BILL ANALYSIS Ó AB 2073 Page 1 Date of Hearing: April 24, 2012 ASSEMBLY COMMITTEE ON JUDICIARY Mike Feuer, Chair AB 2073 (Silva) - As Introduced: February 23, 2012 SUBJECT : COURTS: ELECTRONIC FILING KEY ISSUES : 1)SHOULD EACH PRESIDING JUDGE IN EVERY ONE OF THE 58 TRIAL COURTS BE ABLE TO MANDATE, IF AND WHEN THEY SO CHOOSE UNDER THEIR OWN POTENTIALLY UNIQUE RULES, THAT PARTIES TO CIVIL ACTIONS FILE THEIR PLEADINGS ELECTRONICALLY? WOULD NOT SUCH AN APPROACH INADVERTENTLY LEAD TO POTENTIALLY DIFFERENT AND CONFLICTING APPROACHES TO ELECTRONIC FILING REQUIREMENTS IN ADJACENT COUNTIES, CAUSING INEFFICIENCY AND CONFUSION FOR COUNSEL AND PARTIES STATEWIDE? 2)MIGHT A BETTER APPROACH BE TO ALLOW ONE TRIAL COURT, IN THIS CASE THE SUPERIOR COURT OF ORANGE COUNTY - THROUGH A LOCAL RULE OF COURT - TO PILOT A MANDATORY E-FILING APPROACH ON AN EXPEDITED BASIS WHILE THE JUDICIAL COUNCIL URGENTLY DEVELOPS A STATEWIDE RULE TO ENSURE BOTH THE WORKABILITY AND UNIFORMITY OF REQUIRING THAT PARTIES USE E-FILING IN CALIFORNIA? 3)WHAT SHOULD SUCH A PILOT APPROACH LOOK LIKE, WHAT SHOULD BE ITS TIMEFRAME, AND SHOULD THERE BE A CORRESPONDING EXPEDITED STUDY PROCESS TO ASSIST THE JUDICIAL COUNCIL IN ITS DEVELOPMENT OF A STATEWIDE APPROACH TO E-FILING? FISCAL EFFECT : As currently in print this bill is keyed fiscal. SYNOPSIS Existing law allows trial courts to adopt local rules permitting parties to electronically file legal documents with the court, consistent with specified statutes and rules. This bill, sponsored by the Orange County Superior Court, allows a presiding judge of a court to mandate , by administrative order, that parties to civil actions file and serve documents electronically. While electronic filing and service of documents is a significant efficiency for courts that have the capacity to process such filings, there are a number of AB 2073 Page 2 significant issues that must be resolved before moving from a voluntary approach to a mandatory approach, including access, application to pro per litigants, whether there could be additional fees charged in a mandatory setting, uniformity of procedures between trial courts, and whether certain documents might not be appropriate for electronic filing. Given these unresolved issues, this Committee may decide, instead of permitting all trial courts to develop their own unique and potentially conflicting procedures, to permit one trial court to pilot mandatory e-filing, and direct the Judicial Council to study the pilot and then timely develop a uniform statewide rule that all trial courts could choose to adopt. This alternative allows for needed technological advances and development of more efficient court operations, but still ensures that such progress is done uniformly and considering the needs of all litigants. The bill is supported by four large trial courts from Southern California. SUMMARY : Allows trial courts, by order of the presiding judge, to mandate that parties electronically file documents in specified civil cases. Specifically, this bill : 1)Provides, at the discretion of a presiding judge and by court order, that parties to eligible civil actions be required to electronically file and serve documents, provided, among other things: a) The court has the ability to maintain the official court record electronically; b) The court has access to more than one electronic service provider capable of electronically filing documents with the court; and c) The court has a procedure for filing of nonelectronic documents to prevent undue hardship or significant prejudice to any party. 2)Provides that the requirement for mandatory electronic filing and service can apply to all civil cases, or any subset thereof, as specified. 3)Specifies the time of day when documents must be electronically filed. 4)Allows the presiding judge to revoke mandatory electronic AB 2073 Page 3 filing at any time. EXISTING LAW : 1)Allows parties to consent to electronic service of documents, as defined, and as permitted by rules. Permits courts to allow electronic filing of documents pursuant to rules established by local trial courts and the Judicial Council. (Code of Civil Procedure Section 1010.6. Unless stated otherwise, all further references are to that code.) 2)Requires the court to permit a party or an attorney to file an application for a fee waiver as part of the electronic filing process. (Section 1010.6(b)(6).) 3)Permits a court to require electronic filing of documents in complex civil litigation cases. (Section 1010.6(c).) 4)Requires the Judicial Council to adopt uniform rules relating to the integrity of electronic filing and service of documents in the trial courts, which must include statewide policies on vendor contracts, privacy, access to public records and rules relating to the integrity of electronic service. (Section 1010.6(d).) 5)Sets forth rules regarding electronic filing and serving of court documents. (Cal. Rules of Court, Rules 250-259.) COMMENTS : Existing law allows trial courts to adopt a local rule permitting parties to electronically file and serve legal documents, consistent with specified statutes and rules. This bill, sponsored by the Orange County Superior Court, allows a presiding judge of a court to mandate, by administrative order, that parties to civil actions file and serve documents electronically. In support of the bill, the author writes: "AB 2073 will give the superior courts of California the opportunity to expand electronic filing and service of court documents. This measure will significantly help courts reduce operating expenses, yet allow courts to function more efficiently, more cost effectively and provide greater access to the public at large." Background on Electronic Filing : Electronic filing and service of documents is a significant efficiency for courts that have AB 2073 Page 4 the capacity to process such filings. Many state courts throughout the country have electronic filing capabilities. Some of these courts permit electronic filing, while others mandate it. Likewise, the federal rules allow federal courts to accept