‘A significant and important step toward our goal of a fully electronic court system’
By Gary Blankenship
Before the end of next year, Florida lawyers will be required to electronically file their court documents and use email to exchange documents and serve other parties in litigation.
The Florida Supreme Court on June 21 issued two opinions adopting procedural rule amendments that set deadlines for e-filing with the courts and for using email for parties to exchange case documents.
The rulings formalize a massive change in courts, transitioning to use as little paper as possible, and the reverberations are expected to have a major impact on law firms, which will have to adjust to the electronic operations of the courts.
The opinions were praised by Bar Board of Governors member Laird Lile, who also serves on the Supreme Court’s Florida Courts Technology Commission overseeing the technological overhaul of the courts.
“The practice of law continues to evolve. With the coming of age of e-filing and service by email, the practice of law in Florida takes great strides into the electronic age,” Lile said. “I am confident the Bar and the commission will deploy resources so that every member of The Florida Bar has an opportunity to acquire the knowledge necessary to exist in this new e-world. Of course, the members also have an obligation to be prepared when service by email becomes mandatory on September 1, 2012, and e-filing is required in 2013.”
(Separately from the e-filing and email service rulings, the court recently approved an amendment, which was effective July 1, requiring lawyers with business email addresses to file those with the Bar. See story on page 1.)
The court required that electronic filing in appellate cases for the five district courts of appeal and the Supreme Courts will be mandatory as of October 1 of this year. (The Supreme Court began accepting voluntary e-filings on July 2.)
E-filing in the trial courts for civil, probate, small claims, and family divisions will be required as of April 1, 2013. E-filing in criminal, traffic, and juvenile divisions of the trial court will be required as of October 1, 2013.
About 50 counties are currently able to accept civil filings in all divisions. The Florida Court E-Filing Authority, in a supplemental filing with the Supreme Court, said it expects all counties to be able to accept all civil filings by March 1, 2013. The authority oversees the Internet portal through which e-filings are done. Court clerks have said they hope to be ready to accept criminal filings by the end of the year.
In the email service opinion, the court initially said that service between parties would be mandatory in civil, probate, small claims, and family divisions as of July 1 —only nine days after the opinion was issued. On June 27, it amended that opinion and set a September 1 deadline for mandatory email service for those cases.
For criminal trial court matters, the court acknowledged that state attorneys, public defenders, and regional conflict counsels have limited staff and budgets to accommodate the technology improvements and training necessary for email service. So it set the deadline for email service in those cases as the same for e-filing — October 1, 2013.
“The proposed amendments represent a significant and important step toward our goal of a fully electronic court system by transitioning from permissive to mandatory electronic filing (e-filing),” Justice Barbara Pariente wrote for the court in the e-filing opinion. “Also in furtherance of this goal, in a separate, related case we adopt amendments to the rules of court to require email service of pleadings and documents between parties, and we have coordinated the dates on which those rules will become effective so that email service will serve as a first step in preparing practitioners to function in an electronic environment. . . .
“The new rules and amendments to the existing rules at issue in this case will require attorneys to file documents with the trial and appellate courts by electronic transmission and will operate in tandem with the new mandatory email service requirements for pleadings and documents. The proposed amendments will also require the clerks’ offices to maintain electronic court records, to convert paper documents to electronic documents, and to electronically transmit the record on appeal.”
The court urged lawyers and clerks to voluntarily begin e-filing and email service before the mandatory deadlines. It also said, “The Florida Bar, in coordination with the Florida Association of Court Clerks and Comptrollers (FACC), should undertake comprehensive educational outreach so that litigants and clerks are fully informed of the requirements and the substantial benefits of mandatory e-filing.”
There are only a few exemptions from the mandatory requirements. Pro se litigants, self-represented non-parties, such as law enforcement agencies and the Department of Children and Families, that provide records and paperwork for court cases, are not required to e-file or use email service, although they are encouraged to do so. Attorneys who do not have an email or Internet access at their offices can petition a judge for an exemption. Filings larger than 25 megabytes of data may be submitted via electronic storage, such as flash drives or CD-ROM, instead of e-filed.
The email service rule (Rule of Judicial Administration 2.516) requires that attorneys who have email addresses provide the court with a primary email address and allows them to add two secondary email addresses for receiving service. Emails used for service may not exceed five megabytes in size, although they can be broken up into multiple emails. The email must contain, in all capital letters, in the subject line the words “SERVICE OF COURT DOCUMENT,” along with the case number, for that proceeding. Documents must be in the PDF format.
The Criminal Procedure Rules Committee had originally proposed that 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 continue to be filed by paper. The court had initially found that a too broad exemption, as it applied to nearly all documents in a criminal case, and appointed a workgroup to review the matter.
After getting the workgroup’s recommendations, the court cut that list to only verified and sworn documents and original paper judgments and sentences. In those instances, clerks will put electronic copies in the digital file and maintain the paper copies separately.
In line with the recommendation of the Probate Rules Committee, the court also said that the written copies of wills and codicils must be retained by the clerk in paper form for 20 years.
Details of the e-filing system are in Rule of Judicial Administration 2.525, and the court also amended other procedural rules to conform with that rule.
Perhaps fittingly, given the complexity of the process where the Florida courts are becoming paperless and entering the electronic world, the day the court issued the two opinions the Rules of Judicial Administration Committee met during the Bar Convention in Orlando and voted to submit as emergency amendments some tweaking of the email service rule. (See related story, here.)
Committee members noted the email service rule is actually intended to be temporary. While it intended to help attorneys become familiar with the electronic world and e-filing, it is also expected to be eventually largely replaced by the Internet portal through which electronic filing is done. When fully developed, the portal will automatically notify other attorneys in a case when a document is filed, and also provide them with a link to that document.
The implementation of e-filing and email service will also be a major change in procedure for lawyers and law firms. According to information from the Florida Courts E-Filing Authority, which oversees the e-filing portal, while the number of attorneys signing up for e-filing and the number of documents being electronically filed is rapidly increasing, as of June the vast majority of lawyers were not signed up to do e-filing and hence most documents are still filed via paper.
The court acted in cases nos. SC10-2101 (email service) and SC 11-399 (e-filing).