E-Filing: Then and Now

Over the past decade, we have witnessed a technological revolution that has fundamentally changed our lives. We now routinely check the internet for news updates and shop online, not to mention social networking and tweets. Even in the staid and traditional world of justice, we are affected by this revolution.

A little over 10 years ago the New York state Legislature enacted Chapter 367 of the Laws of 1999, which created a pilot program to test electronic filing ("e-filing") in certain civil cases. When the New York State Courts Electronic Filing System was introduced in 1999, only one case was e-filed all year.

Ten years later, e-filing by New York's legal community has increased exponentially. Since 2002, the number of attorneys registered to e-file their cases has grown from 300 to over 13,000 currently registered. As of the end of 2009, over 200,000 cases and over 500,000 documents have been e-filed with the system.

After 10 years of acceptance and growth, electronic filing in the state courts significantly advanced with the enactment of Chapter 416 of the Laws of 2009, effective Sept. 1, 2009. With this new legislation, electronic filing now has a permanent place in New York's legal system. The legislation makes three important changes to New York's e-filing program.

THE NEW LEGISLATION

First, under the new legislation, e-filing is no longer an "experiment," subject to a series of sunsets and requiring renewed legislative authority every two or three years.

Second, legislative approval is no longer required to expand the program; rather, the court system is authorized to promulgate rules permitting voluntary participation in e-filing in additional counties and in more classes of cases.

Finally, the legislation provides for the establishment of a program of mandatory e-filing in certain jurisdictions in specific types of cases.

Under Chapter 416, the Judiciary may now authorize e-filing statewide for civil cases in Supreme Court, in Surrogate's Court, and in all classes of cases in the Court of Claims and the New York City Civil Court, where the parties consent.[FOOTNOTE 1] The failure of one party to consent to participation does not bar any other party from filing papers electronically with the court, or from serving papers electronically on any party who has consented to participation.[FOOTNOTE 2]

E-filing has up until now been entirely voluntary, an available option. Chapter 416, however, provides that the Chief Administrative Judge may, after consultation with the bar and the county clerk of the jurisdiction involved, mandate e-filing in certain types of cases in three counties:

• in substantial commercial cases in New York County Supreme Court;

• in tort cases in Westchester County Supreme Court; and

• in one or more classes of cases (with the exception of matrimonial actions, election law proceedings, Article 78 proceedings, or proceedings brought under the Mental Hygiene Law) in the Supreme Court of one county outside the city of New York.[FOOTNOTE 3]

The legislation permits attorneys to obtain an exemption from mandatory e-filing upon submission of a certificate stating in good faith that they lack the hardware or knowledge necessary to participate.[FOOTNOTE 4] A court may also, upon application, exempt an attorney from participation upon a showing of good cause.[FOOTNOTE 5]

The enactment of Chapter 416 represents a significant step for the courts of New York, and evidences our lawmakers' commitment to ensuring that New York remains a leader among the nation's judiciaries and an attractive home to the business community worldwide.

E-FILING GOES MAINSTREAM

In the 10 years since e-filing was introduced in New York, the use of electronic filing has become standard in the federal courts, and has gained widespread acceptance in state court systems throughout the country.

All federal district courts in New York state have mandated electronic filing since 2004. At the end of last year, the Case Management and Electronic Case Filing System was in use in 99 percent of the federal trial and appellate courts nationwide.

In addition to New York, there now are statewide e-filing programs in place in 13 other states, including California, New Jersey, Ohio, Texas, and Delaware, which, like New York, is a major center for business litigation in this country, as well as Connecticut,[FOOTNOTE 6] where e-filing has been mandatory in most civil cases since December 2009.

Electronic filing enjoys wide support among the bar for the many advantages it offers to practitioners, litigants, and the general public.[FOOTNOTE 7] E-filing lowers the cost of litigation, makes the litigation process more convenient and expeditious, and promotes broader public access to records while preserving the privacy and integrity of those records.

It has garnered the support of the bar as a democratizing technology that levels the playing field between large firms and solo and small-firm practitioners,[FOOTNOTE 8] and is particularly helpful to attorneys whose offices are located in areas of the state in which distance, from the law office to the courthouse, or to the office of adversary counsel or to the county clerk's office, is a factor and imposes a cost on practitioners and clients.

In addition, the e-filing system strikes a sound balance between the need for ready public access to court records and privacy interests, providing for the protection of personal information, such as an individual's social security number, without the need for a court order.

ALSO CLEANER AND GREENER

E-filing significantly advances the broad public interest in a cleaner and greener world.

It is estimated that new cases filed in New York each year result in the filing of 100 million pieces of paper in the courts, with the same amount of paper being transported around the state for service on opposing parties.[FOOTNOTE 9] E-filing minimizes the use of paper, thereby avoiding waste and reducing recycling costs. It also reduces the cost of fuel otherwise consumed in filing, serving and retrieving hard copies of litigation papers.

Among its other benefits, e-filing saves space; reduces the substantial cost of storage, on-site and off; simplifies document handling; expedites access to files; eliminates the burdens involved in the transportation of files between the county clerk's office or storage facilities and the court; and assures complete files, preserving their integrity and protecting against loss of documents.

Last year, the total caseload of the New York state courts for the first time exceeded 4.7 million filings. As our courts become busier than ever, the passage of Chapter 416 helps to ensure that New York's judiciary will be up to the critical task of delivering justice in the fairest, most efficient and most cost-effective manner possible.

There can be no doubt that electronic filing is the future of the New York state court system. The transition to litigation in the digital age will require time, effort and commitment, and the judiciary looks forward to working closely with the bar and the county clerks as we move into this exciting new world.

Ann Pfau is chief administrative judge of the New York State Unified Court System.

::::FOOTNOTES::::

FN1 C.P.L.R. 2103(b)(7); L. 2009, c.416, 2. As of this writing, e-filing is active in the follows courts and case types: all Supreme Court civil case types in Broome and Erie counties; Surrogate cases in Chautauqua and Erie counties; "no fault" cases in the New York City Civil Court; Court of Claims cases in the Capital District; and tax certiorari, commercial, and tort cases in Albany, Bronx, Kings, Livingston, Nassau, New York, Niagara, Queens, Richmond, Suffolk and Westchester Counties.

FN2 L. 2009, c.416, 2, amending L.1999, c.367, 6, subdivision (b).

FN3 L. 2009, c.416, 2. If any such mandatory project is instituted in any of these three jurisdictions, it may not commence prior to March 1, 2010 and will sunset on Sept. 1, 2012. L. 2009, c.416, 7.

FN4 L. 2009, c.416, 2, amending L.1999, c. 367, 6, subdivision (b)(C)(i).

FN5 L. 2009, c.416, 2, amending L.1999, c. 367, 6, subdivision (b)(C)(ii).

FN6ABA Electronic Filing Resource Page.

FN7 Resolution of the NYSBA House of Delegates, at 1 (March 31, 2007); New York City Bar, "Comments by the Association of the Bar of the City of New York on the Report and Recommendations of the Task Force on Electronic Filing of Court Documents of the New York State Bar Association" at 2 (March 5, 2007); New York County Lawyers' Association, "Comments on the Report of the Task Force on Electronic Filing of the New York State Bar Association (Dec. 28, 2006) and Suggestions for the Expansion of Electronic Filing in the New York State Court System," at 12-13 (February 2007) ("NYCLA Report").

FN8 NYCLA Report at 12-13.

FN9Green Justice: An Environmental Action Plan for the New York State Court System, at p.7.

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