One of the largest changes in the practice of law in the last decade is the implementation of electronic court filing, or “ECF,” as practitioners have come to know it. Gone are the days when documents were hand-delivered to the court and counsel by runners and warehoused for years by the court. Now, the filing and service of documents are accomplished with mere clicks of the mouse and those documents are stored by the court in electronic form.
The ECF revolution started with the federal courts and has slowly been adopted in Michigan state courts, including various circuit courts (although not all of them) and appellate courts. For the most part, the various ECF systems employed by the courts work well and have streamlined the practice of law considerably. However, the systems are not foolproof, as a recent example illustrates.
We recently appeared in court for a routine discovery motion, which had been filed and served on us through the Oakland County Circuit Court ECF system (Tyler’s Odyssey File & Serve Solution – previously Wiznet). Prior to the hearing our opposing counsel inquired if we had an objection to a second motion he had filed seeking leave to amend his pleadings. He asked because he had received no response to that motion, although we had responded to the discovery motion. Like most firms, we employ an ECF protocol for processing ECF filings, calendaring dates and ensuring that responses to pleadings and motions are timely filed and served. Given this, you can imagine our surprise when we asked, “What motion?”
Our investigation later that morning determined that there had been an error in the Tyler Odyssey system with regard to service of the motion in question (although curiously not the other one filed the same day). A copy of the email and “Service Details” report we received from Tyler is below for those of you who have never seen one (we hadn’t before this):
From: Johnson, Peggy [mailto:[email protected]] Sent: Wednesday, November 04, 2015 11:42 AM
To: Teresa Imbrunone
Attached is your stamped document.
Support Representative, eSolutions
Tyler Technologies, Inc.
Why the service error occurred we will never know. It was simply a “glitch.” In such instances, the Oakland County Circuit Court’s ECF rules (specifically Administrative Order 2007-3, which is posted on the Court’s website) provide as follows:
- Technical Malfunctions
(a) A party experiencing a technical malfunction with the party’s equipment (such as Portable Document Format [PDF] conversion problems or inability to access the pilot sites), another party’s equipment (such as an inoperable e-mail address), or an apparent technical malfunction of the court’s pilot equipment, software, or server shall use reasonable efforts to timely file or receive service by traditional methods and shall provide prompt notice to the court and the parties of any such malfunction.
(b) If a technical malfunction has prevented a party from timely filing, responding to, or otherwise perfecting or receiving service of an e-filing, the affected party may petition the Sixth Circuit Court for relief. Such petition shall contain an adequate proof of the technical malfunction and set forth good cause for failure to use nonelectronic means to timely file or serve a document. The court shall liberally consider proof of the technical malfunction and use its discretion in determining whether such relief is warranted.
This order can be found here in the event you ever need to refer to it.
Fortunately, in our matter professional courtesy remains alive and well and our opposing counsel simply agreed to adjourn the hearing on the motion to allow us time to obtain a copy of the motion and file a response. Nonetheless, if you find yourself in the same situation, or experience a malfunction with your own efiling equipment, knowledge and a review of Administrative Order 2007-3 is a must. It’s only a click away.
For more information, please contact Leif Anderson at [email protected].