Eight Rules of E-Filing (Introduction)

As in any technology project, the “devil” is in implementation and acceptance of the new system by the judges and court staff.  E-filing affects every part of the court operation since it transforms the filing system and the documents used to make court decisions.

Case Management Systems (CMS) have traditionally automated the registry/docket (historical event record), participants, and scheduling /task control and has left the document filing system for separate image document management programs.  This has primarily been done because of cost and the lack of workflow and task control capabilities in traditional CMS.

But I believe that this is also a remnant of the courts traditional organizational division between the docket/registry/indexing function and the document filing system.  Separate staff and separate processes are a common organizational structure in many clerk's offices.

Even today a great majority of courts still maintain physical case files.  And workflow in manual file systems has meant physically moving the file folder from person to person and office to office.  In many courts the file folder also serves as the case event registry.  This function is addressed by a printed registry form grid on the folder cover the list of documents contained within.  The advantage for this approach is that when one works on the contents of the folder, the data capture and presentation is literally in one’s hands.

Bestselling author, Malcolm Gladwell explains in his article “The Social Life of Paper” the attractiveness of this approach in a collaborative work environment like the court:

“Because paper is a physical embodiment of information, actions performed in relation to paper are, to a large extent, made visible to one's colleagues. Reviewers sitting around a desk could tell whether a colleague was turning toward or away from a report; whether she was flicking through it or setting it aside. Contrast this with watching someone across a desk looking at a document on a laptop. What are they looking at? Where in the document are they? Are they really reading their e-mail? Knowing these things is important because they help a group coordinate its discussions and reach a shared understanding of what is being discussed.” 

But the same capability can be done with even more ease in an E-filing/Electronic Document Management system as will be discussed in later posts in this series.

E-filing, document, and case management functionality cannot be separated.  Many courts have tried what is now termed an “e-delivery” systems.  This is where the documents are electronically submitted only to transfer the work of printing, collating, and storing the paper into the physical file folder to the court staff.  One can imagine the additional workload for court staff that negates the initial efficiencies of E-filing.  These projects have been shuttered after a period of time because E-filing did not reduce but rather increased the clerk's staff workload.

Over the next several weeks we will offer eight rules of E-filing systems implementation.  However, please note that there are many additional factors in any successful implementation as defined in classic project management structures including proper governance, budget, testing, and communication that cannot be ignored.  So please keep that in mind as you read our "rules".

International Conference on Electronic Litigation 2011

The Singapore Academy of Law are organising the “International Conference on Electronic Litigation 2011” in Singapore this August. The Organizing Committee has extended a very warm invitation to attend the Conference which will be held on 11 and 12 August 2011 at the Marina Mandarin Hotel, Singapore.

The Conference will feature two keynote speakers, Lord Justice Rupert Jackson of the Court of Appeal in the UK and Judge of Appeal Justice V K Rajah of the Supreme Court of Singapore. The key objective of the Conference is to gather legal luminaries from all over the world to discuss and confer on international developments in electronic litigation. These include electronic discovery, electronic hearings, the preservation of electronic evidence and the duty on litigants and lawyers to preserve such evidence. Other topics in this rapidly evolving area of the law include a discussion on recent developments in computer forensics and common issues faced by computer forensic experts. Judges, legal practitioners, in-house counsel and academics from all over the world will be invited to attend the Conference. Speakers and panelists will be drawn from the Judiciary, the legal industry and academia to represent a full range of views.

New Hampshire Seeks E-Courts Staff

The New Hampshire Administrative Office of the Courts have posted two job announcements.

The first announcement (pdf) is for a two year appointment as the E-Courts Project Manager.

And the second job posting (pdf) is a one year appointment for an E-Courts Statutes/Rules Analyst.

For additional information, a summary of the courts 2010-2012 Information Technology Plan (pdf) can be viewed/downloaded by clicking here.

