BILL ANALYSIS �
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
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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
AB 2073
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