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Silverstein offers perspective on technology and rules

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Murray SilversteinWith the advent of electronic court filing and Florida courts switching from a paper-based to an electronic records system, changes in law practices and with lawyers’ interactions with the courts have been coming hard and fast. And technology continues to evolve for lawyers and the courts as the legal system seeks to mesh principles and practices with the digital world.

Tampa attorney Murray Silverstein, a partner at Greenspoon Marder, is a former member of the Bar Board of Governors, where he was a point member on court technology matters. He was a long-time member and chair of the Rules of Judicial Administration Committee, which is responsible for general application and technology-related procedural rules.

He currently serves on the Ad Hoc Joint Subcommittee on Rule [of Judicial Administration] 2.420 — which was tasked by the Supreme Court with possible recommendations to expedite access to court records — and is one of the four attorney members of the Florida Courts Technology Commission, which recommends technology policies to the court.

The Bar News recently sat down with Silverstein to get his views on current technology-related topics and what he sees as upcoming issues. Not surprisingly, he perceives many of the issues as interrelated. For example, the debate over Rule 2.420, where critics have said time spent by clerks redacting documents results in impermissible delays in public access to electronic court documents, also has a technological component. Delays in docketing means things that would help lawyers, such as instantly or nearly instantly providing hyperlinks to filed documents and docketing numbers with served documents, is much harder or, even, impossible.

The discussion with Silverstein began with Rule 2.420, which sets out 23 categories of information that are automatically deemed confidential in court filings. Lawyers filing documents with confidential information are required to include a notice to the clerk of court identifying the information so the clerk can remove it before the document goes into public court files. For information not in the 23 categories, such as the 1,133 exemptions to the Sunshine Law in Fla. Ch. 119 or other information such as trade secrets, lawyers must file for a hearing before a judge, and clerks will keep the information confidential until the judge rules. Under current practice, clerks review all filings for information falling under the 23 categories, whether there is a notice or not, citing language in the 2010 Supreme Court opinion [In re Amend. To Rules Jud. Admin., 31 So. 3d 756] that updated Rule 2.420.

The ad hoc subcommittee voted 6-5 to recommend not to change the rule. The minority, which includes Silverstein, has submitted three possible amendments to the rule, ranging from ending clerk review and redaction for all attorney filings (but not for pro se filings) to ending automatic clerk redactions in traditional civil cases. The “no action” report, in compliance with Rule 2.140(f), is pending with the Supreme Court.

Q: What is your take on the controversy of Rule 2.420 and whether clerks should automatically be redacting documents without a notice from filing attorneys?

Silverstein: First, only in rare circumstances should confidential information be filed in the court file (a public record). Second, clerks should not be in the business of protecting filers’ confidential information; that responsibility lies squarely with the filer. The system for protecting confidential information described in the amendments to Rule 2.420 approved in the Supreme Court’s 2010 opinion made significant pronouncements. First, the amendments intended that confidential information be “readily identifiable” and, second, that confidential information defined in the rule must be narrowed to a “finite set” (as contrasted with the 1,133 statutory exemptions under Ch. 119 identified above), which was 19 at the time and expanded to 23 categories today. The required Notice of Confidential Information was created for filers to notify the clerk what and where the confidential information is located in a filed document. This satisfies the Court’s concern that confidential information be “readily identifiable” for redaction by the clerk. The sentence in the opinion, “[t]he clerk’s responsibility under the new subdivision is independent of the responsibility of the filer” [31 So. 3d at 765] has been taken out of context. I believe this “independent responsibility” of the clerk was intended to mean that clerks must double check information identified by the filer in the notice to ensure it is within the “finite set” of records deemed “facially confidential,” rather than scour the entire filing to independently search for confidential information even without a notice having been filed. Attempts to exempt more records (or expand confidentiality) was carefully restricted by the Court. In the opinion, at page 765, the Court discusses subdivisions (d)(1) (the readily identifiable “finite set” of confidential information) together with (d)(2) (the use of the new notice to identify and locate the confidential information). This approach of reading the two subdivisions together harmoniously and consistently makes sense and is supported by the “supremacy-of-text principle” discussed by Scalia and Garner in Reading Law: The Interpretation of Legal Texts (Thompson/West 2019), at pp. 56-58.

Q: How does the redaction issue affect other technology matters that help lawyers manage documents filed with the courts?

Silverstein: The so-called minority view supporting the rule amendments to Rule 2.420 actually has two camps that are complementary. One is the media point of view, which is that immediate access — or as close to it as you can get — is preferred for current, real-time reporting. The other is the technology point of view, which is that delays from independent clerk redaction impede the progress of available advancements, such as hyper linking to the document in the court file through a link served by the court system’s statewide e-filing portal. Another example is the tremendous case management benefit of having document numbers embedded into the filed document, mirroring the docket numbers within the progress docket index used by the clerks and the courts. Since the clerk may take up to three days to docket, you cannot have immediate, real time access via service or a document number consistent with what’s in the court file, which benefits have been provided by the federal PACER/CMECF system since 1999.

Q: One concern related to the delay in docketing involves the potential difference between a document served by the portal and the same document, after it is processed and stamped in the clerk’s case management system (CMS) and deposited in the court file. What are your concerns?

