Federal courts move to require PDF/A for e-filing

Federal courts are moving towards adopting PDF/A as the standard format for electronic filing, which is prompting many attorneys to say, ‘What is a PDF/A?’ The federal courts have anticipated this question and responded with an FAQ page on the PACER site. As that site points out, PDF/A is a widely recognized subset of the PDF standard designed for long term archiving. Since the primary goal of PDF/A is long-term archiving it excludes those PDF features that would hamper access to the file later on. (Read this WikiPedia entry for more information on PDF/A).

So why are federal courts transitioning to PDF/A? Basically, to ensure that electronic records are preserved as far into the future as possible. Federal courts seek to comply with the requirements of the National Archives and Records Administration (NARA).

Federal courts will vary as to when they start requiring that documents be filed in the PDF/A format, but all courts currently will accept PDF/A files if they are uploaded to the CM/ECF system. If you want to create a PDF/A it’s pretty easy: just open a PDF in Acrobat and choose ‘SAVE AS’ and then select PDF/A as the format.

As I mentioned in the beginning, one key aspect of PDF/A is that it doesn’t have all of the features of a regular PDF. For example, multi-media files are disabled in a PDF/A. So, for example, an embedded audio or video file would not work. And hyperlinks are also not preserved, at least not ‘masked hyperlinks.’ A string of text that says click here and clearly contains a link (as the ‘click here’ text in this sentence does) is a ‘masked hyperlink.’ An unmasked hyperlink would look like this: http://www.svensonlaw.com. Supposedly, unmasked hyperlinks might still work in a PDF/A document. But my tests suggest that they do not.

Why should attorneys care about whether links (masked or unmasked) work in PDF/A?

Well, increasingly, attorneys are discovering that having the ability to link to external material is a useful tool. One could easily imagine a brief where each case citation was a hyperlink to the case in Google Advanced Scholar. Or if the attorney needed to cite to a video deposition that was stored on YouTube then they could link to the deposition using a hyperlink.

Except that PDF/A won’t allow this.

A friend of mine who works at a federal court told me that the judges are considering exceptions that would allow the filing of a PDF document, rather than a PDF/A in certain situations (e.g. if attorney needs to embed an audio file of a hearing or proceeding). Even so, I wouldn’t count on many exceptions being allowed. Once PDF/A becomes the standard expect it to be rigorously enforced.

Naturally, the prospect of a fundamental change like this will bring out some opportunists.

For example, I’ve heard discussions by vendors of PDF compatible products suggesting to attorneys that ‘they will need to figure out how to mass-convert their current PDFs to PDF/A.’ This strikes me as a bit over-the-top. Attorneys don’t need to mass convert their PDFs because the court’s requirement will kick in on a ‘going forward’ basis. New filings will, at some point, have to be made in PDF/A format, but the old stuff is in the system and no one is going to expect the attorneys to re-file all their pleadings. Maybe the federal courts will look to mass-convert their PDFs, but I doubt it.

So, that’s the story on PDF/A and the upcoming change in e-filing. It’s good that federal courts are addressing long-term archival issues of their electronic records. Whether attorneys need to do the same thing is subject to debate, but I would say that most of them certainly don’t need to rush to change their current workflow. If you’re interested in learning everything possible about PDF/A (and have about $70 burning a hole in your pocket) then you might want to read PDF/A in a Nutshell. (Interestingly this book is not widely available, which may explain its exorbitant price; perhaps it should have been printed in PDF/A format.)

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About the Author: Ernest Svenson

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