BILL ANALYSIS                                                                                                                                                                                                    Ó



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          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 








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          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 








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            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 








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          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 








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          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 








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          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 












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