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July 15, 2014
E-service change draws questions

By Gary Blankenship
Senior Editor

A seemingly innocuous change to the software that runs the portal that handles electronic filing for the Florida court system has sparked a controversy about whether the change was wise or authorized.

A software upgrade on June 20 changed the ways parties are selected for the electronic service system,which is part of the portal when a document is filed.

Before the change, lawyers involved in a case could add parties for the e-service list. Everyone on the list automatically received an emailed copy of the filed document, unless the filing attorney (or the attorney’s staff performing the filing) went through the list to check off parties that would be omitted from getting the document.

Under the new system, automatic service is over. Attorneys must perform an extra step of checking a box that they want all parties served or go through the list and check which parties they want copied with the filed document — similar to what they did with paper filings. (Using the electronic service system is still voluntary and lawyers can continue to serve via email or regular mail.)

Officials for the Florida Courts E-Filing Authority, which oversees the portal and approved the software change, say the change mitigates the problem of attorneys and parties who only have a brief involvement in a case from being copied with all filings until the case is over if they can’t get removed from the service list. There’s only a slight increase in work for filing attorneys, they say.

“There were recommendations to make it more like the paper [filing] world where you have to select recipients instead of automatically selecting everyone on the list,” said Putnam County Clerk of Court Tim Smith, chair of the E-filing Authority.

But others say the change now requires extra work every time a document is filed and raises the possibility that attorneys who try to go through the service list will omit a party who should have been served. They note that if filers decide to be cautious and check the “serve all” option, the software change has accomplished nothing except requiring an extra step for filers.

Questions have also been raised about whether the portal authority had the power to make the change without first getting permission from the Florida Courts Technology Commission. The FCTC is in charge of setting policy and coordinating the transfer of Florida courts from a paper-based to an electronic-based system.

All registered attorney users of the portal received an email notifying them of the e-service change when the software update was installed. In addition, reminders were installed as part of the filing process, including a prominent popup reminder if filers failed to specify anyone to be served with the document.

Critics, however, say it changed what had been an automatic service system to one that requires at least some work by the filer and there was insufficient notice to the FCTC or to users before the change was made.

“The benefits of the automatic system were that it required no time or thought or analysis by anyone to serve everyone on the [service] list,” said Jacksonville attorney Paul Regensdorf, an outgoing member of the FCTC and a member of the Bar’s Rules of Judicial Administration Committee, which drafts procedural rules to support e-filing and e-service. “The default is we wanted to make sure the system would serve you automatically. In the vast majority of the cases, the documents would be served correctly by you doing nothing and that’s a positive good.”

One danger is that despite the warnings and software cautions, filers may assume the system is still “automatic” and not select anyone to be served while assuming that everyone is being served, he said.

“The portal authority has done its best to draw up warning there and draw attention to the filer that the system has changed 180 degrees overnight,” Regensdorf said. “My guess is that will stop most of the catastrophes from happening. My guess is most people filing will see one of those warnings and go back and check ‘select all’ [for service].

“At that point, we have accomplished absolutely nothing. That is the system we had before, in which is everyone gets automatically served.”

Those who attempt to go through the service list and check off people who should get the filed document run the risk of omitting someone who should be served.

Regensdorf said he describes the alternatives as the overservice — too many people getting a filed document — and underservice — parties being omitted who should get the document. The two are not equivalent, he said.

“Overservice is a minor annoyance. Underservice affects a substantial right. People aren’t getting notice who should get notice,” Regensdorf said, adding it’s better to risk the annoyance of some overservice to avoid the major problems of underservice.

Thirteenth Circuit Judge Scott Stephens, a member of the FCTC and the Rules of Judicial Administration Committee like Regensdorf, served on the workgroup that created the original e-service system. That workgroup, he said, had members from all interested parties and the product was reviewed by the authority, the FCTC, the RJA Committee, and the Supreme Court.

There was extensive discussion at that time whether service should be automatic or whether filers would have to review a service list for each document. The decision was to have an automatic system, which mirrors the procedures used by the electronic filing system for federal courts.

“We had reached a point where the e-service component of the system became very reliable,” Stephens said. “People made the argument it could be better, but no one made an argument that it wasn’t better than paper or when you had to serve documents from your own email.

“It’s all about the need for stability, especially when you do something new. You can’t be changing it all the time.”

Stephens added, “There’s a legal overlay in terms of what happens. Can I hold a lawyer responsible if the lawyer files a document and doesn’t serve it? Last week, I could. Now the lawyer could claim he or she did the same thing [in filing the document] and it didn’t get served.”

Unlike the original service system, there was no broad-based participation in designing the change. FCTC, which supposedly has all policy authority over e-filing and e-service, never approved the change, Stephens said.

“There are a lot of consequences that come up with service of document and time periods that start running. It’s very important to think through all the legal consequences before any changes are made to the software,” Stephens said.

“We had a broad consensus [on the first e-service system] and went all the way up to the Supreme Court [with reviews] and according to them [the authority], they can have programmers make changes to the system,” he added. “They can’t unilaterally make changes to the system.”

Smith said the changes were discussed, at least informally with FCTC members at the commission’s May meeting. However, he plans to present to the authority a plan for future software updates — which he estimated will occur twice a year — to be formally presented to the FCTC 30 days before they are installed.

As for whether the authority was empowered to make the changes, Smith said, “The interlocal agreement that set up the authority says the authority has the exclusive control of operating the portal.” But he added it’s important to take steps to avoid any future friction.

Smith said the change came from two different goals for portal operation. One is to make the operation as much like the federal electronic filing system as possible, and the federal system has automatic e-service that requires no action by the filer. The other is to have the electronic system resemble the paper filing system it replaced so it’s familiar as possible for users — and that paper system had lawyers keeping their own service lists and doing service by mail.

“There were discussions that our project manager had had with some [service] calls about people getting e-serviced who didn’t want to be and they wanted to know how did they get off [the service list],” Smith said. “There were recommendations to make it more like the paper world, where you have to select something instead of automatically selecting everyone on the list.”

He added, “There was no motivation from anyone on the project team or the authority to do any harm to anyone. This was an attempt to make this more efficient and effective for those who use the portal.”

The authority has updated training materials to accommodate the e-service changes. Training information can be found here: www.myflcourtaccess.com/authority/trainingvideos.html, and www.myflcourtaccess.com/authority/trainingmanuals.html.

[Revised: 07-27-2015]