Litigation Spotlight

E-Filing: Is it Real, or is it Just Vaporware? Here's a Coast-to-Coast Reality Check

Everybody's making promises, but who's actually delivering?

By Tom O'Connor

IS ANYBODY really using e-filing? Although there have been lots of promises, and much publicity about upcoming ventures, few e-filing projects are in operation across the country. At a conference last year, Brad Hillis of the Washington state Administrative Office of the Courts bemoaned the lack of actual implementations. (See Critique of Existing electronic Court Filing Projects).

In a recent law.com online seminar, Electronic Filing in the New Millennium, James Keane of Justice-Link reported optimistically that we are actually close to a "...tipping point with electronic court filing," citing the projects underway in California, Utah, Kansas and New Mexico, among others.

While acknowledging that these projects are still not threatening to replace the traditional "hand-delivered" relationship between lawyers and judges, Keane noted that the JusticeLink (which recently merged with CourtLink) has filed and served more than 1,500,000 million digital pages by the 1/1/00. When the federal courts are added into the tally, the total jumps to more than 2 million pages already e-filed and served.

Skeptics, however, point out that less than 1 percent of all the courts in the country are currently using e-filing, and that LEXIS-NEXIS recently sold its Complex Litigation Automated Docket (the granddaddy of e-filing) to JusticeLink.

More recently, SCT which provides case management software to courts nationwide, formed an alliance with -- and sold its SCT eFile Management "middleware" to -- JusticeLink.

So what is going on here? Is e-filing really the technology of the new millennium? Is it actually in use or is it something that everybody is talking about but nobody is doing? Should the national e-filing theme song be "Anticipation?"

Cue Carly Simon: here's what we know is going on so far.

Federal Courts

The U.S. District Court in the Northern District of Ohio went "live" on January 2, 1996, with the first federal electronic filing program. With a staggering maritime asbestos caseload of more than 5,000 cases per year, the court asked the Technology Enhancement Office team from the Administrative Office of the Courts for help. The Judicial Conference's Committee on Automation and Technology subsequently approved a pilot project.

Since then, the U.S. Judicial Council has committed the federal system to a three-year plan to roll-out e-filing. Based on a new Case Management/Electronic Case Files system developed by the AOC, this next-generation system will not only provide electronic case management, but also electronic case files and electronic filing capabilities which will allow, but not require, courts to receive and maintain case files in electronic form.

As of September 1999, the AOC, under the leadership of Michael Greenwood, has put a prototype system in operation in the district courts for the Western District of Missouri; the Eastern District of New York; the District of Oregon; and in the bankruptcy courts for the Southern District of New York; the District of Arizona; the Southern District of California; the Northern District of Georgia; and the Eastern District of Virginia.

These courts manage nearly 15,000 cases and 150,000 documents using CM/ECF. More than 2,000 attorneys have been trained to use the system; 1,000 have already filed documents over the Internet and generated docket entries.

Currently the bankruptcy court in the Southern District of New York is using the system full time and it is expected that the bankruptcy courts in San Diego and Atlanta will do so shortly. Two appellate courts have been selected to participate and each is expected to have prototype software available early in the year 2000.

Present plans call for select bankruptcy and district courts to begin receiving the CM/ECF system beginning in mid-2000 and continuing until delivery is completed to all courts by late 2003.

Some courts are working with private vendors to develop e-filing projects. The U.S. Northern District Court in Alabama currently is exploring an e-filing program with JusticeLink; the Delaware Bankruptcy Court is working with Wade Systems, of Oklahoma City, a software company that is providing case management and public access systems to some federal courts.

There are several "specialized" projects in courts around the country.

The U.S. District Court for the Eastern District of Pennsylvania uses the MDL 1203 Web-based Docket and Document Delivery System for the distribution of docket information, pleadings and briefs in the Fen-phen class action litigation pending under the Multi-District Litigation rules. This was originally a project of Villanova's Center for Information Law and Policy, but now is hosted and sponsored by VeriLaw, a commercial company run by the CILP's former director.

The U.S. District Court for the Northern District of California requires that all complaints and pleadings in securities class actions be filed with the Securities Class Action Clearinghouse, maintained by the Stanford University Law School. As a result of this order, a large number of pleadings, motions, and briefs filed in cases involving many (perhaps most) high-tech companies are now available online.

Private Vendors

In addition to these projects, the U.S. District Court for the Northern District of Alabama is working with JusticeLink on an e-filing project, and the Bankruptcy Court in Delaware is using an e-filing system developed by Wade Systems an Oklahoma City-based company that provides electronic case management software for more than 50 federal courts.

State Courts

The Small Claims Division of the Pima County (Arizona) Consolidated Justice Courts has established an electronic filing system in conjunction with Law On-Line, Inc., a vendor of electronic forms.

In the fall of 1999, California passed an e-filing enabling law (Senate Bill 367) to authorize pilot projects for several years, with a legislative commitment to a statewide e-file system by 2003. In the meantime, pilot projects are in progress in several counties including Alameda County, San Bernardino County, and both San Diego and San Francisco counties.

In 1999, WestFile entered into an agreement with the Superior Court of Orange County, Calif., to provide a Web-enabled version of the WestFile service as a browser-based interface with the court's legacy case managment system, using XML technology.

Law firms using the Legal Solutions electronic forms package will receive an upgrade from West that enables attorneys to complete any of the state's Judicial Council forms, and then file the forms electonrically with the court.

