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December 1, 2011
E-filing’s proponents: Get ready, it’s coming

By Gary Blankenship
Senior Editor

Any problems associated with moving to an e-filing system for all court documents are solvable, including providing that a handful of documents may also continue to be maintained in paper form, the Supreme Court has been told.
The court heard from a variety of parties — Bar rules committees, public defenders, state attorneys, and court clerks — during a wide-ranging oral argument on November 3 in case no. 11-399, dealing with procedural rule amendments necessary to implement e-filing in Florida’s trial and appellate courts.

Interest has been increased because after the initial filing, the court asked the Florida Court Technology Commission — which advises the court on technology matters and is overseeing the transfer to e-filing — to submit a proposal for making e-filing mandatory for lawyers.

The FCTC responded with a report that said court clerks would be ready by July 1, 2012, to receive all civil filings and by December 31, 2012, for all criminal filings. It recommended that e-filing become mandatory for those respective cases nine months after those dates. Deadlines for appellate filings would be the same as for civil filings.

Keith Park, chair of the Rules of Judicial Administration Committee, led off the presentations and told the justices that the hardest part of writing the e-filing rules was determining exceptions where paper documents would still be required.

“We have a mandatory e-filing situation, yet at the same time we have issues on what might have to be maintained as original documents,” he said. “I think part of that will work itself out over time and may require statutory changes.”

Park noted that the probate rules — the first area to become available for e-filing — originally had a long list of exceptions for documents that would have to be filed by paper. That was eventually reduced to two: wills and codicils.

“I think we’re all on the same page. The question is regarding these exceptions, how we are going to work with them,” he added. “This may be a work in progress with this rule as we go along.”

“Part of that is how much we trust the electronic world,” said Justice Barbara Pariente, who noted some of the justices — including her — bring their iPads with them on the bench.

“I think the challenge is that this electronic world has to be not only user-friendly, but it has to show both lawyers and judges that it’s going to give them great benefits on how they use it in their work,” Pariente said.

An electronic system that delivers a 2,000-page file to a judge will be useless unless it also gives the judge a way to organize and rapidly search that file, she added.

Donald Scaglione, chair of the Criminal Procedure Rules Committee, said the difficulty in criminal cases is both that many nonlawyer parties, such as police and probation officers, must file paperwork needed in a case, and that state attorneys and public defenders handle a massive number of cases and need the ability to do bulk filing.

The Criminal Procedure Rules Committee proposed that paper originals be required for “charging documents, indictments, informations, petitions, affidavits, plea agreements, documents filed under seal, ex parte documents, and any documents which are required to be sworn or notarized.”

Buddy Jacobs, representing the Florida Prosecuting Attorneys Association, addressed those paper filings, saying, “Can we trust the system to maintain the integrity of those documents? There’s some concern about the ability to pursue perjury cases because of the lack of an original document.”

He said prosecutors are more comfortable now than in the past that an e-filing system can be made workable, but he questioned whether legislators had allocated enough resources.

“We’re starting to realize if you want all these boats to rise at the same time, you have to put some water under them, and right now there isn’t any water out there,” Jacobs said. “. . . . We have some wonderfully talented people in all our circuits, but our funds are exhausted.”

John Tomasino, representing the Florida Public Defender Association, said the defenders believe e-filing will be practical and support it. But he said the PDs need electronic access to all case records, including those filed by nonlawyers.

“The public defenders are in support of this, if we can get 100 percent access to electronic files,” he said. “We think the rule needs to be expanded to require the clerks to provide electronic access to the entire file at the time the parties are required to e-file.”

Among other presentations to the court:

• Paul Regensdorf, a member of the FCTC and the Rules of Judicial Administration and Appellate Rules committees, told the court that problems, including those relating to criminal cases, can be worked out and that mandatory electronic filing is inevitable. He said no one would want to do away with the federal courts’ electronic filing system and return to paper filing. “The benefits are in the creation of an e-record everyone can use,” Regensdorf said. “The benefit in the long range is really unquestionable, both in the costs and the access.”

• Fred Baggett, general counsel for the Florida Association of Court Clerks, emphasized that electronic filing must be mandatory. “If we don’t make it mandatory, the costs of the clerks and the courts will increase significantly due to the fact of having to keep two sets of files, electronic and paper, and the difficulties that would create,” he said.

Baggett also said e-filing is only one part of a larger picture, where the clerks and courts go to fully electronic court and case maintenance and management systems. “None of this can happen until we get e-filing, but e-filing [by itself] is not the nirvana of the e-court system that we are all looking forward to,” he added.

• Tasha Dickinson and John Moran, co-chairs of the Probate Rules Committee, told the court that the committee believed that wills and codicils still needed to be provided in paper form, because there can be challenges to the authenticity and signatures of those documents. Moran also noted that technically those documents are “deposited” with clerks rather than filed, adding, “Our concern is to make sure any rule that’s adopted doesn’t allow these documents to be scanned and discarded.”

• Judge Judith Kreeger, chair of the FCTC, said the proposed e-filing rules apply to attorneys but do not apply yet to pro se or third parties, although that is being addressed by the FCTC for eventual inclusion. A major issue remaining is paying the upfront costs of the system, which will eventually save both courts and clerks considerable time and money.

“The big ticket issue is the resource issue,” she said. “The Legislature [which mandated the e-filing system] did not do any big fiscal impact study to see how much it was going to cost. There is going to be an upfront expense.”

Kreeger said the Office of the State Courts Administrator had gotten a grant to study those expenses, adding, “It will take them some time, but we will have that information.”

Justice Pariente speculated from the bench that the court may not include details for an e-filing system in the rules. Rather, she said, the rule may order the e-filing system to be implemented, as set out in a separate administrative order. That way, Pariente said, the court could alter the administrative order as needed without having to go through the procedural rule amendment process.

The court did not indicate when it might rule in the case. But one result came the day after the hearing, as officials from the FCTC and various rules committees began laying the groundwork, via e-mail, to identify which documents in court filings, including criminal cases, must still be done in paper.

[Revised: 04-14-2014]