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Illinois Bar Journal

The Magazine of Illinois Lawyers

January 2013Volume 101Number 1Page 20

January 2013 Illinois Bar Journal Cover Image

Legal Technology

E-Filing Gets the Green Light

By
Maria Kantzavelos

Are you ready for service by e-mail? Filing at 11:59 p.m.? The electronic record as official court record? Effective January 1, the Illinois Supreme Court has taken a big, 21st-Century step toward making e-filing the norm and not the exception.

It's touted as cheaper, faster, more efficient, and environmentally friendly, and with the green light given recently by the Illinois Supreme Court, electronic filing has come one step closer to becoming the norm for filing civil cases and documents in the state's trial courts.

The high court in October announced the end of the pilot stage of e-filing in Illinois and issued administrative orders that set uniform, statewide standards and related rule changes which, effective Jan. 1, allow all circuit courts here to pursue systems that manage digital submission of paperwork in civil cases.

Since as early as 2003, circuit courts in only a handful of counties in Illinois have been approved to operate e-filing systems - mostly on a limited basis - as part of a pilot project. With the supreme court's lifting of the pilot designation, circuit court clerks in those counties - Cook, DuPage, Madison, St. Clair, and Will - may now move to permanent e-filing procedures that could apply to virtually all types of civil cases there. Meanwhile, those counties can continue their operations as they had during the pilot phase while they make sure their procedures meet the new standards, which were approved by the supreme court as a means of maintaining uniformity of electronic filing practices and procedures throughout the state.

Under the newly adopted e-filing standards and principles, the circuit courts in all 102 Illinois counties may elect to initiate their own e-filing systems for civil cases. For those who do, the chief judge or presiding judge and clerk of those courts are required to engage their local bar associations in the planning and development process and seek the high court's approval before implementing an electronic filing system that allows attorneys and others to file court documents anytime and anywhere from a computer.

That approval is contingent upon compliance with the high court's new standards and principles, which address such issues as system security, electronic access to court records, and identity verification of the filing party. Other minimum requirements include 1) providing a link to a utility that enables users to convert documents to PDF files, 2) verifying to the filer that the document is received by the clerk's office along with the date and time of the electronic filing's submission, and 3) notifying registered users that the clerk's office has accepted or rejected an electronically transmitted document for filing.

And, effective January 1, lawyers and parties can serve documents via email to other attorneys or parties that have consented to email service, and attorneys and parties in local circuits that have adopted mandatory e-filing programs must include an e-mail address for service of documents on appearances and on all pleadings filed in court (see sidebar for more).

A rolling implementation

Just what will the new statewide standards on e-filing and related rule changes mean for attorneys? That depends primarily on where they practice, said Sterling attorney Trent L. Bush, who serves on the ISBA Standing Committee on Legal Technology.

"This is allowing a change to happen," Bush said.

The presumption, Bush said, is that counties with pilot-project e-filing systems will continue and, over time, others that had been considering e-filing will move forward.

"For some of the smaller counties, I imagine it's going to be some time. It may not be in the immediate future," Bush said.

The justices have charged the director of the Administrative Office of Illinois Courts with maintaining a program of implementation and supervision to ensure the electronic filing standards and principles are correctly and uniformly employed in each county.

AOIC Director Michael J. Tardy pointed out that each county has different priorities, needs and resources. As such, he said, he expects counties with pilot programs to go forward as soon as they can, while others may wait to see how e-filing develops in other counties.

"All five [counties operating e-filing systems as part of the pilot project] are certainly assumed to be able to move from their pilot status to permanency and to be in compliance with the court standards," Tardy said. "Several others have expressed a strong interest and a readiness. A couple are in the wings and we're certainly anticipating getting materials from them as well. I think there will be an early strong interest."

Filing at 11:59 pm

The new standards and rule changes are the product of the Illinois Supreme Court Special E-Business Committee created in June 2011 by Chief Justice Thomas L. Kilbride, who has emphasized making Illinois court operations more economical, more efficient, and more user friendly by implementing improvements in technology as a priority for his term as chief justice.

"Illinois is behind on using e-business and e-filing in its courts," Kilbride said in a statement. "These uniform, statewide standards allow e-filing in our courts; it is no longer part of a wish list. Circuit courts may now use e-filing's greater efficiencies and long-range cost savings in addition to offering a modern way of doing things."

For attorneys practicing in counties that elect to move forward with an e-filing system that complies with the new standards, the days of hauling stacks of papers to the courthouse for so-called over-the-counter filings with the circuit clerk would come to an end.