NIEM Children, Youth, and Family Services Domain Draft Released

The governance team of the National Information Exchange Model's Children, Youth, and Family Services Domain (NIEM CYFS) invites you to review and critique its new schema.  We appreciate your feedback and ask that you send your comments to dgraski@ncsc.org by July 15, 2011.

The beta version of CYFS 2.1.1 can be viewed in several formats.  For a comprehensive list of all of the elements (properties), types, and code lists (enumerations), this html view works best:  http://www.waterholesoftware.com/downloads/cyfs211/cyfs211.html.  Several other tools found at http://cyfsdomain.org enable keyword searches and graphical views (e.g., NIEM Wayfarer).

The purpose of the CYFS domain is to support timely, complete, accurate, and efficient information sharing among the child support, child welfare, juvenile justice, family court, and related partners that can help improve outcomes for children and youth whose circumstances make them particularly vulnerable.  The inaugural content for the domain – part of NIEM 2.1’s release in September 2009 – was extracted from extension schema specifying national reference models for six data exchanges between courts and child-support enforcement agencies, and between courts and child welfare agencies.  The CYFS Domain release planned for August 2011 will integrate the Juvenile Justice XML data model developed by the Office of Juvenile Justice and Delinquency Prevention’s Juvenile Information Sharing Initiative.  In addition, the August 2011 domain update will include data elements from three notification exchanges (court event, representation, and placement change).

The National Judicial-Child Support Task Force, sponsored by the Department of Health and Human Services’ Administration for Children and Families’ Office of Child Support Enforcement (OCSE), developed two information exchange models using NIEM’s predecessor, the Global Justice XML Data Model.  The Task Force included representatives from state and tribal CSE agencies and courts, staff from OCSE’s regional and central offices, and the National Center for State Courts (NCSC).  The Initial Request for Remedy IEPD describes the agency’s case-initiation message to the court; the Child Support Order IEPD describes the court’s findings and judgment concerning the financial responsibilities of a child’s non-custodial parent.

The Court/Child Welfare National Exchange Template (NET) Project developed several national reference models to describe the exchange of information between a state or county child welfare agency and a court with jurisdiction over child abuse, neglect, and dependency cases.  The NET team included representatives from HHS ACF Children’s Bureau’s Division of State Systems, two of the Children’s Bureau’s National Resource Centers (Child Welfare Data & Technology, and Legal & Judicial Issues), representatives from state and local child welfare agencies and courts, and NCSC.

OJJDP’s National Juvenile Information Sharing Initiative (NJIS) worked with one of its JIS pilot sites to identify and develop several high-priority data exchange specifications, including education messages between juvenile probation, law enforcement, and a public school district.  In a collaborative effort, OJJDP’s NJIS worked with the University of Massachusetts Medical School to develop the data exchange for  the Massachusetts Youth Screening Instrument (MAYSI-2).  This data exchange has been successfully implemented at one of the NJIS’s pilot sites.  Additional data exchanges developed include information regarding a serious, habitual offender direct intervention (SHODI), record of law enforcement’s Field Contact with a juvenile, and Human Service placement and services exchanges.

Notes on Court Document Redaction

Our friends at Princeton University's Center for Information Technology Policy (CITP) have posted a very interesting article "Studying the Frequency of Redaction Failures in PACER".  As most of you know, PACER is the US Federal Courts program for access to court case management and case documents that have been either E-filed or scanned.  CITP author Timothy B. Lee explains the differences in PDF and other formats that are used in electronic document systems and the software they developed to study the problem (which they make available).  The article ends with a discussion on technical approaches that could be used to address the redaction issue.

In addition, there are other technical resources available.  For example, if you use Adobe Acrobat Pro one might want to check out a couple of web pages and videos on subject here and here.

Today courts are often placing the burden of redaction upon the litigants.  The Wyoming courts have earlier this year released new rules on document redaction that can be viewed here.

