Volume 18, Number 6
September 2001

TRIAL PRACTICE

Electronic Filing
Is Its Time Finally Here?

By Tobe Liebert

Electronic filing is basically any system that permits parties to file electronic versions of documents with the court, in lieu of the traditional paper copies. The basic requirements include:

  • A court with a computer system enabled to accept, manage, and store filings in computer form.
  • A method of authenticating filings; that is, a way of ensuring that the persons filing documents are in fact who they claim to be.
  • A lawyer with an Internet-connected computer.
  • Methods of encrypting files to prevent unauthorized access to files during transmission.

Benefits of electronic filing. For the courts, electronic filing promises to greatly reduce storage needs and staff requirements. A successful electronic filing system would make it easier for lawyers to work at locations distant from the courthouse. A document filed electronically would not need hand delivery or postage. Also, having the court's files "open" 24 hours a day, accessible over the Internet from any location in the world, could alleviate the need to carry piles of documents home or while traveling. Additionally, the instant a document is electronically filed, it is available to view. No more waiting to see what your opponent's brief says.

For the pro se litigant, electronic filing could give the public the same benefits realized by lawyers: the ability to work remotely away from the courthouse, time and money saved on delivering documents, and increased access to online documents.

For the general public, electronic filing could make all court filings easily accessible. A system of electronic filing could make what was once a cumbersome paper-based system much easier for the public to search. It would be up to individual courts, however, to determine the categories of persons entitled to search records online.

For all groups mentioned above, another substantial benefit of online filing is the ability to use keyword searching. As with any computer-based document, the text could be searched by keyword. It would then be simple to pinpoint information in a lengthy text.

Obstacles to implementation. Electronic filing's biggest obstacle is probably equipping the courts with the software and hardware necessary to accept, manage, and store electronic documents. This will require a large expenditure in computer costs and personnel. Most lawyers have access to e-mail and the Web, which is probably sufficient on their end. The real labor of creating and maintaining an electronic filing system lies with courts, and funding will be a major issue.

While courts would ultimately save a great amount in terms of costs of storage space and labor, the upfront costs for launching an electronic filing system will be high. Electronic filing, however, does not have to be free. There could be charges associated with viewing or printing documents, which could generate revenue to help cover the cost of the system.

Standards. The problem of standards has plagued efforts to adopt electronic filing systems. Most believe that "open" standards should be used in such systems (as opposed to closed, "proprietary" systems owned by private companies). The problem with adopting open standards, however, is choosing which standard to use. It is obvious that the more uniform electronic filing systems become, the greater their chance of success. The advent of XML (extensible markup language) holds out some hope for a common and open system on which to base these systems.

Privacy and security. Lawyers may be concerned that their transmissions could be intercepted, tampered with, or otherwise compromised before they reach the court. Encryption systems should, however, alleviate concerns about the integrity and security of sending documents in electronic format. Encrypted messages are unintelligible except to the authorized recipient. In addition, the president's signature on the Electronic Signatures in Global and National Commerce Act marked another step toward legitimizing business transactions over the Internet. This act recognizes the validity of digital signatures, thereby removing any doubts about the legitimacy of documents filed electronically.

Storage. While paper records will remain readable as long as the paper does not disintegrate or otherwise become damaged, there is an open question of whether data stored in electronic format will be accessible 20 years from now. Because of rapid changes in the underlying hardware and software, it is hard to predict if today's electronic files will be readable by future generations of computer equipment. Any long-term plan for implementing an electronic filing system will need to address this issue.

Current and past pilot programs. Courts in both the federal and state systems have functioning electronic filing systems. The efforts generally have occurred in specialized courts (e.g., bankruptcy) or specific types of claims (fen/phen litigation). The majority of these efforts claim to be successful. It should be noted, however, that current electronic filing programs generally keep a parallel system of traditional paper filing operating alongside the new electronic system.

A successful initiative is taking place at the U.S. District Court for the Northern District of California. Since 1997, the court has required that all complaints and pleadings in securities class action suits be filed in electronic format with the Securities Class Action Clearinghouse, a website maintained by the Stanford University Law School.

In Michigan, the Washtenaw County Trial Court permits lawyers to file briefs as attachments to e-mail messages. The briefs can be in WordPerfect, Microsoft Word, or ASCII text format. In the U.S. District Court for New Mexico, a sophisticated electronic filing system permits the filing of all documents online. Other courts with successful projects include the U.S. Bankruptcy Court for the Southern District of New York, U.S. District Court for the Northern District of Ohio, and Delaware's Complex Litigation Access Docket (CLAD).

There have been failures, however. Both the Prince George's County, Maryland, and Los Angeles County, California, trial courts experimented with subscription-based electronic filing systems, but they have been discontinued. The Maryland effort failed because the fees did not generate sufficient revenue to make the system viable. The Los Angeles County effort closed because the private company supplying the system decided to abandon its efforts in this area. Colorado is undertaking perhaps the most ambitious project to date. It launched a statewide electronic filing system in August with the aim of eventually allowing lawyers to file pleadings electronically in any level of court. Once subscribed, a lawyer can file any pleading at the rate of 10 cents per page.

The promise of XML. Many observers are watching the development of the XML data exchange language. It is hoped that the adoption of XML will provide the open, standardized system necessary for electronic filing to truly take root.

XML is a method of encoding documents so that the information within the document is described with a standardized "tag" or field. This makes it extremely easy for computers to read the document and share the information contained within it. While HTML (the programming language behind websites) tells your browser how to display information on a page, XML is concerned with describing the contents of a particular document.

An electronic filing system using documents "marked up" in XML will allow for very accurate searching and indexing of those documents. In addition, it would provide a great deal of flexibility in the retrieval of information from those documents. For example, interrogatory answers dealing with disclosure of financial data from parties could be assigned an XML tag that instructs the system not to disclose this information to the public.

Tobe Liebert is director of public services at the University of Texas at Austin School of Law's Tarlton Law Library.

This article is an abridged and edited version of one that originally appeared on page 24 of Experience, Spring 2001 (11:3).

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