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Electronic filing suggests images of the paperless world featured in science fiction movies where we are forced to relinquish one of our favored tools, paper, and trust a bunch of seemingly random electrons. Such a leap of faith may be sufficient to scrap any plans of electronic filing in Minnesota. And yet, in a growing number of jurisdictions and courts, electronic filing is a reality. Despite the initial cost, fears, and learning curve, people are embracing electronic filing because of its overwhelming advantages: it is faster, easier, cheaper, and more accessible to all types of litigants.

Electronic filing (EF) means that (a) a document is transmitted electronically to the court, (b) the court receives, identifies, and records the document, (c) any fees associated with the filing are paid, and (d) the document is posted.1 Although this definition describes the process of filing documents in an electronic environment, the filing process is only one component of the electronic courthouse.

Vital to any EF system are a court case management system (CMS) and a document management system (DMS) which collectively store and organize the documents electronically. Although there are important differences between a DMS and CMS, for ease of use, this article will refer to them jointly as an electronic management system (EMS).

When an EMS is implemented, the clips of paper are eliminated or stored off-site, and all of the information is stored electronically and managed by the EMS. Even paper documents are converted into electronic images and stored in the EMS. The EMS retains copies of the documents, tracks the case and its calendar, ensures that filing fees are paid, confirms judge and jury assignments, and generates reports helpful to the administration of the court.2

Electronic filing provides the court with the document in an electronic medium and ready for filing in the EMS. The task of entering much of the identifying information about the pleading e.g. case name, case number) is shifted to the parties or attorneys, thus further alleviating the burdens on the clerk’s office. Once entered into the EMS, the documents may be searched, retrieved, and printed from numerous stations simultaneously, quickly, and without fear of altering or misplacing the original record. Imaging formats and security protections further ensure that the original record is not altered, lost, or otherwise changed.3

Michael Schechter is a member of the MSBA Civil Litigation Governing Council and the MSBA Court Rules and Judicial Administration Committee, and participates with the Minnesota Supreme Court’s Technology Planning Committee. He is a 1993 graduate of New York University School of Law.

"Electronic filing does not benefit only the clerk’s office. Attorneys and parties gain significantly from EF."

The labor time saved by the clerk’s office makes electronic filing cheaper in the near term. A study by a district court in Kansas found that the time from when a case is filed electronically until a computer-generated summons is issued amounts to 47 minutes, compared with 9 hours and 45 minutes for a case filed on paper and handled by traditional means.4 Because documents filed electronically were publicly posted, the time needed for clerks to respond to telephone calls regarding the status of cases also was reduced.5 In total, the Kansas court estimated that an EF system would save the work equal to one trial court clerk and 1 1/2 records clerks, approximating $34, 996 in annual salaries.6 These clerks were then freed to perform more meaningful tasks.

Considering the money saved in storage space, utilities, materials (such as paper), equipment, and services, EF promises substantial savings over the long term. The initial cost depends in large part on how ready is the court system for EF.

Electronic filing does not benefit only the clerk’s office. Attorneys and parties gain significantly from EF. When a party wants to file a document with the court, it may download its document into the court file and submit a simple form identifying the document with basic information such as case name, case number, submitting party, etc. The filing takes seconds. Most importantly, the party is spared the time and expense of making numerous collated copies of the filing and paying a messenger to deliver the document.

Law firms spend approximately $25 to prepare each paper pleading for filing and to pay a messenger to deliver the pleading to the court.7 In comparison, vendors generally charge subscription or transaction fees that save 50 percent or more for filing documents electronically on their system.8 Some systems even allow service on other parties to be performed electronically, either as part of the filing charge or for a similar additional fee, thus replacing the expense of another paper trail and delivery.9

Pro se litigants could file electronically from libraries or public access terminals, or, could file documents with the office of the clerk, who would post the filing in the EMS. By making computer terminals access points to the courts, electronic filing would diminish the barriers to the judiciary. With a statewide EMS, a litigant could dial one number and fill out the same type of form to file a document in any county or superior court in the state. A litigant who insisted on bringing the documents physically to the courthouse could file the documents with the Hennepin County Clerk’s Office for a case pending in St. Louis County.

Once posted on the court’s EMS, the document could be accessed by other parties, the court, or the public. Security protections could be created for sensitive documents, thus making certain documents accessible only to the court or only to the parties. Parties could check and print the court’s updated docket online without bothering the clerk’s office; they might also access and print pleadings filed with the court from the office or home. Hyperlinks in the text of documents could enable the parties to verify that authorities cited are good law. Other options easily may be incorporated, such as displaying the docket sheet logically (e.g., where responsive documents are listed with the moving document) rather than chronologically.

