsider, which calculated to January 3, 2017 due to the 30th day falling on Sunday followed by a court holiday.
On January 3, 2017, the plaintiff’s paralegal “attempted to upload the motion beginning at about 11:58 p.m.” The plaintiff’s attorney “”alleged that, during the e-filing process, the I2File website would not upload the motion, and the motion was not considered accepted or filed by the system until 12:03 a.m. on January 4, 2017.” As a result, the trial court denied the plaintiff’s motion to reconsider and his motion to reconsider nunc pro tunc because the motion was not filed timely due to user error with no technical defects in the software or electronic filing system.
The Court’s analysis of plaintiff’s appeal considers jurisdictional requirements of timely filing and the Supreme Court rules regarding technical issues one may have when e-filing. Specifically, the Court stated that Rule 9(d)(1) does not apply as it applies to an “electronic filing system technical failure.” “Although Rule 9 does not define ‘technical failure,’ the Manual defines it as ‘a malfunction of the e-filing provider’s or the Court’s hardware, software, and or telecommunications facility which results in the inability of a registered user to submit a document electronically. It does not include the failure of a user’s equipment.'”
As a result, the court dismissed the plaintiff’s motion and and stated that plaintiff’s attorney “waited until less than two minutes before the deadline to attempt to electronically file the motion and unfortunately was unable to upload the motion within that time.”
Little Mistake – Harsh Result
In the second case, In re Marriage of Bordyn, 2018 IL App (2d) 180017-U (Ill. App., 2018), the Appellate Court held that the petitioner’s notice of appeal was untimely although the petitioner electronically filed on time. However, the filing was rejected due to the petitioner’s error of filing two pleadings in one document instead of separate documents.
In Bordyn, the trial court entered an order on December 5, 2017 resolving remaining claims in the case. The petitioner-appellant had 30 days to file a notice of appeal and notice of filing, which was January 4, 2018. On January 4, 2018, the petitioner electronically filed a notice of appeal and notice of filing as one document with the circuit court, which the clerk’s office received at 2:37 p.m.
The next day, the petitioner received a rejection notice from the clerk stating that his filing had been rejected because the notice of appeal and notice of filing had been sent as one document. The notice instructed the petitioner to upload the notices as two separate documents. Upon receipt of the rejection notice, the petitioner immediately made changes and resubmitted the documents electronically to the clerk’s office. The Clerk’s office then reviewed, accepted, and file stamped the documents with January 5, 2018 – day 31.
The petitioner asserted that it was unreasonable for the system, or the Clerk’s office, to wait until the next day to decline to file both documents, and had he been advised on January 4, 2018 that the documents needed to be separated, he could have timely corrected the alleged deficiency.
The court in Bordyn looked to the Electronic Filing Standards paragraph 3 – Filing of Electronic Documents – which provides “[a]ny electronic document or record submitted to the clerk of the court for filing shall be deemed filed if not rejected by the clerk.” The court then referred to the Electronic Filing Procedures and User Manual paragraph 7 – Timing of e-filing; mechanics for further guidance. Paragraph 7(d) states “[a]n e-filed document submitted to the Clerk for filing shall be deemed filed upon review and acceptance by the Clerk.” Paragraph 7(f) states “[i]n the event the Clerk rejects a submitted document, the document will not be filed and the registered user will receive an electronic notification of the reason(s) for the rejection.”
Based on the e-filing standards provided, the electronically filed documents are not considered filed until they are accepted by the clerk. Thus, the court held that the petitioner’s notice of appeal was untimely.
The outcome of Bordyn seems harsh because, as the concurring opinion states, “[b]efore e-filing, had petitioner submitted two documents that were improperly stapled together, the clerk would likely have simply removed the staple and filed the documents.” The Justice continues to offer a solution stating “[i]t might be advisable to clarify the scope of the clerk’s power of rejection. Perhaps, the filing date of a document that is rejected under the circumstances that exist in this case and then correctly resubmitted should automatically relate back to the date of its original submission.”
The first two cases on e-Filing makes clear that mistakes are bound to happen if you are not fully prepared. In Peraino, the attorney literally waited till the last minute to electronically file. Just because you have till midnight does not mean you should do it. You never know what might go wrong and mistakes can lead to malpractice issues. Also, using an e-Filing service provider that is easy and quick will help you if you happen to be filing the last minute. When you are pressed for time, you don’t want the hassle of clicking multiple times, searching for documents and converting to PDF on your own. Select a service provider that makes things seamless.
In Bordyn, the attorney filed on time but failed to follow the filing procedures. I like to advise our clients to file documents as you would get them file stamped when you filed with paper. For example, if you have a summons and petition, the summons and petition must have separate file stamps. So, when you eFile, file the summons and petition as separate documents to get a file stamp on each of the documents. In Bordyn, the attorney had two document, the notice of appeal and notice of filing. If the documents were paper filed, you would have the clerk’s office file stamp the documents separately. They wouldn’t get a single stamp for both documents. Similarly, when you eFile, make sure that you file documents that you need file stamps on as separate documents.
E-Filing is not just a technology challenge. Just like the best legal time tracking software, e-Filing changes how you work in the office. It will be even more challenging if you don’t have a trusted advisor and dedicated e-Filing service provider on your side. InfoTrack is a certified EFSP and we can help you through every step of the process. We also provide integrations with the industry’s top practice management software and document management solutions to make e-Filing as efficient as possible. Our dedicated and talented staff are available to help you adjust your workflow to ensure you are making all the right e-Filing decision.