News and Views Issue 5: Fall 2002
Courtroom Technology SCAN - Electronic filing
Andrew C.L. Sims, QCElectronic filing seems like an idea whose time has come. Most of us are used to e-mail and those who are, often know how to attach documents to them. So why are we still sending runners to the Courthouse? Would it not save money to switch to electronic filing right away? There are of course barriers and challenges to such a switch.
Electronic document filing without an "electronic filing cabinet" for those documents is little more than a cost transfer from law firms to government. The technological problem is not in getting documents from the lawyer's office over to the Courthouse, although that does pose some challenges. There are several aspects to the challenges of implementing electronic filing, from the practical to the policy oriented to the technological. The real issue is how to organize paper-based courthouses so they will be able to work with electronic documents once they arrive. It makes little or no sense to have a court clerk sitting at a computer terminal printing up copies of all the documents just "electronically filed".
What courts need to make electronic filing a reality is a computerized case management system to accept and keep track of all these electronic documents. The system must record not only where they come from and what they are about, but the steps they mandate or prevent. Most documents filed in court are designed to make something happen; get an application struck, get a date set, comply with an order. A case management system must, at least, track all these events. It must also make the documents available when needed, for example in court, or when a schedule is being prepared.
It is often the case management system that is the prerequisite, and thus the barrier, to electronic filing. You cannot readily buy such systems off the shelf, at least not to meet sophisticated court needs. Even if you could, much work has to be done to switch the court's processes from a paper-oriented system to one that uses electronic transactions and reports wherever possible instead of traditional documents.
Discussions about electronic filing very quickly get tied up in the related but not inseparable discussion about electronic access. As a society we are responding to the increased access to information that technology allows, with a series of laws designed to protect our privacy. If allowing electronic filing includes allowing electronic access to the court's records we need to address these privacy issues.
Open courts with open files have been our norm. However, the inconvenience factor has meant that court files present little threat to interests of privacy except in high profile cases. Electronic access to court documents could allow search engine indexing and free access to everything from anywhere. Courts unwilling to see open access have to decide on policies to restrict access. Should access be restricted to litigants alone, selected subscribers, access to the docket only or some half-way point? The technical work becomes more complex and the security issues more challenging depending on the policy choices made.
This brings in the next rung of the debate - Who should run the electronic filing portal? Electronic filing has the potential to become big business. The per-transaction fees may be low, but the potential for volume is high. The large electronic publishers are anxious to get into the business. It gives one more service to attract people to their web site or electronic database. Firms that provide litigation support software or document warehousing for law firms are also candidates. This sparks other policy debates - Should e-filing be run by a single service provider for the courts, or should any firm be allowed to be an "electronic court runner"? If there is any monopoly element, how much should be charged for access to the "electronic toll road"?
A more mundane question about electronic filing is file formats. Paper documents follow layout standards that are imposed by the Court Rules and photocopiers produce relatively uniform copies. Electronic file formats are not totally compatible with each other, and there are a variety of formats currently in use. How does one design an electronic filing system that allows uniform electronic documents to arrive at the courthouse knowing that lawyers and other users use a wide variety of software, versions and file types? The solution in the past has been to go to a lowest common denominator, using Plain Jane, ASCII or the slightly more upscale .rtf (rich text format). However, neither of these is fully satisfactory, particularly given the font differences between market leader Microsoft Word and the darling of legal secretaries, WordPerfect.
A newer solution is to convert whatever file is used at the user end into a standard file format that will look and print the same on any computer. The most popular format for this is Adobe Acrobat. Some electronic filing involves sending the file via a service provider that, for a transaction fee, will convert whatever file format is used at the point of origin into Acrobat .pdf (portable document format) for sending to the courthouse. This preserves the style, font and pagination aspects of the original. It allows the court and individual users like judges to print only what they need, keeping what they do not need in hard copy solely in electronic form.
Transmitting or "electronically filing" documents is not however, just sending an electronic copy of a paper document. A document has two aspects to it. It has content, but it also has a description. The description of the document includes its source (the law firm identity), its action number, its date, its style of cause and so on. In electronic file lingo this is all "Meta Data". In order for a case management system to accept an electronically filed document it needs this meta data. This is what tells it, automatically, where to put the document, what to do with it and what to do as a result of it.
Electronic filing systems are now developing using newer XML technology that will accept an electronic document and "wrap it up" in a meta data envelope. Basically, using your web browser, you fill in a form describing the document (that is entering the meta data) and then attach a document file. Your browser takes this and wraps it all together into one file. This transmission file includes the meta data in a form the court's database can read, and the enclosed file for filing, perhaps after automatic conversion into a common file format. The document itself is inelegantly called a "BLOb" for "binary large object". An important advantage of this system is that it can accommodate various types of files or BLObs, including audio files, video files and so on. This capacity will be important as the type of items involved in court filing grow to accommodate things like scanned documents, presentations, video evidence and so on.
This brief summary is meant to describe some of the challenges involved in electronic filing and to show why it is more than just an e-mail attachment away. However, it is not meant to discourage its development. It is working well in many jurisdictions, providing convenience and cost savings to courts and litigants alike. For some examples check out the links at these two web sites: www.ncsc.dni.us/NCSC/TIS/TIS99/ELECTR99/Efilinglinks.htm and www.wendytech.com/efilingprojects.htm#selectedwebsites. We survived the loss of red ribbons on barrister's briefs and we will survive and prosper in the new age of paperless court proceedings. E-file and prosper.
Andrew Sims is a lawyer practicing in Edmonton and principal of the Sims Group, a consulting practice providing advice to courts and tribunals. He will write "Court Technology Scan" as a regular column for our newsletter.