This instant access to the pleadings also would enable the judge to review files quickly. For instance, if an emergency motion were brought, the court would not need to wait for the clerk’s office to transmit the court record but could access and assess the merits of the motion from the judge’s computer terminal. Further, the court would not be limited to a single court record. The judge would no longer need to worry that someone checked out the record or that portions of the record were lost or altered when checked out. Finally, with a statewide EMS, the appellate courts could access the record directly without the expense and pain of identifying and transmitting a box to St. Paul.

In short, electronic filing is faster, less expensive to the courts and the litigants, provides greater security for the documents, allows easier access and copying, provides search capabilities, provides greater accuracy, and demands less physical space for document retention than conventional filing.10 In using an electronic filing system, the court and the parties would have access to the most current docket, the ability to search and retrieve particular docket items, and the ability to verify the strength of the cases cited.11

EF is not a system too good to be true. There are significant hurdles to create an EF system to work in Minnesota. First, it’s new and therefore suspect. People will worry that their documents are not secure, the documents are not properly delivered or received, the system is subject to crashes, and the system will be too difficult to operate. Second, creating an EF system entails front-end costs even though adopting EF with it will lead to significant savings in the near to long term.

The advantages of EF are inducing other court systems to introduce it. Some jurisdictions, such as the state courts of Colorado and the court of Orange County, California, are using private vendors to achieve electronic filing paid for by users at no cost to taxpayers beyond the costs to courts to support their internal EMS systems.12 Other courts, such as the state courts of New Mexico, have developed independently an electronic filing system and are bringing it online in phases. Some courts have used electronic filing to manage particular cases, such as the asbestos case venued in the state court of Delaware.13 In Minnesota, electronic filing was used in the tobacco case and is used by the Bankruptcy Court.14

First, the document is created. If a party is not using a word processor or is submitting exhibits, then the party may either have the document scanned for electronic filing or may bring the document to the clerk’s office. In the latter case, the clerk’s office would scan the document for the party, assist the party in scanning the document, or create a file for the exhibit. If the document is created by a word processor, then the party can submit the document directly to the court’s EMS either from the party’s personal computer or from a public access terminal.

To file the document, the party first logs into the court’s EMS or onto a third party vendor. Two systems may be used to ensure the authenticity of the submitting party: a password log-in or an electronic signature. With either of these systems, the filing party provides information to the court or vendor that certifies their identity.

A brief form (or, in some vendor systems, a "wizard" process) next is completed that identifies for which case the pleading applies, the type of pleading, the level of access (e.g. under seal), and other such information. If the court system uses an image-based system, the document then is converted to an imaged file. Imaged files offer security advantages compared with text files. Each imaged file contains a string code that identifies the file. If an imaged file is altered, its identifying code changes. The court and parties can use this code to ensure the authenticity of court documents. The document then is submitted for filing and a time-stamped receipt is generated. Parties may print the receipt for their records or may rely on the EMS to display the time the document was filed.

The document arrives virtually instantly at the clerk’s office, where it is authenticated and approved for filing. The EMS then automatically logs the document, time stamps it, files it, dockets it in accordance with the information provided by the filing party, and links it to other dockets. EF systems return a certificate of receipt to the filing party, notify other parties, administer schedules for necessary hearings, and, if necessary, alert the judge. A fully integrated electronic filing system also can process the collection of filing fees. These fees typically are paid either through an account with the vendor, an escrow account with the court, or by credit card or debit card.

The filed documents and docket sheet then are linked electronically and immediately are accessible to the parties, the bench, the court staff, and (subject to the court’s public access rules) the public.15 The filed information may be linked to a search engine that enables documents to be located through searches for key words such as case number, party name, attorney name, or type of motion.

Security questions pervade any EF system. However, these security questions beg further questions about the security features we currently employ. For instance, without a handwritten signature, how would we verify the authenticity of the filer? To my knowledge, we currently have no system to guard against forged signatures and fraudulent filings. Electronic filing offers greater security options by requiring the filer to log-in with a password or requiring electronic signatures. Either of these identifying marks may provide sufficient guarantees of authenticity for Rule 11.

How would we know if a court system were hacked and documents altered? Again, with the current system, if someone checks out a court file, how do we know that the file has not been altered? An electronic environment entails greater risk because the courthouse is accessible to a greater number of people. Although various electronic security protections virtually can guarantee the integrity and authenticity of the documents stored in the EMS, no system can provide an absolute guarantee. The trick is to be able to restore documents that have been altered or destroyed.

