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July 1, 2011
Employing e-service before e-filing would be exasperating

PDs don’t oppose e-service; they just think e-filing should come first

By Annie Butterworth Jones
Associate Editor

A proposed rule mandating attorneys exchange court documents by email rather than paper was debated before the Supreme Court in June, with public defenders and others asserting the rule not apply to criminal cases until mandatory electronic filing is implemented.

Proponents of Rule 2.516 argue that the changes required simply aren’t great enough to warrant an exception that could delay further technological advancement in the courts.

“Email service can be implemented with very little, if any, substantial change in capital expenditures, in training, or in anything else,” said Paul Regensdorf, a member of the Rules of Judicial Administration Committee and the Florida Courts Technology Commission.

“Respectfully, email service, as it’s presently proposed, is not a ‘new’ system. I think the vast majority of even small practitioners and public defenders — based on my talking with public defenders around the state — have and use email and computers substantially in their practice, if not exclusively….

“It’s taking email that they use every day, and computers that they use to generate the forms they say they generate every day, and simply not dumping them onto extra paper to send to the state attorneys.”

But the e-service system itself isn’t the problem, said 11th Circuit Assistant Public Defender John Morrison, representing the Florida Public Defender Association.

“The FPDA does not oppose e-filing,” said Morrison. “We’re wildly looking forward to the day that happens. What we oppose is the tail wagging the dog: e-service coming before e-filing.”

Morrison added that public defenders are often the last to know about technological advances. Morrison’s own offices in Miami-Dade still utilize what he described as “1983 technology,” which could make the e-service changes more costly than Regensdorf and other rule supporters realize.

“I’m not certain . . . whether there is any circuit in the state that is ready to do e-filing in criminal cases,” said Morrison.

That’s due to the large volume of cases public defenders and state attorneys see every year. Each case — 800,000 a year for public defenders, over a million for state attorneys — results in a multitude of paperwork.

“It seems so simple. You print off a document, why can’t you just email it to the state? And it is when it’s a document,” said Morrison. “It’s when you start thinking about the total volume, the batching, we just have to do this by huge batches, and that requires big computer systems, and we would ask this court that we only make the taxpayers do this once.

“When we’re going to invest in the computer systems to do this, we would like to invest the taxpayers’ dollars only once.”

Justice Fred Lewis questioned whether the equipment required for e-service would be immediately compatible with e-filing technology, an issue Morrison said would undoubtedly come up in the future.

“I believe that we will have to set up computer systems to be able to batch and appropriately distribute and appropriately receive emails from the state.

“Whatever that system will be created under this rule, this mandatory rule currently proposed, it would be a sheer miracle if that system could then dovetail into whatever e-filing system.”

Justice Barbara Pariente recommended an e-filing pilot project as a possible solution. The program would be instituted for criminal cases in three of Florida’s judicial circuits.

“The bottom line is still that they are under the kind of strain that we cannot even fathom with the budget cuts, and to implement a new system takes time,” Pariente said.

“I don’t see a downside to the suggestion that we exempt them and let them pick three pilot circuits and let them start to work on it. . . . Because they’re not saying, ‘We’re never going to agree to it.’ They’re just saying, ‘Right now, please don’t put it on us yet, especially if we have to paper file.’”

Other attorneys joined Morrison in his objections to the rule, including Sarasota lawyer Kurt Lee, who emphasized the unreliable nature of email, particularly when large files are involved; Matthew Capstraw, an attorney with the Family Law Section of The Florida Bar; and Lynn Rhodes, a sole practitioner who appeared on behalf of her indigent clients.

“There are issues out there that are causing real problems in the trenches when we say, ‘OK, everybody can have e-filing; everybody has a computer; everybody has access to the Internet; it’s no problem for people to go and view their case online, when it is,” said Rhodes.

Rule 2.516 was presented to the various Bar rules committees last January and was endorsed by all of them, with the Bar Board of Governors recommending the rule last October by a 36-3 vote.

[Revised: 04-13-2014]