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Panel discusses deadline for court filings to be in PDF/A format

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Less than half of all e-filings now meet the standard

Murray Silverstein

Murray Silverstein

Lawyers next year could find their electronic court submissions delayed or rejected if they aren’t filed in the proper format under a proposal being considered by a Florida Courts Technology Commission subcommittee.

Portal Subcommittee member Murray Silverstein made a motion at the panel’s November 4 meeting to set a June 30, 2022, deadline for attorney files to be in the searchable PDF/A format set out in court technical standards. His original motion said filings that didn’t meet the standards would go into court clerks’ “correction queues” for problematic electronic filings, with the lawyer receiving a notification of the error.

After another five days, the clerk could shift the filing to an inactive folder. Silverstein later said the rejection might come from the statewide e-filing Portal or a source other than clerks.

Silverstein ultimately withdrew the motion so technical details could be addressed, but said he intended to renew it at the FCTC’s February meeting. Subcommittee Chair Judge Martin Bidwill said the panel would devote an interim meeting to the subject and told the full FCTC he expects to present a motion at its February 11 meeting.

In saying they liked the idea of a deadline, subcommittee members also appeared favorable to an idea that the statewide e-filing Portal could offer, for a small fee, to convert noncompliant filings into the proper format and for a massive education campaign to instruct lawyers and their staffs on how to submit an appropriately formatted document.

“I’m looking for something…that is geared toward creating the best opportunity for compliance [with court technical standards] and the best overall solution so we have the best overall court file,” Silverstein said.

“We would still have lawyers filing in paper if they could. The reason this [electronic filing] worked is because we said you can’t file in paper anymore,” said subcommittee and Board of Governors member Laird Lile. “So if you want this to work, it’s going to have to feel draconian, at least at first.”

The Supreme Court several years ago, on the FCTC’s recommendation, adopted PDF/A as the eventual required format for court documents because it allows documents to be searched, have hyperlinks, bookmarks and other such intelligent information, and is a stable long-term format for electronic record storage that requires relatively little computer space. Court clerks are required to be able to accept and store documents in the PDF/A format by June 2022.

Silverstein said the properties of text-based PDF/A make them easier to use for judges, lawyers, and other parties. Some scanned documents are searchable but won’t have bookmarks and hyperlinks.

Scanning paper documents also creates the possibility that some text or other information will be lost or corrupted in what become official court records.

Some at the meeting said setting a deadline could cause problems.

Volusia County Clerk of Court Laura Roth, who is also immediate past president of the Florida Court Clerks & Comptrollers and was observing the meeting, warned while the FCTC and the courts might set a deadline, it would be clerks who would be overwhelmed with calls when lawyers found their filed documents diverted or rejected.

Jeff Taylor, director of Technology Services for the Manatee County Clerk of Court, said problems with a deadline would be complex.

He displayed one filed document that claimed to be in the compliant PDF/A format, but actually wasn’t. Because the document used fonts not in the clerk’s program, it might have been altered if converted to PDF/A. There was also an improperly labeled and formatted exhibit that would have been deleted during a conversion.

“This document has two problems. One it’s not PDF/A and two, it’s going to change the content if we do find a way to make it PDF/A,” he said.

Taylor said the FCTC would have to be specific about what it wants in filings. He noted if the goal is searchable documents, there are non-PDF/A documents that are searchable, and there are scanned PDF/A formatted documents that are not searchable.

John Tomasino, clerk of the Supreme Court, repeated his suggestion from past meetings that any rule or technical change should offer the option to allow the Portal to convert a non-PDF/A document to a compliant PDF/A document at a slight charge to the filing lawyer.

Several subcommittee members said that should be an option if any deadline is set.

And subcommittee member Leslie Powell-Boudreaux said she approached the Bar’s Voluntary Bar Liaison Committee and it was eager to undertake an education program through voluntary bars to educate lawyers and their staff about the PDF/A standards and requirements.

Subcommittee members agreed that a strong education effort should be part of any deadline.

“We don’t have any other real solution right now that is going to compel compliance,” said Judge Bidwill. “But once that happens, if you’re really going to get into enforcing that, it’s going to create a lot of other issues, tensions in other areas that hopefully might be ameliorated in a significant degree if the education effort that Leslie was referring to makes its way down the path.”

Tom Hall, a member of the joint FCTC/Rules of General Practice and Judicial Administration subcommittee, also said the PDF/A documents are ADA compliant, while most other scanned documents are not. Court rules and standards call for court records to be ADA compliant.

Silverstein agreed it was best to wait to craft a better motion.

At the full FCTC meeting, Carolyn Weber, the Portal’s program manager, reported that in September 52% of electronically filed documents were scanned PDFs, 5% were Word, and 43% were text-based PDFs.

In civil cases, 28.3% were PDF/A formatted documents, 67.5% were PDFs, and 4.1% were in other formats. Overall 44.4% were searchable and 51.5% were not searchable.

On the criminal side, 31.9% were in PDF/A, 61.4% were other PDF, and 6.6% were other formats. Over half, 56.7%, were not searchable and 36.6% were searchable.

Weber told the subcommittee it could not be determined from the filings why lawyers were not using the searchable PDF/A format. But she said a high percentage of the non-complying scanned documents had written signatures, supporting anecdotal stories that attorneys prefer physically signing their documents to using the “/s” typewritten signature authorized in procedural rules.

She also said in the 10 counties where clerks are now converting and storing all court documents in PDF/A, the compliance rate of filing in searchable PDF/A is much higher.

Hall reported that the RGPJA Committee is working on a rule change that will allow electronic written signatures, similar to those collected by credit card machines in stores, to be affixed to court documents. That, he said, could boost use of PDF/A.

When the rules committee finishes its proposal, it will send that to the joint FCTC/RGPJA subcommittee, which will determine the technical standards needed for such signature programs to protect the integrity of court filings, Hall said.

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