Silverstein: First, the document served by the portal may not been deemed part of the official court file because it has not been docketed. Rule 2.525(c)(2) defines “[t]he official court file” as “a set of electronic documents stored in a computer system maintained by the clerk,…It consists of: (A) documents filed by electronic transmission under this rule ….” Second, the document served by the portal has not gone through the clerk’s review and redaction protocol and, therefore, may be different from what eventually gets docketed and filed in the clerk’s CMS (i.e., the court file). An obvious way to eliminate these concerns is for documents to be immediately docketed and simultaneously served by the portal to avoid a dual track of court filings (most lawyers “of record” maintain their files from the documents they receive from the portal). The clerks suggest that the best way to avoid these concerns is to go to the clerk’s website and download court filings from the CMS. This raises the question of what to do with the documents you received via service from the portal. Is the lawyer to maintain two sets of his or her pleading file, one from the portal and another built from separately downloading filings from the clerk’s CMS?

Q: You’ve talked about preferring the federal PACER electronic filing system, which instead of providing a copy of a filed document gives parties a link to the document in the court file. Can you talk about that?

Silverstein: Service of a PDF by email is not actually offered by the federal PACER system. Many practitioners may prefer that form of service, but in Florida, (as described above) the PDF you receive from the portal is not the same as what is in the court file. Florida’s e-service rule, when drafted over seven years ago, contemplated use of a service link, although it’s not available today: Rule 2.516(b)(1) provides that, “[a]ll documents required or permitted to be served on another party must be served by e-mail,…A filer of an electronic document has complied with this subdivision [if the portal serves the document] by e-mail or provided a link by e-mail to the document on a website maintained by a clerk (“e-Service”).” Again, while clerks separately review/redact filings and thereby delay docketing for, in some cases, several days, simultaneous service of a link to the court-filed document is not possible. Until the practice changes, we’ll continue to have service via emails from the portal with the undocketed filing piggybacked to the email.

The Ad Hoc Subcommittee’s minority proposed amendments were sent to the court by the FCTC on December 30, 2019, and are available here. (The subcommittee minority’s three Rule 2.420 alternatives are listed on pp. 54-56 of the “No Action Report” document shown on that webpage.) Under one of the proposed amendments to Rule 2.420, there’d be no clerk review in traditional civil cases (i.e., excluding family, probate, guardianship, sex abuse, medical malpractice, Jimmy Ryce Act, and juvenile cases) filed by an attorney. Those documents could be filed and docketed simultaneously and the portal would be able to serve those via either a PDF attachment or a link to the filed document. Based on current information available from the technologists on the portal, the portal could do either one, or both, of these things so long as authorized by the rules of court.

(Editor’s Note: Regular cycle Rules of Judicial Administration being filed with the Supreme Court proposed that the portal become the sole method of serving electronic documents; lawyers would no longer be permitted to provide service by email. Also, officials who run the portal note there are several differences between the Florida system and PACER, including that the state portal deals with more courts and a much higher filing volume. The portal is designed to accept electronic filings and distribute them to 67 independently elected clerks of court who use 10 different case maintenance systems to handle the filings. It is also a one-way flow; the portal is not designed to get information from clerks — such as document numbers — and return them to filers. Making that change, according to officials, would be time-consuming and expensive. Portal personnel are working on the document number issue with the Florida Courts Technology Commission. Presently, the clerks prefer adding the document number after docketing and the courts and filers can access the document from the clerks’ CMS systems (or, in the case of the judiciary, through their judicial viewers) only after docketing, but not before, meaning anything served by the portal would not, at this time, have a document number affixed.)

Q: Most lawyers have switched to filing court documents in the PDF format (even if most are scanned instead of in the preferred PDF/a text format) but many file in the Word format, and also exchange documents with other parties in Word. What are the dangers of using Word?

Silverstein: According to the Portal Authority’s most recent report from October 2019, of 2.4 million filings for that month, scanned images account for 1.4 million (54%) of those filings. Therefore, most lawyers are still — improperly — printing and then scanning their documents before filing through the portal. There’s no need to affix a wet ink signature. Rule 2.515(c), which has been in effect for over six years, provides that an electronic signature indicator, /s/, is an authorized signature on all court filings. And, even though the portal continues to accept Word documents and converts them to PDF, security of your metadata can be compromised by filing in Word. One of the easiest protections to ensure security is converting everything you file to a PDF, preferably PDF/a, because it is searchable and more secure. Microsoft Word has an easy menu item to make the conversion. If you can’t do it, you can get your 16-year-old kid to do it.

Q: What about exchanging documents with other firms?

Silverstein: Often when dealing with another firm, there is a preferred system to transferring files: Hightail or Dropbox or OneDrive. That issue goes to stuff that is exported out from one system and how secure is the system through which it is transmitted. Anyone, even sole practitioners can go to the Bar’s LegalFuel website (www.legalfuel.com) to get access to the latest in technology for document creation and transmissions, to make sure documents are encrypted and protected. The Bar has done a great job of making sure the latest information is available on LegalFuel.

As a parting comment, it should be recognized that the clerks of court are a phenomenal group of dedicated public servants striving every day to improve the functioning of the statewide court system and regularly embrace technology in order to do so. The lawyers and courts appreciate this role of the clerks in ensuring that court files are properly maintained, which is just one of the many areas of responsibility of these constitutional officers.

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