SCOKY Amends eFiling Rules Effective August 1, 2018 (Part 1 of 2)

In Order 2018-11 (issued June 21, 2018, effective August 1, 2018), the Kentucky Supreme Court amended the Kentucky Administrative Rules of Practice and Procedure for the Kentucky Court of Justice Electronic Filing Pilot Project (“eFiling  rules”) in several notable ways.

First, new Section 4(2) states that no local rules, practices, procedures or orders of any district or circuit court may conflict with the eFiling rules. Previously, Section 4(1) merely stated (as it continues to) that to the extent the eFiling rules are inconsistent with any other rules (including local rules), the eFiling rules will control in cases subject to electronic filing.

Next, Section 5(11) now provides that an electronic signature may consist of an electronic image of an original handwritten signature. Previously that Section provided that an electronic signature consists of “/s/ typed name.”

The new rules change most of the rules’ references to hourly time to “the time zone of the receiving court” in deference to those venues in the Central Time Zone. Previously all times listed in the rules were in Eastern Time. The only continuing reference to Eastern Time is in Section 18(2)(b), which now provides that the AOC‘s eFiling help line is available on weekdays (not including holidays) between 8 AM and 5:30 PM Eastern Time.

In the new rules, the definition of “technical failure“ in Section 5(23) provides that such a failure “can also include the malfunctioning“ of an eFiler’s equipment. The prior rule stated that malfunctioning equipment “does not” qualify as a technical failure. The significance is that under Section 18(2), a technical failure causing prejudice to the eFiler can qualify for relief under certain circumstances.

Amended Section 6(1) now permits self-represented (i.e., pro se) parties who undergo AOC training (not just licensed attorneys who have undergone training and are representing themselves) to be authorized eFilers.

Amended Section 8(4)(b) now provides that an eFiler who is notified of an error, receives a return envelope from the clerk, and then makes corrections to the filing is “limited to [correcting] the specific error(s)” identified in the rejection notice. The prior rule contained no such limitation.

New Section 9 governing discovery documents provides that discovery requests “and responses as identified in CR 5.06 and RCr 7.24 shall not be electronically filed” unless ordered by the court, to be used at trial, necessary to a pretrial motion, propounded with the summons and complaint, or filed by stipulation. The eFiling rules previously provided (in Section 11(7)) that the eFiling system “will not be used for the electronic exchange of discovery materials… that are not intended to be filed with the court” but then provided the exceptions now listed in Section 9 for when discovery requests or responses should be eFiled. See this 2010 blog post concerning the filing of discovery material generally. It should be noted that the most common practice among Kentucky litigators is not to conventionally file discovery responses, but the various rules relating to it are equivocal on the point. The eFiling rules certainly support the conclusion that discovery responses are not to be filed either electronically or in paper form unless one of the listed exceptions applies.

More to come in Part 2 of 2.

David Kramer is a Partner and Chair of the Litigation Section of DBL Law, with offices in Cincinnati, Ohio, and in Crestview Hills and Louisville, Kentucky.