E-Filing in State Courts Task Force Report November 2006 TASKFORCEONE-FILING REPORT • NOVEMBER 2006 INTRODUCTION History Behind Formation of the Task Force At the Oregon State Bar House of Delegates meeting in October 2002, delegate Kenji Sugahara proposed a resolution to urge the Oregon Supreme Court to allow electronic filing projects. The resolution stated: WHEREAS, the House of Delegates of the Oregon State Bar has the duty in annual session to debate matters of concern to the membership of the Oregon State Bar and to provide learned advice and direction on matters concerning the practice of law in the state of Oregon; WHEREAS, the House of Delegates of the Oregon State Bar believes that electronic filing of court documents will improve the practice of law; WHEREAS, the federal court for the District of Oregon is running an elec- tronic filing pilot project, but there is no counter-part in the state courts of Oregon; WHEREAS, the Information Technology Department of the Oregon Judicial Department does not have the resources to implement electronic filing proj- ects; now, therefore, be it RESOLVED, that the House of Delegates requests and instructs the Board of Governors of the Oregon State Bar to urge the Supreme Court of Oregon: 1.To allow private vendors to engage in electronic filing pilot projects in the state of Oregon; 2.To allow only those vendors who subscribe to the legal XML stan- dard or substantially similar standard to participate in pilot projects; 3.To allow individual courts to choose their vendors with minimal over- sight from the Information Technology Department of the Oregon Judicial Department; 4.To allow individual courts to allocate resources to these pilot projects as they see fit; and 5.To adopt rules of procedure to enable electronic filing. The House of Delegates overwhelmingly passed the Resolution. Since the adoption of the Resolution by the House of Delegates in 2002, the pilot projects in the federal district court for the District of Oregon have come to fruition as a full-fledged case management electronic case filing process, based upon option- al participation. Approximately 30 percent of the documents filed in the federal district court are filed by electronic methods. The federal district court adopted rules to make electronic case filing mandatory effective September 1, 2006. In addition, TASK FORCE ON E-FILING REPORT • NOVEMBER 2006 1 the United States Bankruptcy Court for the District of Oregon has become a full elec- tronic filing court from the initiation of cases throughout the life of the cases, using an electronic case management system. This system has completely done away with the maintenance of paper files. Filing is mandatory by electronic means for most par- ticipants, with the exception of pro se litigants. In February 2004, former Chief Justice Wallace P. Carson, Jr. appointed a special task force on future technology in the Oregon courts to provide the Chief Justice and state court administrators with updated, strategic planning and recommendations for the future direction of the Oregon Judicial Department's technology systems and strategies. The task force contracted with MTG Management Consultants, LLC, of Seattle, Washington, to provide consulting services to assist with justice system tech- nology planning. With this backdrop, in late 2004, then Oregon State Bar President William Carter conceived of the formation of an electronic filing task force to explore the feasibili- ty of electronic filing in the state courts of Oregon. In February 2005, the Oregon State Bar Board of Governors formed the state e-fil- ing task force to be chaired by Mark B. Comstock, a Board of Governors member. The Board named the following members to the task force: Jim Adams, Jackson County Circuit Court Trial Court Administrator; Doug Bray, Multnomah County Circuit Court Trial Court Administrator; Bruce Hamlin, practitioner, Portland; the Honorable Paul Lipscomb, Circuit Judge, Marion County; Debra Velure, practitioner, Portland; Carl Ward, Chief Information Officer, Oregon Judicial Department; Jeff Barlow, Oregon Judicial Department Information Technology Division E-filing Manager; Andy de Gues, Oregon Judicial Department Information Technology Division, Senior Project Manager; Val Paulson, Klamath County Trial Court Administrator; R. David Butler III, practitioner, Vale, Oregon; Tamara MacLeod, prac- titioner, Bend, Oregon; and the Honorable Lauren Holland, Circuit Judge, Lane County. Judge Lipscomb actively participated in the e-filing task force, although his atten- tions were diverted when the Marion County Courthouse suffered a catastrophic event, which caused the relocation of all court facilities to other locations in Marion County. Judge Lauren Holland was named to the task force in May 2006 to assist the task force in coordinating proposed legislation with the Council on Court Procedures, of which Judge Holland is a member. Richard Vandiver, a retired former staffer for the Oregon Judicial Department Court Research and Services Division, served as staff to the task force. Task Force members Carl Ward and Jeff Barlow actively participated until Spring 2006, when each was lured by other employment offers to leave the Oregon Judicial Department (OJD). R. David Butler III, although named to the Task Force, did not participate. Member Tamara MacLeod participated until fall 2005 when the pres- sures of a busy practice required her attentions elsewhere. 