And other redaction rules have been posted by the following courts:

• USA Federal Courts
• Nevada State Courts
• Washington State Courts

Note - the accompanying graphic was adapted from the publically available picture of a redacted page from the ACLU vs. Ashcroft lawsuit.

NY's top administrative judge calls for legislation mandating e-filing

Last week I noted the huge amount of legislative interest and activity on e-filing. At almost the same time, NY's Chief Administrative Judge Ann Pfau was delivering her report urging legislation be adopted to mandate the use of e-filing in the state's courts. The report, eFiling in the New York State Courts: Report of the Chief Administrative Judge to the Governor, the Chief Judge, and the State Legislature, was created in fulfillment of a legislative request for information on the state's existing system and its status. The report includes the following ringing endorsement of e-filing.

Over [the last] twelve years, e-filing has shown itself to be reliable, efficient, convenient, and secure. It allows court papers to be filed and served, virtually instantaneously, at any time and from anywhere, without the need to go to the courthouse. It allows online access to case files by counsel anywhere at any time. It also sharply reduces record storage, retrieval and reproduction costs, completely eliminates the burden and expense of serving papers on opposing parties, and minimizes the need to travel to the courthouse. The result is significant cost savings for litigants, attorneys, the courts, and County Clerks. Indeed, it is estimated that universal mandatory e-filing would reduce the cost of litigation by hundreds of millions of dollars a year, with much of this savings inuring to the businesses and the state and local governments that so often litigate in our courts. With the potential to eliminate the filing and service of hundreds of millions of pieces of paper each year, e-filing is also the key to a greener, more environmentally responsible justice system.

Roundup of e-filing legislation

As courts move to more expansive use of electronic filing, more than technical issues have come up. Two in particular (financing and dated statutory language) require the active participation and permission of legislatures for implementation. This year saw several new laws and some bills still currently active that would go a long way to help, or in the case of New Mexico harm, e-filing and the courts. Among the bills:

Law

South Dakota HB 1038 Requires clerk of Supreme Court collect certain fees for the electronic transmission of court records. Signed into law by Governor 2/17/11.

Virginia SB 1369 Provides that clerks may charge a fee of $25 for civil or criminal proceedings filed electronically and an additional $10 fee for subsequent filings in such proceedings. Requires fee go to clerk's local fund to cover operational expenses of the electronic filing system. Clarifies that clerks may provide official certificates and certified copies of records that contain personal identifying information electronically upon request of a party or attorney. Makes various changes to clerks' duties regarding electronic filing. Signed into law by Governor 3/26/11.

On Governor’s desk awaiting action

Florida SB 170 Requires each state attorney and public defender to electronically file court documents with the clerk of the court and receive court documents from the clerk of the court. Requires the Florida Prosecuting Attorneys Association and the Florida Public Defender Association report to the President of the Senate and the Speaker of the House of Representatives by a specified date on the progress made to use the Florida Courts E-Portal system or the clerks' offices portals to electronically file and receive court documents, etc. Approved by full House 5/4/11. To Governor for approval.

For a list of other state activity, check out Issue 5:21 of Gavel to Gavel.

Projects and Notes - June, 2011

We have received many notes on court technology projects, thanks to our friends, that we want to pass along.  So here goes.

LegalXML Electronic Court Filing (ECF) Issues Portable Media Draft

The OASIS LegalXML Electronic Court Filing TC members have produced a Committee Specification Draft (CSD) and submitted it for 30-day public review for the ECF 4.0 Portable Media Service Interaction Profile.  The profile may be used to store ECF 4.0 message transmissions to portable media in the absence of an active network between the sending and receiving MDEs.  For more click here.

iPad/iPhone Deposition Support (thanks Carlene)

The iPhone J. D. blog shares a step-by-step guide for using that device to recreate a scene in/for a deposition.

iPads as Kiosks (thanks Jim D)

Apple stores are using iPads as very attractive kiosk devices.

