What Firms Need to Know about Case Management and Electronic Case Filing before a Disaster Strikes

Hurricane Sandy caused widespread destruction throughout the Northeast. The federal court system was in its worst operational crisis since 9/11, even though the impact of Hurricane Katrina had a wider geographic impact. Sandy hit the most densely populated area in the country, causing many federal courthouses in New York and New Jersey to lose power.

In addition, a quarter of the area’s wireless cell towers were out of commission, and some 911 centers failed to operate.

Fortunately, according to AmericanBar.org, the federal courts, after learning of Sandy’s impending arrival, invested in resiliency to protect its technology and information. For example, IT managers in New York, New Jersey, and other areas switched IT systems over to replication sites, and, during the hurricane itself, these IT systems monitored and reported new filing activity. According to the data, although servers allowed filings to continue during Sandy and its aftermath, new filings dropped significantly and remained at a lower level the week after the storm. Faced with severe conditions at their offices and homes, many attorneys, parties, and the public were unable to gain access to electronic filing systems for over two weeks, even though the replication was working properly.

Therefore, many firms likely need improved information and communications technology (ICT) readiness for business continuity programs. Smaller firms were likely more affected than larger firms that had access to resources in other locations. Some practitioners commented that they took their servers from their officers to their homes before the storm hit. With extended ICT disruptions, attorneys cannot communicate with clients and cannot work in their normal office environments. They may lose access to electronic files, data, and research modules. Business may come to a grinding halt without proper precautions.
 

• See Crisis Communications: How to Manage Them Effectively for more information.

 
Federal courts use CM/ECF for electronic filing in appellate, district, and bankruptcy courts, as well as the United States Courts of Federal Claims and the Court of International Trade. These documents can be accessed through PACER (Public Access to Court Electronic Records). CM/ECF offers attorneys the opportunity to immediately update dockets, upload pleadings electronically, and download documents and print them off. Many courts also use CM/ECF for calendaring and docket completion. Typically, if such a system fails, the affected court will switch to a replication server that is hosted by the Administrative Office of the U.S. Courts. An internal representative will be appointed to ensure proper scheduling is completed, even if the function must be performed manually. Thus, firms should follow regular scheduling procedures, as dictated by federal and local rules. If the CM/ECF systems do not work, then attorneys should look at the instructions listed on court websites.

As for ongoing litigation, many courts have procedures in place to ensure it continues without issue. In criminal cases, if the claims are especially serious or significant, and the accused is in custody, a hearing will be set in front of a judge as soon as possible. Appearances may be conducted by video conference, if the defendant consents. Hearings may be transferred to other locations as well. Other hearings may suffer delays of up to one year.

In bankruptcy cases, emergency hearings are uncommon. Some courts allow video conferencing or teleconferencing for evidentiary hearings, and some have contingency plans and arrangements with other courts to move hearings to other locations. Other matters will be delayed.

In civil matters, emergency situations will be set in front of a judge, and some courts may also move hearings to other locations. Other cases will be delayed until the court opens again.

In courts of appeals, emergency matters take priority. These typically involve issues of life, liberty, and irreparable harm.

CM/ECF replication and failover services allow impacted courts to move to a replication service that is hosted by the Administrative Office if their CM/ECF services are disabled. There will be no differences in how firms file.

Other issues, such as hardware and communication failures, may interrupt a court’s local CM/ECF system. Though rare, these incidents can happen. Judges, attorneys, and the public will depend on CM/ECF replication in these situations until the courthouse can restore its services.

Replication servers duplicate a court’s CM/ECF environment. Every entry that is made, such as a data edit or a docket entry, is copied to a “replication database” at a facility operated by the Administrative Office. These servers hold the database and case documents that are in the court’s file system. No detectable differences are noted when these systems must be used. For CM/ECF to be unavailable to users, typically, hardware failures, issues with communication services, or scheduled downtime for maintenance is to blame.

Ultimately, each attorney should check the court’s website for any special instructions. If urgent cases are interrupted by inclement weather or other incidents, these attorneys need to be prepared to travel if hearings are moved. Duties are not waived during a disaster, and attorneys must take whatever steps are necessary to advocate for their clients.

The Wisconsin Bar recommends keeping the following items off site in case of disaster: insurance policies, banking and trust accounts, lease information, off-site backup disks or tapes, income records, a recent valuation of the firm’s property, library contents and subscriptions, information about office equipment, a calendar, and court contact information. Having such information handy will make recovering after a disaster much easier.

Source: AmericanBar.org

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