The length of time attorneys spend on the traditional way of filing papers due in court - delivering the typed, reviewed, and signed papers from the law office to the courthouse via a hired courier or by the attorney's own hand, and having them physically file-stamped by the clerk's office and returning them to the law office, where copies are scanned and stuffed into envelopes to be mailed to opposing counsel and parties - can be shaved significantly with a few mouse clicks and computer key strokes via the e-filing method, said Chicago personal injury lawyer Bruce R. Pfaff.

Pfaff chaired the Supreme Court Special E-Business Committee, which consulted with representatives from bar groups, appellate lawyers, circuit court clerks, and members of the Illinois Judicial conference to come up with a proposal for the high court.

"For our non-lawyer employees, or lawyers who don't have employees, that very menial job will go away and that person will then be able to do some meaningful work around the law firm," Pfaff said. "It's a tremendous plus for productivity."

Ultimately, those attorneys should also see some cost savings, Pfaff said.

Consider, for instance, a response to a motion for summary judgment that is due to be filed in court. "We have to attach the whole deposition.…If I have to mail that to four other law firms it might cost $40 in addition to printing costs, and someone's time handling it and all that ridiculous paper handling. It's expensive and it's time consuming," Pfaff said. "By having it electronically attached, you serve that electronically upon your opponents, and in three clicks you save a lot of money and a lot of time."

Sterling attorney Bush, who also served as a member of the high court's Special E-Business Committee, said an effective and efficient e-filing system brings an element of increased certainty in filing cases and case documents as well as greater convenience to lawyers.

Under the new standards, attorneys could submit electronic documents or records to the circuit court clerk any time and from anywhere. Pleadings received by the clerk before midnight on a day the courthouse is open are deemed filed that day, according to the new, statewide requirements for e-filing. If filed on a day the courthouse is not open for business, the document is to be deemed filed the next business day.

That means if an attorney is working under the deadline pressure to file a document with the circuit court, "You don't have to run over to the clerk's office," Bush said. "Rather, you can be out of state, or in a different place, or in your office, or home and effectively file a document.…If it's a court day, if in that system I file it at 11:59 this evening, that will be effective as being filed today, when my deadline was."

He said most attorneys would appreciate the extended hours that would come with e-filing here.

"Sometimes, for whatever reasons, you need that time - to get something signed [or] certain information back. Having those additional hours is welcomed," Bush said.

In contrast to handing over paperwork to a courier to deliver to the courthouse and assuming the documents will get there before closing time on a due date, e-filing provides greater certainty and confirmation that a document was actually submitted, Bush said.

Under the new standards, he said, "The clerk is generally going to have some review, but you should receive that confirmation back that the document you submitted has been received by the clerk.

"There's an element of having more certainty with being able to control the process by submitting it electronically."

Electronic records as official records

Another of the administrative orders issued by the high court allows circuit courts throughout the state to make their electronic records the official court record, a move that Pfaff called "the landmark for Illinois."

Such a move allows circuit courts the capability to drastically decrease the use and storage of paper documents, resulting in a big cost saving at a time when Illinois courts are facing a looming funding crisis.

Through e-filing and the use of the electronic record as the court's official record, Pfaff said, "We have the capability, if we adopt that court by court, just really to save untold dollars.

"If the courts adopt the electronic record as the official court record, think of all the money the court system will save in not buying file folders, not having people fill folders, not having boxes of records stored and lost," Pfaff said. "We will enter the 21st Century a little bit late."

In the lead article of the Illinois Bar Journal's November 2012 issue on the topic of court funding by Kilbride, the chief justice put the cost savings of enabling courts to manage documents without the necessity of paper into perspective.

"Paper documents are expensive," Kilbride wrote. "For instance, every year, the DuPage County Circuit Clerk spends $80,000 on file jackets alone to store paper documents. In 2011, Cook County spent almost $16 million on circuit court document storage. Substantial savings lie ahead by moving court documents from paper to electronic document filing and storage. Instead of relying on storerooms and warehouses full of paper documents, courts can store records on lower cost servers and small hard drives. As we see the fruits of these efforts and others like them, we will continue using new technological advances to ensure our judicial system remains a responsible recipient of Illinois tax dollars."

In DuPage County Circuit Court, which has been operating an e-filing system as part of the pilot project since 2004, court officials have long been waiting for the opening of the door to the electronic record as the official record there, the court's Chief Deputy Clerk Dewey Hartman said.

"This is a big, major thing for us - and it's a very good thing," Hartman said.

Even though DuPage has been operating an e-filing system that accepts documents in all types of civil cases - except, of course, wills - the pilot project mandated that electronic filings be printed and maintained as paper records by the circuit court clerk.

"It affords us the opportunity to send and receive records electronically and not have to have paper copies to back all that stuff up. The paper literally can be returned to the sender," Hartman said.