Montgomery County Ohio E-Filing Training and Support (thanks Anne)

A very nice Q & A page was created by the Montgomery County (Dayton) Ohio E-filing project following their webinar training.  They have also posted their PowerPoint presentations and other very useful information from their project.

"Judges Walk Tightrope With Online Presence" (thanks EZ)

The Recorder legal newspaper in California posted an article on issues facing judges using social media.

Oregon Courts Choose CMS (Press release)

DALLAS – June 2, 2011 – Tyler Technologies, Inc. (NYSE: TYL) today announced that the State of Oregon has selected Tyler’s Odyssey® Court Management System for statewide implementation supporting all state trial courts. Odyssey supports Oregon’s eCourt goal of using technology to streamline court processes, reduce costs from handling and storing paper files, provide around-the-clock access to court information, and provide better information for judicial decision-making. Please click here for the full press release.

Court Videoconferencing

News articles from Tennessee and Georgia.

Federal Courts Work on their Archives

Another excellent article in the US Federal Courts newsletter. The Third Branch from their May, 2011 edition shares news of recent work being done by the Judicial Conference Committee on Court Administration and Case Management Records Subcommittee.

The article, Making Room-Saving History, summarizes work being done by the Federal Courts with the National Archives and Records Administration (NARA) to reduce the massive accumulation of records that "cost the Judiciary over $6.2 million last year".

The article notes:

""Records had accumulated for decades and had become an unmanageable mass," said Judge Steven Merryday (M.D. Fla.), then chair of the Records Subcommittee, part of the Judicial Conference Committee on Court Administration and Case Management (CACM). "With the potential of rising storage costs, we were facing catastrophic budget consequences." Merryday's subcommittee began by looking for ways to preserve what needed to be kept and what could be disposed. They sought the advice of the head of the National Archives and court representatives. The subcommittee went over, code by code, what would be found in a file, and agreed on what should be preserved. Then they made their recommendations to the full CACM Committee and then to the Judicial Conference."

The article further notes:

This is the first time in more than 30 years that NARA has been able to dispose of any federal court case records. They've begun with paper civil case files dating back to 1970. But before they dispose of any files, courts have the ability to designate "non-trial temporary case" files between 1970 and 1995 as historic. These files will be retained and stored. All cases filed at any time that proceeded to trial, and all cases filed before 1970 are automatically designated permanent and will not be destroyed. The remaining cases will be indexed and become easier to access.

What is considered historically significant? The CACM Committee, working with NARA, federal judges, historians, and academics, proposes that certain case records be designated permanent. Cases of historic significance would involve particular issues such as state reapportionment cases, civil rights voting cases, treason, national security, family farm and historic bankruptcy cases, and death penalty habeas corpus cases. Judges and clerks of court also are asked to designate cases that:

• Involved a lawyer, litigant, or witness of historical interest or importance;
• Involved an issue of historical interest;
• Involved a matter of national interest separate from the issues in the litigation; or
• Received substantial media attention at the time.

Several state courts have done similar work including promenently the New York State Judiciary Records Management program.  For a list of their policies click here.

Wireless Device Guidelines for Federal Courts

The April, 2011 edition of the Federal Courts Third Branch newsletter contains a timely article: Wireless Device Access Guidelines Strike Balance.  The article begins:

“The American public loves the convenience of their wireless communication devices—PDAs and laptops, smart phones and earpiece devices, among others. It’s estimated there are 285 million cell phone users in the United States.

However, the same devices that provide convenience in communications may raise security concerns in federal courts and possibly disrupt proceedings. Courts have responded with a variety of access policies.

To help strike the right balance between security concerns and convenience, the Judicial Conference Committee on Court Administration and Case Management, in consultation with the Information Technology Committee and the Judicial Security Committee, has issued revised guidance for courts to consider that updates how new technologies could be used and what this may mean for courts.”