Public Records - Paper Cuts

By Billy Shields
Daily Business Review
October 18, 2007

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Leobijildo Tovar had to file an answer in his child custody case with Iris Gonsalez Flores by March 1, and he didn’t have time to contact his attorney. He grabbed a sheet of paper marked "answer" at the county clerk’s office in Miami and wrote a question by hand about child support to Miami-Dade Family Judge Nolivia Maldonado.

"I want to know what happens if I’ve been helping her always with $100 a week to feed the children," he wrote in Spanish. He wanted to know what affect that would have on the judge’s future determinations about his child support payments.

Tovar’s handwritten filing is a classic in a Family Court Division dominated by people who represent themselves or take matters into their own hands. Some pleadings have appeared on dinner napkins, chewing gum wrappers or other scraps of paper.

But with the advance of technology and the increasing demand for efficiency at a time when the state is experiencing widespread budgetary shortfalls, paper is becoming passe.

Miami-Dade Clerk of the Courts Harvey Ruvin recently announced a plan to make much of the division paperless sometime in January. It’s a move he estimates will cost about $4 million to implement but save the court system at least $1 million a year by conservative estimates. A similar project that introduced optical imaging technology to the Traffic Division in 1998 saved the court system an estimated $30 million after costing $18 million, according to Ruvin.

Under the current plan, documents would be scanned into a central court server that could be accessed via computer terminals every time someone requests a file. The new court management system is developed by Dallas-based Tyler Technologies and uses the trade name "Odyssey."

Initially the plan was met with some skepticism from some judges, such as child support Magistrate Chantale Suttle, until it became apparent that litigants still would be able to use conventional paper to file.

But a completely electronic system is in the works. The newly minted Complex Business Litigation Division is scheduled to start as a pilot project for electronic filing in June. Ruvin said the County Civil, Probate and City Civil divisions are slated to implement electronic filing eventually.

No one knows when electronic filing will arrive in the rest of the court system, or how it would deal with the swelling ranks of pro se litigants who use the court system.
"The question is going to be: How are they going to put it into the system? I’ve never spoken to anybody as to how a paperless system would be implemented, if it ever is fully implemented," said Thomas Tilson, the Family Division’s administrative general magistrate. "If they go to the paperless system, I don’t know how it would actually work."

More than 60 percent of Family Division users are pro se parties, according to Tilson. In areas such as child support, about 90 percent of the litigants are pro se. Computer illiteracy and other shortcomings associated with the other side of the widening chasm between the online and paper spheres has some observers worried that a whole class of people could eventually be left behind.

As Ruvin pointed out, there are obvious benefits to an electronic filing system, especially in Miami. In a courthouse whose basement extends beneath the water table, it’s risky to store paper files too low on shelves for fear they’ll get soaked in a flood. This has happened already, and court workers had to freeze-dry the documents to keep them intact.

Ruvin points out that paper documents have two other major disadvantages — they are both unreliable and inaccessible.

"Paper is the least secure of all formats," Ruvin said. "Paper can only be viewed by one person at one place at one time."

Angry litigants occasionally rip out affidavits or other documents that can go missing — in violation of the law. Especially with family court cases that drag on for decades, stacks of case files sometimes need to be viewed almost simultaneously by more than one judge.

"In the Family Division, a lot of cases don’t end," said Miami-Dade Family Judge Joel Brown, who administers the division. "Family is paper intensive, and there’s a need to share files. That’s why the paperless system saves time."

There are pitfalls to going electronic, however. With the advent of the Internet, electronic fraud became a bigger problem, and court systems have become the unwitting accomplices of identity thieves. Social Security numbers and credit card information that were once squirreled away in obscure files on dusty shelves are often readily available on court Web sites.

The Florida Supreme Court has placed a moratorium that limits what kinds of documents can be displayed on a Web site, and by statute the court system in Florida has until Jan. 1, 2011, to redact private information from public documents, James said. Miami-Dade County courts already are redacting information like Social Security numbers.

