Paper Filings, Relics Elsewhere, Endure at SCOTUS Through Virus

April 2, 2020, 6:55 PM

With the rest of Washington beginning to grind to a halt over coronavirus and social distancing not yet the norm, senior paralegal Cheryl Olson left Jenner & Block’s office March 19 for a four-mile round trip to deliver briefs to the U.S. Supreme Court—on foot.

She wasn’t taking any chances with her health and safety, nor with the task she faced. Pandemic or no pandemic, the Supreme Court demands timely delivery of hard copy briefs and other filings, which in turn is helping to keep a niche of the stalled U.S. economy in business for the moment.

“Supreme Court Press is currently 100% operational,” said Geary Barton, president of the Boston-based company that’s one of several that handles printing work for federal court filings. They’re working remotely as much as possible, but have some employees present at the printer.

The “physical printing and shipping still require a presence in the 3D world,” he said.

It seems unlikely that the pandemic will spur a shift. “Paper filings are still required,” said Patricia McCabe, a high court spokeswoman. She added that a “substantially reduced number of staff are in the building to process the paper filings.”

Even with the recent introduction of electronic filing, most of the justices seem to be accustomed to and prefer reviewing filings in paper form, said Danny Rubens, a partner in Orrick’s Supreme Court and Appellate practice.

The Supreme Court has robust and exacting requirements for hard copy printing. Most briefs require 40 copies. Not only are there rules regarding timing (90 days to file a petition seeking Supreme Court review), but there are also requirements as to font (Century Schoolbook), binding (booklet format), quality of paper (not less than 60 pounds in weight), and even color (orange for a brief in opposition, for example).

All of these requirements remain in effect during the Covid-19 outbreak with much of Washington under a D.C.-government imposed stay-at-home order.

Still, the court has modified the way it collects hand-delivered paper filings. Those documents will now be sent “offsite for screening before being delivered to the Clerk’s Office,” the court said on Thursday.

“Parties are strongly encouraged to send filings by mail or commercial carrier rather than by hand-delivery,” the court said.

Lower federal courts generate their own print load, too, although filing deadlines and requirements there are frequently changing amid the pandemic. Unlike the Supreme Court, much of the work involving attorneys is being done remotely via teleconference or video.

As for paper requirements, the Boston-based U.S. Court of Appeals for the First Circuit has extended deadlines but still requires paper copies. Those are being delivered via a drop box. The New-York-based Second Circuit has generally suspended the print requirement, but still requires it for a handful of cases, like those involving pro se litigants, or those representing themselves. And the New Orleans-based Fifth Circuit has deferred the paper requirement, but will require parties to do so on a case-by-case basis, Barton said.

The jarring changes in the American workflow amid the pandemic has altered operations at printers, even though they’re still churning out documents.

At Omaha-based Cockle Legal Briefs, the pre-printing work can be done remotely, said Andy Cockle, president of the family-run business and a third generation legal brief printer.

But one person “is in charge of printing and delivering the hard copy,” Cockle said. That person “is the only person allowed in the building, so he is virtually quarantined.” He still has to deliver the printed versions to FedEx for delivery to the Supreme Court and service parties, though.

Robyn Dorsey Willis, co-owner of Wilson-Epes Printing said, her firm in Washington hand files them with the Supreme Court.

Supreme Court Press mails its material. “The Supreme Court uses a mailbox rule,” so the filing date is established by the date of the postmark, Barton said.

Law firms are coping with the changing landscape, too. “In our experience, this process hasn’t yet been disrupted by the Covid-19 situation,” said Orrick’s Rubens.

“In the past week, our D.C.-based printer successfully filed and served reply briefs in two cases my colleagues had been set to argue on March 30, before the Supreme Court postponed” them, Rubens said of Torres v. Madrid and Pereida v. Barr.

But Rubens recently had a paper filing due in state court in the New York Court of Appeals. They were forced to switch printers because their usual printer suspended operations in light of the city’s shutdown orders, he said.

“Going forward, it will be interesting to see if more courts end up relaxing paper filing requirements,” he said, “and if they don’t, whether printers will be able to continue functioning as essential business in the face of state and local restrictions.”

As for the Supreme Court, it doesn’t seem like the justices will make any drastic changes anytime soon even as they work from home.

Even with the introduction of the electronic filing system, the court still made clear that paper “remains the official form of filing.”

“The U.S. Supreme Court honors tradition,” Wilson-Epes’ Willis said.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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