electronic filing, if they so choose and permit federal courts to require electronic filing "only if reasonable exceptions are allowed." (Fed. Rules Civ. Pro. 5(d)(3).) Generally, under that approach, only attorneys are mandated to participate. Pro per litigants are generally not required to file electronically. Most trial courts in California today do not have the capacity to accept electronically filed documents, so most courts operate with paper filings and paper files that must be processed, stored and retrieved in time for court hearings. The California Court Case Management System (CCMS) was to have e-filing capacity. Based on significant problems, the Judicial Council voted to stop deployment of CCMS on March 27, 2012. That action included the direction to develop, in the near term, improved court efficiencies through, among other things, e-filing. Judicial Council is now launching an effort that will result in statewide standards for electronic filing. The Availability of Electronic Filing in All Courts in California Would Be a Significant Advance, But Must Be Developed Thoughtfully to Ensure Necessary Protections for Attorneys and Litigants, Particularly Unrepresented Litigants : The fallout from California's budget crisis has fallen disproportionally on the courts, and trial courts budget cuts have, in turn, fallen disproportionally on self-represented litigants. Self-help centers have significantly reduced hours, kiosks have been closed, some courtrooms and courthouses have closed, and many civil courts no longer provide court reporters. But more and more Californians come to court unrepresented by counsel, particularly in family law where an estimated 70 percent of litigants are unrepresented. Any rule that mandates, as opposed to permits, e-filing must take into consideration the needs of litigants, particularly unrepresented litigants, the availability of court resources for assistance, the costs and other burdens. Such a rule should also consider the types of cases that are appropriate for a mandate, as well as the types of documents that should be excluded from e-filing. A rule should also ensure uniformity in AB 2073 Page 5 processing, so attorneys do not have different and potentially conflicting requirements in different courts. Any rule should also ensure that parties are not forced to use only one vendor (so local courts do not get to pick winners), and, should consider the appropriateness of special fees charged if e-filing is mandated and, if so, how fee waivers are to be provided. Proposed Alternative - Permit a Pilot Project in Orange County Superior Court, Followed Very Shortly by a Uniform Statewide Rule of Court Available to All Courts : Given the myriad of questions and the current lack of a uniform rule for mandatory e-filing, but understanding the benefits that could be garnered from a well-considered statewide rule, the Committee may wish to discuss with the author the possibility of allowing one trial court - the Orange County Superior Court since that court currently has the capacity to do so - to establish a short-term mandatory electronic filing program for specified civil cases. The pilot should be developed through local rules of court to ensure that interested stakeholders, such as attorneys, litigants, local bar associations and legal aid organizations, are able to participate in the development of the rule. The pilot should comply with existing requirements in the statute and rules, other than the directive that such programs be voluntary. The rule should ensure that unrepresented litigants are not mandated to participate, but can if they so choose. Additionally, litigants should not be forced to use only one vendor, but should have the ability to either directly file with the court or have a choice of multiple vendors to use. Parties that qualify for a fee waiver should also not be required to pay any additional fee to participate. These are just some of the considerations that should be included in the pilot. The Judicial Council could then, if the Committee so chooses, be directed to study the pilot and report back to the Legislature by December 1, 2013. Based on the results of the study and the issues discussed above, the Judicial Council could be directed to develop, by July 1, 2014, a statewide rule of court that permits trial courts to require electronic document filing, but requires sufficient safeguards to protect attorneys' and litigants' rights and interests. The Orange County Superior Court pilot program would then end when the statewide rules were completed. This should help ensure that, even with the end of CCMS, California can still timely develop technological advances that create efficiencies while protecting the interests of court AB 2073 Page 6 users. ARGUMENTS IN SUPPORT : In support of the bill the Orange County Superior court writes: Our Court accepts approximately one million civil documents each year for filing by the court clerk's office. . . E-filing virtually eliminated the problem of lost or improperly processed documents. More importantly, once the E-filing is complete, the documents will be immediately available to the research attorney and to the judge reviewing the document via the court's computer network. . . . Due to the E-filing presently occurring in Orange County, our Court has realized substantial budget benefits while maintaining a high level of service to the attorneys and public who use the Orange County Superior Court. The successful use of E-filing and other cost-savings innovations by our Court has averted the need for employee lay-offs or unpaid furloughs. E-filing requires less court staff to process cases and manage the court records. E-filing makes the court records available faster and sooner to everyone, including the public. REGISTERED SUPPORT / OPPOSITION : Support Orange County Superior Court (sponsor) Los Angeles County Superior Court Riverside County Superior Court San Diego County Superior Court Opposition None on file Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334 AB 2073 Page 7