In a typically thoughtful post, Ernie the Attorney proposes that we tree-killers (litigators) need to establish uniform rules for electronic filing. Personally, I'd love it, if the rules could be made to work. In particular, I'd love not having to retype a complaint or counterclaim in order to respond to it; not having to retype opponents' discovery requests in order to respond to them; and, perhaps most important, having a better shot at getting accurate quotations.

   One huge hole in these rules as proposed, though, concerns filings partially or completely under seal. It is not reasonable to expect clerks' offices and staffs to catch every possible improper crossreference to sealed electronic materials. <SARCASM> Neither is it reasonable to expect counsel to do so without being overinclusive, either. </SARCASM> In some complex litigation, there is a lot of sealed material. For example, in Ellison, about 75% of the discovery materials have been designated as "confidential," and therefore can be used only under seal. This proved a minor headache when preparing the appellate materials; we had to go so far as citing to the District Court's thoughtful, if not quite correct (in our eyes), opinion for the statement of facts to avoid citing to sealed documents. That is certainly not normal for the appellant!

   Another huge hole concerns proprietary formats. I favor use of Rich Text Format, which is the best cross-platform editable file format that maintains paper-formatting features. Admittedly, it's a poor "best," but it's certainly better than, say, some version of Word; it also has the added bonus that converting to RTF destroys almost all potentially harmful macros that may be embedded in a document (like the one I caught coming in about two years ago from a Very Large Law Firm whose IT department was not on the ball). PDF is great for "finished documents," but makes quotation from them rather difficult.

   I'll just be happy to kill fewer trees.