Central District Judges Seek Input on Continued Use of the ECF Declaration

The Issue.  

In connection with the introduction of electronic filing in the late 1990’s, the Court adopted a local form called the “Electronic Filing Declaration” and related local rules.  The Electronic Filing Declaration and related rules permit attorneys to electronically file pleadings bearing an “/s/ Nonattorney Name” in lieu of the holographic signature of the debtor.

Although it is acknowledged that the Electronic Filing Declaration and related procedures may have served a useful purpose at their inception, judges of the Court have observed that the Electronic Filing Declaration is frequently misused – both inadvertently and intentionally.   In some instances, judges of the Court have found that the form and related procedures have been used to create the false impression that a debtor or other non-attorney has signed a pleading that the party has not actually signed.

Moreover, enforcement of the rules regarding the proper use of this form and the related procedure impose an administrative burden on the clerk’s office staff that may no longer be justified by any benefit the form and rule provide.  

Specifically, the declarations under penalty of perjury contained in the Electronic Filing Declaration forms require the debtor (or other non-attorney) and filing attorney to attest that the pleading actuallyhas been signed and the signature page actually received by counsel.  Under  these circumstances, modern software and hardware make it easy and inexpensive to electronically insert a scanned signature page into the Adobe Acrobat file containing the relevant pleading.

The Proposal.

The Rules Committee of the Court is considering eliminating the Electronic Filing Declaration and related local rules permitting its use in lieu of a holographic signature.  

If these changes are adopted, counsel  will no longer be able to represent the signature of a debtor or other non-attorney in a filed pleading with a “/s/”.  Instead, counsel will be required to include in any filing purportedly signed by a debtor or other non-attorney the holographic signature(s) of such party.  

This proposal is intended to eliminate both the mischief and inadvertent misuse generated by the existing procedures, reduce the burden on the Clerk’s Office, and increase the confidence of the Court and the public that papers purportedly signed by debtors and other non-attorneys actually have been signed by those parties.

Your Feedback Is Needed.

Because the proposal would result in a significant change in practice for those attorneys that currently use the Electronic Filing Declaration, the Court is inviting your input.  Are there circumstances under which the proposal would create an undue burden on counsel or their clients?  If so, what are those circumstances and how common are they in your experience?   Would you favor any exceptions where the Electronic Filing Declaration might still be permitted?  If so, please explain those exceptions and the reasons you would implement them.

Thank you for your time and input.

  Hon. Martin Barash
United States Bankruptcy Judge
Central District of California
San Fernando Valley Division 

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