WestFile plans to launch a beta test of the system in the Family Law Court in October.

West is conducting an online survey at www.westfile.com, to allow lawyers to help set the system requirements. A complete product launched is planned before year-end, with complex civil, civl and probate courts scheduled to roll-out 1Q 2002.

In 1999, Colorado awarded a statewide project to JusticeLink to wire 100 county courts in 2000 and the remaining 200 courts (local and Water Courts) by 2003. The first roll-out was originally scheduled for Q1 of 2000 but the project has yet to begin.

The granddaddy of e-filing, the Delaware Superior Court created the very first electronic docketing and filing system for civil cases in the United States in 1991. The Complex Litigation Automated Docket (CLAD) allows electronic filings with the Superior Court 7/24 from any location with a computer and a modem. More than 100,000 documents have been filed electronically, and public access to documents is available without charge on computer terminals in the Prothonotary's Office. Access from remote locations is available by subscription through JusticeLink.

Several Florida counties recently awarded contracts to companies to develop electronic case management systems or upgrades that include an e-filing component. These include Orange County (Orlando) and Palm Beach County, both to SCT and Broward County (Fort Lauderdale) to Andersen Consulting.

The Office of the State Courts Administrator is currently reviewing proposals to do an e-filing pilot project, reportedly in Duvall County (Jacksonville).

There are several e-filing projects in progress in the state including consolidated asbestos litigation in Fulton County (JusticeLink); and pilot projects in Cobb County and Chatham County (Savannah) by ImageX. The state has also undertaken an evaluation of e-filing and is discussing a statewide pilot project, perhaps involving one of the above counties.

The court in Shawnee County has established an electronic filing project intended for regularized, repetitive filings, such as debt collection cases. More than 70 percent of the court's "Limited Actions" cases are filed using this system. The court offers a detailed description of the relevant procedures.

Prince George's County was the home of the "original flavor" JusticeLink, an Andersen Consulting project that did not come to fruition but led to the establishment of JusticeLink as an independent company. There is no e-filing project currently in place in Maryland but JusticeLink is reported to be having discussions with the state about implementing a pilot project.

The Washtenaw County court in Ann Arbor has implemented an email filing system. The docket information (case name and number, name of judge word processing format) is placed in the subject line of the e-mail. This allows the court to have the electronic file available for internal purposes even if they decide to immediately print the document and place the paper version in the court file as the official record.

New Jersey has several e-filing programs ongoing in different counties. Asbestos litigation in Middlesex County is one of the legacy CLAD systems now being maintained by JusticeLink.

The state IS department has been running a pilot project of i's own e-filing program in Monmouth County for more than a year, and is developing a Web-based version of that program. The state is currently evaluating e-filing systems, including these two, for statewide implementation.

Attorneys may also file appeals electronically with the appellate division clerk's office, and serve electronically the trial court and trial judge with notices of appeal in cases where the filing fee is waived or the attorney has a collateral account with the finance section of the Superior Court and instructs that the account be charged for the filing fee. The appeal may not be accompanied by a motion (e.g., motion to proceed as an indigent, motion to file out of time). Attorneys may transmit their appeal documents through the judiciary's online form or through their own e-mail account.

The clerk of the U.S. Distric Court in New Mexico has been out on the front of e-file wave with a working e-file system that is internet based and is used in both state and federal courts in New Mexico. Funded in part by a "Federal Technology Innovation Grant," the New Mexico system makes extensive use of state-of-the-art XML technology and is compatible with existing case management system in the U.S. Courts.

The commercial division of the Supreme Court in Monroe County (one of the first courts in the state to offer "Filing by Fax") is about to initiate a test e-filing system, modeled after the federal CM/ECF project currently in use in the bankruptcy court for the Southern District of New York.

Other locations in the state in which it will also be possible to file by fax, electronic means or a combination of both include the Court of Claims; the commercial division of the Supreme Court in New York County; and the Supreme Court in Westchester and Suffolk Counties.

Beaumont was the home of the Law Plus e-filing organization, which became the operating system for the current JusticeLink e-filing product. Initially installed in Jefferson County in 1996, this system is also used in El Paso and Montgomery counties.

In March 1999, Utah passed its "Digital State" legislation mandating that Utah government agencies provide most of their services, including e-filing, to the public via the Internet by the year 2002. This legislation was actually signed in the Online Signing Room from iLumin Corp., a virtual, Internet-based electronic meeting room where documents can be securely posted, edited and signed electronically.

The iLumin Online Signing Room technology is being used for a variety of government transactions in Utah, including court filings. Initial filings occurred in the Third Distrcit Court and are being rolled out to other courts statewide.

Fairfax County has had an "Experimental Electronic Filing Project," run by the law firm of Nelson & Wolfe and the Fairfax County Bar Association The state has now authorized a pilot project for its own evaluation.

The King County Superior Court Clerk's Office has initiated an "Electronic Court Records" project run by Roger Winters of the King County Department of Judicial Administration. With more than 6,000 new documents filed daily, the King County's Clerk must manage approximately 7,000,000 pages of information a year. The ECR Project will begin by imaging newly filed documents and allow e-filing at some time in the future.

Tom O'Connor is senior acquisitions editor for the legal education division of Pro2Net. He previously worked as a court consultant for CourtLink.