In an electronic environment, the court can store back-up files of its documents on compact discs or other devices, and these files contain algorithms identifying the documents.16 If a document is changed and resaved, the identifying algorithm changes. Programs are available to check the authenticity of documents based upon these algorithms. Vendors of electronic filing systems currently offer such options and checking the authenticity of a document takes moments.17

With either the electronic filing system or our current system, there is a risk that documents will be lost or altered. The solution is not to close the doors of the court in fear of compromising the records. Rather, it is hoped that alterations will be noticed and interested parties will correct the record. Electronic filing provides better resources to prove the record because of the identifying algorithms and time-stamp features. An electronic environment also makes restoring the original document as easy as resaving the file from the backup device.

A more credible fear is that a party’s server will be down, an EF vendor’s servers will be too slow, or the court’s EMS availability will be too slow, delaying the party’s ability to file or preventing the filing. A ten-minute delay may be material if the party tries to file at 4:55 p.m. Other courts have resolved this problem by providing for an affidavit to be filed with the court explaining the problem that delayed filing. Although this system may be subject to abuse, a party who consistently has server problems or claims unreasonably long delays may become suspect and need to document its problem. Further, a party should not believe that if it is ready to file at 4:55 p.m. that the filing will be timely, although electronic filing may allow it to be timely. Just as in the current system, sufficient time must be allocated to achieve filing. Traffic delays in the electronic world may be considered similar to car traffic delays in the tangible world. Thus, a court may be inclined to excuse only abnormal delays. This type of problem will best be cured with experience, and perhaps on a case-by-case basis.

"a party should not believe that if it is ready to file at 4:55 p.m. that the filing will be timely, although electronic filing may allow it to be timely."

"A fully integrated electronic filing system also can process the collection of filing fees."

Electronic filing is part of Minnesota’s future. It offers too many valuable features to be ignored or dismissed. The only question is how soon will Minnesota take advantage of its options.

The Technology Planning Committee of the Minesota Supreme Court is beginning to investigate electronic filing in Minnesota in conjunction with the upgrade of its information management software. This software upgrade likely will incorporate the platforms necessary to institute electronic filing. In short, once the new information management software is online, there will be little remaining cost to institute electronic filing. Unfortunately, the committee contemplates a long timetable to research and implement its new software. It will complete its analysis phase in October 2000. As the committee learns how other courts have implemented proven EMS systems, however, its pace may quicken.

Although there is no rush to electronic filing, there also is no reason to delay. Electronic filing already is used in the Bankruptcy Court in Minnesota. It will become an option in state courts once the EMS used by the state judiciary is upgraded. The Technology Planning Committee must consider how the court rules will need to be amended to allow for electronic filing, and these amendments will suggest features that an electronic filing system must offer. The committee also must further consider how to train the clerks, bench, and bar; and how to ease the transition from the paper office to the electronic office. Although these changes and their attendant costs may at first seem unwelcome, the advantages and savings of electronic filing soon will win over the bench, bar, and clerks.

1 Institute for Court Management and National Center for State Courts, Conference on Electronic Filing (December 1-3, 1999) (hereinafter ICM Conference); see also National Center for State Courts, A Guidebook for Electronic Court Filing 2 (1998) (sponsored by West Group) (hereinafter EF Guidebook).

2 EF Guidebook, supra note 1 at 3-4.

3 ICM Conference.

4 http://www.shawneecourt.org/press.htm (press release of January 15, 1998).

5 ICM Conference.

6 http://www.shawneecourt.org/press.htm (press release of January 15, 1998); see also EF Guidebook, supra note 1 at 139; Mark Hansen, "Courts Saving Time and Trees," ABA Journal (March 1999) at 20.

7 http://www.westfile.com/research.htm#costs; see also Minnesota State Courts Annual Report (1998) (visited August 2, 1999) http://www.courts.state.mn.us/sca/scarpt98.pdf.

8 ICM Conference (e.g. Verilaw vendor charges two to three dollars per document, JusticeLink charges ten cents per page with a two dollar minimum).

9 Id.

10 ICM Conference.

11 Id.

12 Nicholas C. Zales, "E-Filing Gets Real," The Internet Lawyer at 11 (Sept. 1999); ICM Conference.

13 Mark Hansen, "Courts Saving Time and Trees," ABA Journal (March 1999) at 20.

14 According to a report, 22 states in the United States have implemented or are currently developing e-filing projects in federal and/or state courts; three states have case-specific e-filing projects; 14 states are researching e-filing, implementing supporting technology, and/or allowing limited forms of e-filing that are not Internet-based; only 11 states have not yet conducted known e-filing projects or research. "The Invasion of E-Filing," Law Office Computing, April/May 1999 at 48.

15 Administrative Office of the United States Courts, Electronic Case Files in the Federal Courts (Discussion Draft) 12 (March 1997).

16 ICM Conference.

17 During one of the lectures at the ICM Conference, a vendor demonstrated this option online. The verification process took approximately 90 seconds.