In some Illinois counties that may be lacking the infrastructure, crossing over from the paper record to the electronic record may not be a move for the immediate future, the AOIC's Tardy acknowledged.

"There are a number of vendors who can accommodate e-filing given the standards the court has promulgated at a fairly low cost for counties," Tardy said. "The next issue, to go to an electronic record, really means the clerk's office has to have the infrastructure and resources to be sure that not only can they receive things electronically." Those offices would also need the document management and case management systems that can support the processing and maintenance of electronic records, Tardy said. "There are some costs there that I suspect may slow it down in a few cases," he said.

Hartman said the circuit clerk's office in DuPage stands ready to make the switch. The clerk's staff has been building the court's electronic files since 1991 and - while the pilot e-filing project was operating - imaging and scanning paper documents into digital form. So far, Hartman said, the court has records dating back to 1981 that are available online.

"The court system today, as it has been for many years, is very much paper-based," Hartman said. "Right now, we have 60 million documents online, and that's back to 1981. So when you think about how many [paper] documents that is, how much shelf space that takes up in our storage facilities, it's just huge.

"Now the court's saying we can move from the paper record to the electronic record. That means all that paper can start disappearing and going away."

Such a move also changes the business of the circuit clerk's office. With electronic records as the official record, there would be no more running down to the vault to pull a case off the shelf and send it to whoever requested to see it. Rather, the electronic record allows everybody with a computer to access the same file simultaneously.

"If we've got people in court or in a law office or at the state's attorney's office looking at a case, they can all look at it at the same time," Hartman said.

In many cases already in DuPage, Hartman said, "We have courtrooms today where we don't take files to the courtroom. If you're a member of the legal community and have access to our system online you can look at the case online and don't need to come to the courthouse and pull the file."

In some courtrooms there, judges from the bench equipped with computer terminals simply "hit a button and can very quickly view a document," Hartman said.

E-filing fees - no more than the vendor charges

The pilot projects in counties like DuPage and Madison have also illustrated how e-filing boosts productivity in the administration of the courts as well as in a sole practitioner's law office, Pfaff said.

"We know from the pilot projects that it has the ability to take people [working at circuit clerk counters] from silly jobs of standing there stamping papers and scanning documents to more meaningful jobs," Pfaff said.

Since e-filing became available in DuPage in 2004, clerk staff members handling filings at counters in the court's Civil Division went from 15 people to two, Hartman said.

That saves money, Hartman said, but it also "allows us to do a lot of things better, too.

"We utilize the people for other things, the things we didn't have time for before, and we get better at being a court clerk - having more accurate records, making sure records are more secure, and making it more available faster."

DuPage County at one time during the pilot project was using several e-filing vendors. Today, the county uses two vendors. But one of those vendors, i2File.net, is used by nearly all e-filers there. That vendor worked with the county clerk to create an e-filing application that allows a registered client to e-file documents with no service charge to the filer. The cost of the service is underwritten by the circuit clerk and was initially created out of concerns the court had about providing the service for pro se parties.

"We pay less than $10,000 per year to provide the service to e-file in DuPage County at no cost. "It [e-filing] saves us way, way more money than that - and it's beneficial."

Providing the service at no additional charge, Hartman said, also encourages e-filing.

E-filing fees, however, are attached to the service provided in several of the other counties that have been part of the pilot project. For instance, in Cook County, where e-filing has been available only for commercial law division cases seeking more than $30,000, the applicable filing fee and an e-filing fee must be paid before the filing will be completed.

Now, under the supreme court's new e-filing standards, courts are prohibited from charging any additional filing fees or engaging in a fee-sharing arrangement with the chosen e-filing vendor. However, according to the standards, that mandate does not preclude an e-filing vendor from charging fees for electronic filing services to litigants. When filing electronically, the justices said, the filer must make payment of requisite filing fees to the clerk of the court pursuant to local rule. And, when the e-filing includes a request for the waiver of fees by a petition for indigence, payment of the requisite filing fees must be stayed until the court rules on the petition.

The issue of e-filing fees was a topic that members of the high court's special e-business committee discussed at length, Sterling attorney Bush said.

"There's a broad consensus that anything that's electronically filed should not cost any more than it would if I walked it over to the clerk's office over the counter. The theory being that eventually the adoption of an e-filing system will result in cost savings, not additional costs, to the clerk's office," Bush said. "The concern of the clerk is that, 'it will cost me X amount of dollars to have this service that attorneys will utilize. Where am I going to get this money from?' The compromise is, although courts cannot charge more than they would over the counter, they are authorized to add a fee from the service provider."

