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Technology: The Benefits of E-Filing

by Daniel J. Siegel

Spring 2004, Vol. 67, No. 1

Some lawyers will kick and scream and others will protest, but in the end they will have no choice. The days of filing legal documents only in hard copy are slowly coming to an end. While the pace differs among various courts, more and more courts are either requiring or exploring ways to implement electronic filing (“e-filing”).

E-filing is already the rule for criminal and civil cases pending in the Eastern District Court in Philadelphia and in U.S. Bankruptcy Court. Although Common Pleas Court and Municipal Court have yet to adopt electronic filing, they are also testing the waters, albeit more slowly. Thus, it is safe to assume that paper filings will eventually become the exception.

E-filing has many advantages. First, it is generally easy to do, requiring minimal computer skills. Second, e-filing saves storage space—for the courts and for counsel. When documents are filed electronically, courts (and opposing counsel) will not necessarily have to print every page of every document; instead, they can review the documents on their computers and save them. When they need a printed copy, all they have to do is click on the “print” button, and out will come hard copies of entire documents or just the relevant pages. By not having every document printed, everyone uses less physical file space and consequently reduces the attendant costs of storing the files when the cases are completed. Third, when a pleading is filed electronically, the court can make the document instantly available—to the general public, only to counsel, or to other “approved” individuals—depending upon the court’s policies. Fourth, it is harder to “misplace” e-filings. If something happens to a document (like coffee spilling on it), all you do is print a replacement. Plus, because courts and law offices should (really, they must) have systematic back-up systems, even if a computer crashes there is a back-up copy that is relatively easy to restore—particularly compared with the difficulty and time wasted trying to locate a misfiled or accidentally discarded document.

The Eastern District Court has utilized electronic filing for a few years. In 2002, the court implemented its “Electronic Case Filing” (ECF) program under Local Rule of Civil Procedure 5.1.2, and later extended ECF to criminal proceedings. The court publishes extensive information about the program at https://ecf.paed.uscourts.gov. Although the Web site states that ECF is not mandatory, the only documents specifically exempt from the ECF program are “initial papers in civil cases, such as the complaint and the issuance and service of the summons, and, in criminal cases, the indictment or information, warrant for arrest or summons,” which must still be filed in hard copy. In addition, the “Procedural Order” creating ECF implies that the program is, for all practical purposes, required: “All civil and criminal cases filed in this court on or after May 1, 2002, will be entered into the court’s Electronic Case Filing (“ECF”) System.”

Under the ECF program, counsel would create the filing on his or her office’s word processing software, and then convert it to a pdf (portable document format) using either software on the computer or a scanner. Pdf is a universal format, sometimes called “Adobe,” which is the name of the company that pioneered the pdf, and whose software, Adobe Acrobat, dominates the market. Pdf is the preferred format in most courts because the software to create pdfs is easy to use and many programs, such as WordPerfect, have a built-in pdf maker. When a document is converted to pdf, the layout of the document, as well as all fonts, images and graphics, are preserved, regardless of what application and platform were used to create the original. Moreover, when a document is converted to a pdf, a reader cannot view or track prior versions and revisions, as can be done if the document is in Word or other common formats.

After creating the pdf version of the filing, counsel then logs in to the court’s ECF Web site, where each attorney has a unique user name (login) and password. Counsel then navigates to the particular case, selects the party on whose behalf the document is being filed and attaches the file, which is accomplished with a few clicks of the mouse.

Philadelphia’s courts are also experimenting with e-filing. For example, Municipal Court and Orphans Court are in various stages of testing electronic filing, according to Dave Lawrence, chief deputy court administrator. Lawrence explains that all of the City of Philadelphia’s Municipal Court filings are now accomplished electronically, accounting for roughly 60,000 cases per year. The court’s goal, according to Lawrence, is to expand the program to include filings from individual practitioners. Orphans Court is also developing an electronic filing program, with the hope of implementing it as early as October 2004.

Civil and criminal attorneys in Philadelphia will wait a little longer before they will be required to file electronically. The prothonotary is not currently pursuing any e-filing programs; instead, Lawrence says, “We are waiting to learn by our mistakes.” Even so, Lawrence notes that many judges request that attorneys include a disk with some pleadings. But Philadelphia Common Pleas Court has embraced technology. Practitioners universally applaud the court’s decision to post all civil dockets on the Internet at (http://fjdwebserver.phila.gov). The Philadelphia Common Pleas Court’s dockets are easy to use, and it’s simple to find a case if you know the name (or even just the last name) of only one party; in fact, other courts would be well served to copy Philadelphia’s model.

E-filing has been particularly successful in many jurisdictions for mass torts and other cases that involve many attorneys. Traditionally, in these types of cases, counsel would be required to mail hard copies of every document to every attorney; the costs—especially for photocopies and postage—were enormous. Plus, whenever a law firm or attorney moved, it meant updating counsel lists, and mistakes were inevitable. Not anymore. As long as counsel’s e-mail address is accurate, he or she receives notification of every filing as soon as it occurs, which is far more efficient than waiting for the mail.

Whether through the courts’ Web sites, or using a private service, e-filing has often streamlined practice in these large, multi-counsel cases. One company, Verilaw Technologies (http://www.verilaw.com), based in Wayne, Pennsylvania, specializes in electronic service and case management. State and federal courts throughout the country use Verilaw’s services; according to the company, seventy-five of the top 100 law firms use its services. The Montgomery County Common Pleas Court has also retained Verilaw to create and implement its electronic filing system. Other companies provide similar services, while some courts create their systems either in-house or by retaining private consultants.

Despite the relative ease of filing documents electronically, there is no standard procedure, and no uniform rules, for implementing the programs. Consequently, courts have and will continue to implement different procedures that require attorneys to use different software or other programs. Lawyers must therefore review each court’s local rules or risk having an electronic filing either bounced or considered untimely.

In addition, the relative ease of access to electronic documents raises privacy concerns. Some courts make all documents available over the Internet, while others restrict access to attorneys involved in a particular case. Lawyers must again review each particular court’s rules in order to protect confidential information and to safeguard their clients’ privacy. For example, how should a lawyer handle a filing that includes a client’s Social Security number? Or, how should a lawyer deal with a pleading that includes a client’s medical records? These are all legitimate questions that e-filing raises, and there are no standard answers.

E-filing is clearly here to stay. While it will take time for every court to implement it, there is little doubt that, slowly but surely, every court will create an e-filing system. Fortunately, the vast majority of these systems do not require lawyers or their staff to be particularly “tech savvy.”

The days of just saying “no” to technology are clearly disappearing, and within the next few years, it is all but certain that most filings will be done electronically. Lawyers who want to remain in the pre-computer age will soon have no choice but to change, or discover that the courts will not accept their traditional hard copy pleadings.