U.S. Supreme Court building on Tuesday, April 23, 2019.

In 2014, Chief Justice John Roberts Jr. suggested that electronic filing at the high court, once it had been operating effectively for some time, would become the official means of filing documents. After nearly three years in operation, neither e-filing nor even a pandemic has dislodged paper copies as the official filing by lawyers.

The nation's public health crisis has triggered concerns among some high court advocates about the paper copy filing requirement, which may require trips to the post office or the printer at a time when stay-at-home orders govern most states. One advocate is urging the court, in a letter to clerk Scott Harris, to consider adopting electronic filing as the official filing and to suspend the paper copy requirement for those filers who are able to submit documents by e-filing.

"When you have a stay-at-home order, would going to the printer or copy place be considered essential business?" asked attorney Elaine Mittleman of Falls Church, Virginia. "I'm sure they could say it is. But on the other hand, if you can simply send it by email, then no, it's not."

A representative for the U.S. Supreme Court did not immediately respond to a request for comment Friday. Mittleman said Harris has not responded to her request.

Lawyers across firms have advised the Supreme Court in filings about the impact the pandemic is posing on practical things such as delivering paper copies. In some instances, lawyers in pending cases have asked for more time to file certain pleadings.

"This additional time is warranted because we anticipate that COVID-19 will lead to logistical challenges in printing the reply and delivering it to the court. Counsel for respondent has no objection to this request," Mark Stancil, a Willkie Farr & Gallagher appellate partner, recently told the justices.

Stancil said his request for additional time was made out of deference to the printer to ensure that the printer wasn't put in a time squeeze.

"I'm fine with the paper [requirement] given the court's very accommodating response to the logistical difficulties now," Stancil told The National Law Journal. "I'm old enough to appreciate the paper. I'm in my home office and have several feet of Supreme Court filings in different colored covers."

At the Justice Department, the U.S. solicitor general's office has sought more time from the court to file paper copies. The government recently asked for, and received, a four-day extension to file paper pleadings in the case Bryant v. United States.

"This short extension is necessary because, in light of COVID-19, this office is endeavoring to minimize risks to the health and safety of our personnel responsible for the filing and service of paper copies of court documents by reducing the number of days each week on which the filing and service of such documents are necessary and on which those personnel must report to work in person," Noel Francisco, the solicitor general, told the court.

U.S. Solicitor General Noel Francisco. Credit: Diego M. Radzinschi / NLJ

Mittleman noted that the court sends an email notification that an electronic filing record has been submitted. But the notification also states that the petition filed "will be reviewed once the hard copy is received." There may be a lapse of several days between the e-filing submission and the review—and docketing—of the hard copy.

"They've added e-filing but they're still functioning like the paper submitted," she said. "I wouldn't have paid any attention absent this crisis. It just made me realize how absurd this is."

The court recently urged lawyers to send paper copies via mail or commercial carrier instead of hand delivery. Hand-delivered copies will be sent "offsite for screening before being delivered to the Clerk's Office," the court said.

Federal trial and appellate courts across the country are grappling with administrative process matters amid the virus pandemic. Many courts have postponed hearings and trials, and some courts are embracing video technology to conduct proceedings.

Just down the road, the U.S. Court of Appeals for the D.C. Circuit on April 1 said it was suspending its requirement that lawyers file paper copies.

"For briefs and appendices that are filed electronically, the requirement to file paper copies is deferred pending further order of the court. When feasible, parties may continue to submit paper copies in the normal course," the court said in an advisory.

The Supreme Court, which has canceled March and April oral arguments, is weighing options about how to proceed in the coming weeks.

"The court will consider rescheduling some cases from the March and April sessions before the end of the term, if circumstances permit in light of public health and safety guidance at that time," the court said in a statement April 3. "The court will consider a range of scheduling options and other alternatives if arguments cannot be held in the courtroom before the end of the term."

The term traditionally ends in June each year.

 

Read more:

SCOTUS, Canceling More Arguments, Says 'Other Alternatives' Are on the Table

New Normal Sets In for White-Collar Lawyers in the Virus Era

How the Pandemic Will Impact the Trump-Backed Lawsuit Against Obamacare

For Supreme Court Advocates, Virus-Era Delays Pose 'Stay Fresh' Challenge