The eventual advent of electronic filing also would slightly but significantly alter record-keeping in the Family Division as well. Once a case is concluded and all the documents are scanned, the originals will be destroyed, Ruvin said. According to James, "the Florida Rules of Civil Procedure allow us to think of an electronic image as the original."

This already is happening in the Traffic Division, Ruvin said, which scans roughly 10,000 documents daily.

There are also glitches that accompany any complex electronic system. Ironically, Miami-Dade’s Circuit Court Web site was down during the period this article was being researched.

A docket comprised entirely of electronic documents — with no originals remaining — may cause concern in the arena of public access to court filings as well.

In recent years, The Daily Business Review and The Miami Herald uncovered situations in South Florida where court dockets have been sealed without explanation at the federal and state circuit levels. It remains to be seen what effect a fully electronic docket would have on court secrecy.

Judges and clerks still would have discretion over what documents are added or removed from a case file. In the federal system — which has been largely electronic for years — court secrecy in South Florida came to a head in 2003, after the Daily Business Review reported that the U.S. District Court system was hiding cases from the public. In one instance, drug defendant Nicholas Bergonzoli was convicted, sentenced and imprisoned in total secrecy in 2002.

In another case, a court file made it into the federal PACER online document system, and then was removed shortly afterward.

Miami-Dade County took the first step toward a paperless courthouse almost 10 years ago in February 1998, when Ruvin took the Traffic Division paperless in a project dubbed the Simultaneous Paperless Image Retrieval Information Technology. The court system employed self-help desks about a decade ago during the SPIRIT pilot project to help steer court users through the maze of paperwork that often accompanies a case. Many of the Family Division’s 15 judges and nine magistrates believe that desk — perhaps with an additional re-trained work force — will become a crucial lifeline for litigants in an increasingly electronic future.

"We don’t want to make anything difficult for the litigant," Suttle said. "I imagine what will happen is that we’ll still have the self-help desk."

Billy Shields can be reached at bshields@alm.com or at (305) 347-6649

Electronic Filing on Appeal: What Does the Future Hold?

Howard J. Bashman
Special to Law.com
November 20, 2006

The 8th U.S. Circuit Court of Appeals recently announced on its Web site that it will begin implementing its appellate electronic case filing system in December -- and the other federal appellate courts aren't far behind.

Many lawyers are already familiar with electronic case filings in federal district courts, where ECF systems have been launched across the nation over the past several years.

In the federal trial court system, pleadings, motions, briefs and exhibits are being filed and served on other counsel electronically instead of on paper. Computerized PDF files, which can be read using the Adobe Acrobat Reader, have replaced paper as the format of choice for federal trial court filings.

Federal trial court judges, who were initially skeptical of moving from a paper-based to an electronically based filing system, have generally grown to appreciate ECF, and are now accustomed to reading briefs on the computer. One noteworthy advantage of ECF for these judges is that they can file and serve orders and opinions on any day, and at any time, without relying on the Clerk of Court's office. And thanks to the incremental launch of ECF in the courts, the vast majority of cases that will be the subject of ECF appellate proceedings will have begun as ECF cases in the trial court.

Just as federal trial court judges were once skeptical of eliminating paper with the advent of ECF, federal appellate judges must now decide whether to require the filing of paper copies of briefs and appendices in addition to the ECF copies. Perhaps not surprisingly, federal appellate judges are, at least at the outset, even more reluctant than federal trial judges to abandon briefs and appendices filed on paper.

That reluctance is unfortunate, as ECF offers many potential benefits, the greatest of which may be the elimination of the need for an appendix printed on paper. In the days before ECF's use in federal district courts, only one copy of a paper-based trial court record was generated, which meant the parties on appeal had to reproduce in an appendix additional copies of the most relevant items in the trial court record -- pleadings, exhibits, briefs, transcripts -- so that each appellate judge could have a copy of those materials handy while considering what decision to reach in the case.