E-filing fees under the new, expanded standards statewide, Bush said, will be "more a function of what particular system a clerk decides to utilize.…There may be systems that develop within particular jurisdictions where there's not a cost."

Protecting personal identity information

Another change for lawyers practicing in the civil arena, whether or not the circuit court in their county implements an e-filing system, is coming with the adoption of new Supreme Court Rule 138, which when it takes effect next July 1 will prohibit personal identity information from being included in documents or exhibits filed with the court - whether in paper or electronic filing. If a court orders the filing of documents that contain personal identity information, it establishes specific steps to file it under seal in a separate document.

By barring personal identity information such as Social Security numbers, birth dates, mother's maiden names, driver's license numbers, financial account numbers and debit and credit card numbers, the emphasis is on protecting against identity theft and disclosure of sensitive information, according to the committee comments accompanying the new rule.

And, as a result of an amendment to Supreme Court Rule 201, no discovery may be filed with the clerk of the circuit court except by order of court.

Pfaff praised the supreme court for the rule change prohibiting the filing of any discovery.

"There's really no reason to file discovery," Pfaff said. "Discovery responses contain very private information. That's an unnecessary invasion of privacy. The court did a great thing."

Uniform standards for a decentralized court system

Unlike the standards allowing jurisdictions in Illinois to come up with their own systems for e-filing if they so choose, there are states that operate unified electronic document management systems and e-filing systems, including Mississippi, Alabama, and Iowa. And, in the federal courts around the nation, the PACER system is used for e-filing and other e-technologies.

But court officials have been faced with unique challenges associated with e-filing in Illinois, where 102 counties are organized within 24 circuit court jurisdictions and five appellate districts, where clerks of those counties are elected, and where both the state and the counties provide financial support for the operation of the courts.

Another complication to having a technological infrastructure that would link electronically all the courts in the state's 24 judicial circuits, providing a unified system for the electronic filing of cases and case documents in all of the state's trial courts, is that there are now at least 12 different circuit court management software systems operating in the various court jurisdictions that would have to be integrated with any e-filing program under the new statewide standards.

Tardy said the high court's recent move was a significant one in that it provides uniform standards and principles that allow local jurisdictions in all of the state's counties to define their own best models for e-filing while serving as a baseline for what they would need to do in moving to a virtually paperless operation.

"At this point, we really want to get e-filing up and running," Tardy said. "When the supreme court issued the orders, the standards and the rules, it was with an incredibly strong and committed intent that technology aids in the administration of justice, and that each jurisdiction is strongly encouraged to make this happen."

An effective and efficient e-filing system should benefit all involved in the judicial system, Tardy said.

"The big benefit that we know about for practitioners, clearly, is the time savings and cost savings in the use of electronic transmission of filings. It ought to be big," Tardy said. "For the pilot sites that have been so successful in this, [the new standards] will really expand it. We're very hopeful that this is a help to parties, certainly the attorneys and practitioners, and certainly the clerks and the judges themselves."

Maria Kantzavelos <mkantz@comcast.net> is a Chicago-based freelance writer focusing on legal topics.

Service by email - amended Rule 11

The supreme court's newly amended Rule 11 brings a change that affects service of documents electronically in the trial courts.

Under the amended rule, attorneys and parties involved in civil cases must include an email address for service of "documents" on appearances and on all pleadings filed in a local circuit that has adopted mandatory e-filing. (The digital-friendly word "documents" replaces "papers," which appears in the pre-amendment version of the rule.)

The rule amendment allows, but does not require, a lawyer to receive documents delivered by email as valid service. It also expressly allows transmission to consenting attorneys and parties through a service that provides an electronic in-box for those registered to use it, a change designed to avoid the file-size limits and other problems inherent in sending email with large attachments.

For many practitioners, e-service and not e-filing will be their immediate concern. "Even for me practicing in Whiteside County, and in counties that probably are not going to adopt an electronic filing system any time soon, [service by e-mail is] a change that will have an impact right away," e-business committee member Trent Bush said.

Consider, for example, the process of serving opposing parties and attorneys with a motion to amend a complaint that's been filed with the court. "Traditionally, I would have to mail a copy of everything I file with the court to opposing counsel and parties," Bush said. Now lawyers will be able to do that electronically to other lawyers and parties who consent rather than sticking it in the mail, he said.

"People have accepted communicating by email as…appropriate, economical, and convenient….I think that the ability to serve parties by email will be welcomed by Illinois attorneys," he said. With the popularity of smart phones and the amended rule allowing documents to be served via email, Bush said, "You're going to know that that pleading is out there, rather than maybe catching up with it a few days later.…It will allow attorneys to be a little more on top of their cases."

 


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