Contra Costa Superior Court is enforcing fax filing rules that will impact attorney services.
It will affect all efilings, but the rule particularizes and singles out attorney services who file fax filings that are not in compliance with California Rule of Court sec. 3.1110(f) when the filings are not properly tabbed.
It will require any fax filing to be 1) stamped with the name, address, and phone number of the attorney service filing documents by fax, and 2) a certification of an employee that the document filed complies with CRC sec. 3.1110.
For those fax filings that do not comply with the local rule, the clerk will submit the non-compliant filing to the presiding judge who may then levy sanctions.
What is particularly offensive about this rule is that it targets attorney services, and authorizes sanctions for violating the local and California Rule of Court. This appears to be unprecedented. Also, it seems to demonstrate a pointed frustration with attorney services who have been submitting non-compliant documents to the court.
This is the new rule, and the portion that will affect attorney services is bolded in red:
Contra Costa Superior Court Rule 3.42. Papers to Comply with State Rules
(1) Moving, opposing and reply papers must be filed and served with the Court and parties within the time prescribed by law. The Court will not consider late filed papers unless good cause is shown at the hearing.
(2) All memoranda and other papers filed in support of, and in opposition to, motions shall comply with the requirements of the California Rules of Court.
(3) Despite rule 3.1110 of the California Rules of Court, subdivision (f), a large number of documents filed with the Court include exhibits that are not properly tabbed. The majority of these non-compliant documents are fax-filed through an attorney service. The attorney service prints out the documents and files them without tabbing the exhibits. The purpose of this rule is to discourage such rule violations, which impose a substantial burden on judges and staff.
(A) Every fax-filed document shall be stamped on the first page with the name, address, and telephone number of the attorney service that prepared the document for filing.
(B) Every fax-filed document or set of fax-filed documents shall include, as a separately filed document, a certification by an employee of the attorney service that the document or documents have been reviewed for compliance with rule 3.1110 of the California Rules of Court, subdivision (f), and that all exhibits have been properly tabbed.
(C) If a particular attorney service repeatedly files documents with untabbed or improperly tabbed exhibits, the matter will be referred to the presiding judge for appropriate action.
(D) Counsel of record should take note the Court has and will continue to impose monetary sanctions on attorneys who file documents with untabbed or improperly tabbed exhibits, regardless of whether such documents were fax-filed through an attorney service, and in some instances will disregard those documents or drop a hearing from calendar based on the rule violation.
(Rule 3.42(3) new effective 1/1/17)
(Rule 3.42 revised effective 1/1/17)
The California Rule of Court sec. 3.1110(f) referenced in the local rule is included below:
. . .
(f) Format of exhibits
Each exhibit must be separated by a hard 81/2 x 11 sheet with hard paper or plastic tabs extending below the bottom of the page, bearing the exhibit designation. An index to exhibits must be provided. Pages from a single deposition and associated exhibits must be designated as a single exhibit.
. . .
This will likely spread to other courts if it hasn’t already.
This highlights a rather onerous effort to perform a fax filing. Perhaps it was always there and I didn’t realize it.
- Does the stamping of the name of the attorney service, address, and phone number constitute an alternation of the faxed document? It isn’t a material alteration of the content of the document, but comes close to an alteration nonetheless.
- Does this local rule contradict the California Rule of Court for fax filings?
- Does adding “a hard 8-1/2 x 11 sheet with hard paper or plastic tabs” constitute an alteration if the faxed copy does not?
- If not, who is subject to reprimand and/or sanction?
- Has anyone priced plastic exhibit tabs lately?
The CRC apparently does not require tabs for courtesy copies to the Dept. Once efiling takes hold, all of this would be moot.
Furthermore, each fax filing now must accompany a stand-alone certification by an employee of the attorney service will add yet more time and handling for fax filings.
- Does that signed Certification limit the use of independent contractors for fax filings?
- Does that make the employee liable for sanction by the court?
- Vicarious liability imputed to the employer is not presumed in the rule.
- Are we now required to pick through several the 200+ pages of exhibits after a firm shoves the documents into an email or fax machine without delineating where the exhibits start and stop?
- Are attorney services required to plow through the exhibits and separate out the
Exhibits A,B, or C, that are attached to Exhibits A, B and C appended to the actual exhibits to the filed document?
Fax filings are going to get a whole lot more expensive with all of this handling.