2 TASKFORCEONE-FILING REPORT • NOVEMBER 2006 SCOPE OF STUDY Scope of Task Force Study At its first meeting in February 2005, the task force discussed the scope of its work. At the first meeting, it became clear to the task force that there was a need to address the interaction between the Oregon Judicial Department (OJD), which has the statutory obligations to manage the state court system, and practitioners of the Oregon State Bar. The task force charge was to investigate the feasibility of recommending an elec- tronic filing system in the state courts of Oregon. This scope was limited to eight areas. 1.A review of the Oregon state courts in relation to their technology and the feasibility of an electronic filing environment; 2.A review of the federal court electronic filing and case management system and its use in the District of Oregon; 3.A review of electronic filing and electronic case management systems avail- able in the market; 4.A review of what other states and courts have initiated in the area of elec- tronic filing and electronic case management systems; 5.A survey of Bar members to determine interest in an electronic filing system; 6.A survey and possible preparation of electronic filing system rules for prac- tice; 7.A review of necessary legislative changes and civil practice rule changes to initiate a move towards an electronic filing system and electronic case man- agement system; and, 8.Recommendations for funding the creation of an electronic filing system, if it was determined to be feasible for Oregon state courts. Methodology The methodology used by the task force was three-fold. First, the task force consid- ered the state court perspective. The task force included members involved in all facets of the operation of the OJD, including circuit judges, trial court administra- tors, Information Technology Division personnel, and practitioners. This enabled the e-filing task force to have a detailed view of the operation of the state courts and what is essential for their operation. Second, the task force considered the federal court perspective. The task force had experienced practitioners in the Oregon federal court systems, both United States District Court and the United States Bankruptcy Court, as members, and had other practitioners available for assistance. The task force also invited and received pre- TASK FORCE ON E-FILING REPORT • NOVEMBER 2006 3 sentations from the federal district court clerk's office and from judicial officers of the federal district court and United States Bankruptcy Court. Third, the task force considered other sources of information. The task force invited and received presentations from four different media vendors with four different types of electronic filing and electronic content management solutions available to courts. In addition, the task force invited and received presentations from personnel from other state trial courts that have recently initiated electronic filing and elec- tronic content management systems. Members of the task force also reviewed national initiatives and publications from national sources. The work group met 12 times in various areas of the state. The task force worked mostly as a committee of the whole, although rules and legislation were each draft- ed by different subcommittees for consideration by the task force. The task force also utilized the services of the Oregon State Bar in surveying mem- bers of the Bar to determine their interest in the pursuit of an electronic filing case management system and how it would have an impact on the various types of users. At the request of the task force, staff of the Oregon State Bar sent a survey to 540 active members of the Bar. Those surveyed were diverse in geography of res- idence, age, and practice-type, and comprised a statistically significant sample of the active Bar. The survey sought input specific to the charge of the task force to help the task force design a recommendation to the Board of Bar Governors. WHAT IS ELECTRONIC FILING As used in this report and by the task force, electronic filing is defined as the initia- tion of the filing of pleadings in the court over the Internet. It is not transmitting by fax or delivering paper documents to the clerk's office for scanning and creation of an electronic image. Currently, the filing of a case or pleading involves the following steps: a practition- er (1) prints a physical document in the office, (2) signs the document, and (3) delivers a physical document to the clerk's office with payment of the filing fee.