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The Third Circuit Court of Appeals announced a proposed rule change recently that implements a 5 p.m. filing deadline:

26.1 Date of Filing and “Last Day”/ Deadline for Filing
Documents received by the Clerk by 5:00 p.m. Eastern Time will be filed as of the day of receipt and documents received after 5:00 p.m. will be filed as of the next day the clerk’s office is open, regardless of the means of transmission (electronic filing or otherwise). Documents received by 5:00 p.m. Eastern Time on the last day for filing will be considered timely filed, unless a different time is set by a statute, local rule, or court order. Documents received after 5:00 p.m. Eastern Time will be considered untimely filed. For documents filed electronically, the electronic transmission must be completed by 5:00 p.m. Eastern Time on the last day for the filing to be considered timely filed.

I read an article today on Law.com listing the various groups and bar associations pushing back against this change.

In my opinion, they are wrong to push back. At this point, the District of Delaware has had a time-based filing deadline for nearly a decade, and it has proven to be a great improvement, particularly for less senior associates and staff.

The 5 p.m. Filing Deadline Was a Success in D. Del.

My recollection is that Judge Robinson was the first to propose an earlier-than-midnight filing deadline. She added an 8 p.m. ET filing deadline in her form scheduling order way back in April 2014:

To be considered timely filed, all papers shall be electronically filed on or before 8:00 p.m. Eastern Time.

In October 2014, after a positive reaction to Judge Robinson's 8 p.m. deadline, the District of Delaware as a whole adopted a 6:00 p.m. filing and service deadline via a standing order:

Aside from initial pleadings, all electronic transmissions of documents (including, but not limited to, motions, briefs, appendices, and discovery responses) must be completed by 6:00 p.m. Eastern Time, in order to be considered timely filed and served that day.

I recall much sky-is-falling consternation among the bar around the time the Court initially adopted this rule. Particularly, some senior partners—notably, not the associates who had to stay until midnight most weeks—worried that it would drive clients away from Delaware, or that it was somehow inconsistent with Delaware's reputation for high-end/high-stakes patent and commercial litigation. Others worried that it would overly impact west-coast co-counsel, or that we wouldn't be able to get things filed on time.

None of those concerns proved true. Once the Court implemented the 6 p.m. deadline, everyone got on the same page very quickly. There were few impacts at all, really, other than the new freedom for attorneys and, particularly, law firm staff to spend more time with their families.

Once the new deadline was in place, it became clear that it's human nature to work towards whatever deadline is imposed—be it 5:00 p.m., 6:00 p.m., or midnight. And while it can always be difficult to get timely client sign off, it turns out "the Court says we must file by 6 p.m." is a great motivator.

The idea that clients wouldn't file here if we have a 6 p.m. deadline has proven silly as well. The deadline doesn't apply to initial pleadings (wisely), and I've never heard anyone say "we didn't file in D. Del. because we don't want to be subject to its filing and service deadlines."

In fact, in 2022, the District of Delaware moved the deadline back further, from 6:00 p.m. to 5:00 p.m. ET:

Filing documents electronically does not in any way alter any filing deadlines. Aside from initial pleadings, all electronic transmissions of documents (including, but not limited to, motions, briefs, appendices, and discovery responses) must be completed by 5:00 p.m. Eastern Time, in order to be considered timely filed and served that day.

Moving from 6:00 p.m. to 5:00 p.m. was another great improvement. It provides time for people to get things filed and still meet daycare pickup deadlines (I couldn't tell you how many filings I handled from my laptop in my car prior to the change—but it was a lot).

Even for those who would normally leave the office at 6 p.m. or later, which is generally the norm among attorneys, the feedback I've heard is that the change turned out to be great. It gives you time to wrap up after service or filing.

And, don't forget: the 5 p.m. deadline means that you get the other side's discovery and filings earlier in the day as well, and there is time to process them and start preparing a response that day. Nothing about the 5 p.m. filing deadline prevents you from working late into the evening, as many of us often choose to do regardless. It just gives you and your staff more freedom to choose not to work late.

There Are Lots of Complaints Regarding the Third Circuit Change—But They Are Wrong

The article lists several complaints about the proposed Third Circuit rule change, but I expect they too will prove to be unfounded:

  • The P.A. Bar Association claims "the proposal would . . . make the Third Circuit an outlier, causing confusion among practitioners who are only infrequently before the Court." A letter from "43 appellate lawyers" makes a similar claim. But this is why you use counsel who are familiar with the Court. Plus, the work-life balance improvements easily outweigh any momentary confusion out-of-town practitioners may have.
  • The Third Circuit Bar Association claims the change would could actually increase the amount of after-hours work because it would "impair . . . flexibility." The ACLU of P.A. makes a similar claim. Having lived through the original D. Del. changes as a busy associate, this is wildly off base. Major filings are frequently a team effort, and that "flexibility" to file at midnight just permits more senior team members to take their time while, often, forcing more junior team members to work late and miss family or personal time in order to handle the actual filing.
  • The ACLU and the U.S. DOJ likewise claim that this proposal would limit the ability to spend time with children between the end of the school day and 5pm. This ignores that the attorney can just file a couple of hours earlier in the afternoon, before the kids are out of school.
  • The Federal Public and Community Defender Offices in the Third Circuit claim that "the midnight deadline for appellate filing has no adverse effect on attorneys, staff, litigants, or the Court" because they only file after hours on "rare occasions." But that's not the reality for many attorneys, and how many of those "rare occasions" would have been necessary if there were a 5 p.m. filing deadline in place? I expect the answer is few, if any.

Nothing in the pushback letters resonated with me as a legitimate concern that would warrant reconsideration of the rule in light of the work-life balance benefits. In my view, it's a great change all around, and I hope the Third Circuit doesn't back down in the face of some opposition.

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