Presiding Justice Eng
NYLJ/Rick Kopstein
Electronic filing has arrived. It saves money, time and makes for the efficient use of professional resources. What follows is a brief review of some of its features and benefits, as gathered from recent publications and reports of the Unified Court System.
The Unified Court System has, over the course of the past decade, made an ongoing commitment to the implementation of e-filing. The program, begun as a voluntary pilot program in 1999, has grown to the point where over 10 years later almost 1.3 million documents have been e-filed in approximately 300,000 cases. While not yet of the scale of the federal courts (where e-filing is generally mandatory and it is estimated that over six million documents are filed every month), e-filing in New York will inevitably continue to grow.
There are more than 23,000 registered e-filers in the New York State Courts Electronic Filing System (NYSCEF). Becoming a registered user is a simple process; a single password and user ID allows an attorney registered in New York to file in any case where e-filing is authorized.
The system has been shown to be secure and efficient. Attorneys can access their cases anytime, day or night, from any location with an Internet connection. No special software or hardware is needed. Rather, the common fixtures of the modern law office—the computer, along with a scanner, Internet access and the standard Web browser and PDF reader/writer—are all that are required. The email address of the filer may either be the party's email address or the attorney's email address, if the party is represented.
Filing papers is quite straightforward. In order to file documents, a registered user is able to sign onto NYSCEF and, after completing some simple informational screens, is able to transmit a document to the system. After the document is transmitted, email confirmation is automatically sent to the filer. Third-party notifications are also transmitted. Thus, under NYSCEF, after the commencement papers are served, the parties may then serve subsequent papers electronically.
There are several layers of security in NYSCEF. First, the document is transmitted as a PDF file, which means it cannot be altered as could a word processing file. Also, all files are encrypted upon receipt. The filer has the option of designating the file as "secure" upon filing. This does not require court approval and prevents the viewing of the document by non-parties from terminals outside the courthouse. Finally, a filer may seek a court order sealing the entire file or a specific document.
Benefits
E-filing is cost-effective. Chief Judge Jonathan Lippman last year estimated that the overall savings to litigants, the bar and the court system resulting from e-filing will eventually exceed $300 million a year. From the point of view of the court system, whose recent budgetary constraints are well known, this is a most beneficial outcome.
From the point of view of the practicing attorney, e-filing has the potential to sharply reduce expenses. Costs for record storage, service of papers, travel to the courthouse to file papers or retrieve documents and other expenses inherent to litigation are sharply reduced by e-filing. Indeed, under e-filing, papers can be filed and filing fees paid at any time, day or night, resulting in increased attorney efficiency and the ability to focus more on the needs of clients than routine office tasks. Productivity is also increased by permitting multiple users on court files at any given time: Under e-filing, attorneys, judges and other court personnel can access a file simultaneously.
Onward and Upward
E-filing began as a pilot program in certain civil cases where participation was on consent. In subsequent years, there was an incremental expansion of the scope of the program. Then, after a decade of experience, in 2009 e-filing ceased to be a pilot program. The chief administrative judge was empowered to promulgate rules authorizing a program of consensual electronic filing and service of documents in cases in the Supreme Court, the Court of Claims, the Surrogate's Court and the New York City Civil Court.
Voluntary filings are now permitted in the Supreme Court in 15 counties, in a variety of civil cases, particularly commercial, contract and tax certiorari matters. Voluntary e-filing has also been instituted in Surrogate's Court in 11 counties and in the Albany district of the Court of Claims. The system is also available in newly filed New York City Civil Court no-fault actions.
Mandatory e-filing has been implemented in a limited number of cases. On May 24, 2010, mandatory e-filing began in newly filed commercial cases in New York County. By administrative order dated Jan. 12, 2012, issued by Chief Administrative Judge A. Gail Prudenti, mandatory e-filing was expanded in New York County to include all commercial, contract and tort actions commenced on or after Feb. 27, 2012. Also authorized was mandatory e-filing in Supreme Court in Westchester and Rockland Counties for all actions except Article 78 and election law proceedings and matrimonial and mental hygiene cases. All commercial actions in Kings County seeking in excess of $75,000 and commenced after Feb. 27, 2012 are subject to mandatory e-filing, as are medical malpractice actions commenced in Bronx County after that date.
Despite its ease, there are users who might lack the equipment or knowledge necessary to e-file. The rules provide that attorneys or self-represented individuals may "opt-out" of the mandatory e-filing program. A self-represented party who wishes to opt out need only file a simple form in order to be relieved from the requirement. An attorney who wishes to opt out because of lack of equipment or expertise need only file a form certifying that fact.
Information technology permeates all aspects of the contemporary practice of law. Successive studies by the Unified Court System have indicated that almost all attorneys use email in their practice and that a substantial majority of them use a smartphone or similar device, a desktop computer, a laptop, and electronic legal research. Significantly, almost 72 percent of the respondents to the surveys had participated in the federal electronic filing system and about 70 percent of those respondents use the electronic filing system weekly or monthly. E-filing in the New York state court system compliments these developments. Its expanded use in the coming years should confirm its proven benefits to the bench, bar and public.
Randall T. Eng is Presiding Justice of the Appellate Division, Second Department.
