Lambert v. Peterson, et al (No. 117,344) decided by the Kansas Supreme Court on April 19, 2019 is worth careful review by every efiling lawyer. Lambert highlights the dangers to litigants in an electronic filing system that discounts the actual pleadings filed in favor of immaterial metadata entered by filers to describe the pleading within eFlex.
Lambert’s lawyer filed a medical malpractice petition on the last day of the statute of limitations. The following day, the clerk of the district court worked the filing queue and rejected the petition because the clerk did not accept how the data describing the petition (metadata) within eFlex was entered. The lawyer refiled the petition, changing the metadata, but that resulted in the petition being file-stamped one day past the statute of limitations. Lambert ultimately lost her claim to a motion to dismiss because of that late file stamp.
Those facts admit Lambert’s lawyer to a large society of Kansas filers who routinely see legally-adequate pleadings rejected due to metadata issues. Under paper filing, Lambert’s lawyer would have walked the petition to the courthouse for a file-stamped petition at the window. The clerks trained to enter metadata about the case would enter it.
When efiling rolled out, it shifted that data entry task from clerks to lawyers. Now, a filing lawyer must know the law on behalf of the client and be able to ferret out the data entry policies of every county—unwritten policies that differ from court to court and which are usually discoverable only through trial and error. (Clerks may correct data entry issues but OJA recommendations and local rules tend toward rejection.)
As I write this, the Kansas Supreme Court is accepting comment on proposed rules which include an effort to address the Lambert issue. Proposed Rule 23(c)(1) narrows clerk rejection reasons to the following:
the document is illegible or in a format that prevents it from being opened;
the document does not leave a margin sufficient to affix a file stamp…;
the document does not have the correct county designation, case number, or case caption; and
the applicable fee has not been paid or there is no poverty affidavit submitted with the document or already on file in the case.
The change redirects clerk attention toward the document itself and away from the metadata in eFlex. Had this rule or focus been in place upon roll out, the Lambert rejection may not have occurred.
Proposed Rule 23(c)(2) also speeds up the review process in the clerks’ offices. Clerks must process a document no more than four business hours after filing. Because Lambert’s petition was submitted at 11:56 AM, the lawyer would have had the rejection by 3:56 PM the same day leaving time to refile within the statute of limitations. A promise of efiling was that the clerk window would always be open to receive filings. However, the rejection process, and the seeming missing audit trail for those rejections, places a caveat on that promise.
Proposed Rule 23 would likely eliminate most of the scenarios in which a Lambert set of facts could bite a litigant. It does not eliminate the possibility, however. First, there are no remedies for non-compliance within the Rule; it serves as a best practices aspiration but does not provide filers any enforcement. Second, there is still room for a clerk rejection unrelated to the document. For example, a dispute over whether a party is fee exempt could still generate a clerk rejection.
Proof of Filing
Because a clerk rejection can adversely impact a party’s rights under statute, the counsel in Lambert is important. The district court and Kansas Supreme Court have not taken judicial notice of the system they maintain to see the content of the original, timely filing. In some cases, lawyers have been told that the courts do not have access to see the same information we see on filing. It is also possible that there simply are no audit records or other digital trail left by documents that cannot survive a clerk rejection. Either way, the state of the court’s efiling system with respect to a pleading is, by nature, outside the pleadings—and that is significant.
The Kansas Supreme Court notes, “Certainly, a party responding to a motion to dismiss can go outside the pleadings to raise facts supporting the party’s response to the motion. But to do so, the party must follow prescribed procedures. Specifically, ‘the motion must be treated as one of summary judgment under K.S.A. 60-256.’” It continued, “Instead, Lambert (or any other party responding to a motion to dismiss) must, ‘by affidavits or by declarations pursuant to K.S.A. 53-601…or as otherwise provided in this section, set out specific facts showing a genuine issue for trial.”
If you have a time-sensitive document, start the filing process with eyes wide open toward how to prove by “affidavit, declaration, or testimony by a competent affiant, declarant, or witness based on personal knowledge setting forth facts that would be admissible into evidence” that the document was timely filed. Think about the checklists and business records your own staff can create which would prove filing. Pay attention to which clerks or other OJA staff might need to be subpoenaed to testify. The burden will be on you to prove you showed up at the clerk’s virtual window on time.
Originally published in the June 2019 Journal of the Kansas Bar Association.
Read Lambert decision HERE