However, now that trial court records exist largely in electronic form, multiple ECF account holders can simultaneously access the document. If federal appellate judges have access to electronic versions of trial court files, it clearly makes little sense to require the parties to file paper copies of those pleadings bound into an appendix on appeal.

Unfortunately, even today not all documents that could be reproduced in an appendix on appeal are available electronically through federal district courts' ECF systems. Trial court transcripts, for example, are not available for download via ECF, perhaps reflecting the power of court reporters, who apparently have prevailed on judges to prevent that access, thereby making it more difficult for attorneys to obtain such transcripts without paying a court reporter for them. In addition, copies of exhibits used at trial are not commonly filed electronically in the federal district court.

For ECF systems to serve as a perfect substitute for the appendix on appeal, federal appellate courts will, of course, need electronic access to trial court transcripts and exhibits used at trial. If those items were available electronically to those courts, the appendix on appeal could be eliminated altogether, and the parties on appeal could cite directly to the materials in the trial court's original ECF record.

A compromise would be to either allow or require litigants to file an appendix on paper limited to one 500-page volume containing only those portions of the trial court pleadings, briefs, transcripts and exhibits that are of the greatest importance to the appeal. Doing this in cases with tremendously large trial court records may be especially difficult, but the remaining portions of the record would continue to be available to the federal appellate court electronically.

Alternatively, the federal appellate courts could mandate that any paper-based appendix filed on appeal would be limited to those items not available electronically via the federal trial court's system, as a means of preventing any overlaps with the trial court's ECF documents.

One of the worst possible ways to solve the ECF appellate appendix conundrum would be to require the parties on appeal to compile an entire paper-based appendix, as has been done in the past, and then scan that appendix in to a PDF file, which would then be electronically filed with the federal appellate court. The drawback to this scenario is that PDF files created via optical scanning consist of images of documents whose content cannot be searched or copied and pasted into new documents.

By contrast, most of the PDF files found in trial court ECF systems are so-called "native" PDF files, which have been created directly from a word processor and can be searched via the Adobe Acrobat Reader, and can also be copied and pasted into a new word processing file. Requiring the scanning of federal district courts' native PDF documents to create a new PDF version of the appendix would merely serve to deprive the federal appellate court of the functionality offered by the original native PDF files. This is why I believe that federal appellate courts should, to the greatest extent feasible, eliminate the requirement that an appendix be filed on appeal where the district court materials are available electronically to the federal appellate court.

Although federal appellate courts are unlikely to immediately eliminate the requirement that paper copies of the appellate briefs be filed in addition to an electronic copy, I expect that these courts will ultimately do away with this rule. Federal appellate judges -- like their counterparts on the federal district courts -- will, over time, become accustomed to reading and evaluating briefs on a computer terminal. And federal appellate judges whose fondness remains undiminished for paper copies of briefs can easily satisfy that desire by hinting the "print" button.

Despite all the technological advances in society in general and the court system specifically, comparatively little is still known about ECF on appeal. If federal appellate judges are serious about making ECF a success, they should look to the federal district courts' procedures and try to eliminate paper in their own courts as much as possible.

Given that electronic records on appeal are likely to ultimately replace traditional multivolume paper-based appendices, I conclude that federal appellate courts should embrace these evolving procedures now and set about maximizing the use of electronic records being generated in the federal district courts.

Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., a suburb of Philadelphia. He can be reached via e-mail at hjb@hjbashman.com. You can access his appellate Web log at http://howappealing.law.com/.

The Coming Age of the Electronic
Court Records - Florida and New York

As it appears in the articles below, the electronic filing of records is a matter for consideration in the Florida State courts.  What is questioned is the availability of these records to the public on the internet.  This is already becoming a reality by some courts in New York.

Court Defers to the
Legislature on Electronic Court Records

Southern District Adopts Electronic Case Filing

By Mark Hamblett
New York Law Journal
December 2, 2002

Electronic case filing is coming to the Southern District of New York.

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