Tuesday, October 22, 2013

e-Filing comes to San Francisco, hopefully without Jim Crow laws

Filing court papers online (termed as "e-filing") is a very useful feature. It was implemented already 10 years ago in the Federal courts, through the so called ECF/Pacer system. The efficiency of ECF/Pacer was recently put on the test, during the Federal Government's shutdown, allowing the courts to remain functional. In his address to the bar, Chief Judge Jaroslovsky commented that he would be writing a much different letter, should no eFiling system be in place at the time of the government's closure.

[UPDATE 11-5-14] 3 vendors are finally approved for the SF Court, in addition to the previously approved sole provider "File & Serve Xpress." Given the e-filing becomes mandatory in this court starting December 8, it's about time to get the providers on board.

[UPDATE 7-24-14] The voluntary e-filing became available on almost all kinds of cases, and I have personally successfully filed my first document through this system today.

[UPDATE 1-27-14] The "mandatory" e-filing is changed to "voluntary," while the second provider is getting up and running. New estimate for mandatory e-filing's cut-off date is June 30, 2014.

[UPDATE 1-6-14] San Francisco Court moves forward with one vendor and announces an additional vendor selected "through a competitive process." Competitor's name is not yet disclosed. Expansion of the mandatory e-filing kicks in on January 27, 2014.

E-filing started being implemented in California state courts many years ago too, now turning to a mandatory requirement, commencing with the court of Orange County, a pilot program, which went live on January 1, 2013. Note that there are several vendors approved to provide the e-filing service. As of the time of writing this post, 10 companies are officially advertised on the court's page.

The pilot program ought to be successful, as the implementation of filing electronically now rolls out in other state courts, including the San Francisco county one. The success if the e-filing is not universally admitted, there is a counter-argument over the system's cost, and at least two courts (Los Angeles and Sacramento) have earlier rejected this proposal, but they seem to have it now (LASAC), and the service does come to SF.

San Francisco Court proposed new Local Rules, effective January 1, 2014, mandating that the documents in several types of cases to be filed electronically. See, page 5, Rule 2.10, as an example. It looks benign on its face, providing procedure for the Vendor's approval by the court and litigants' interaction with the Vendor (a company, which will be doing the actual filing, for a fee*). There is a potential problem however: only one approved vendor. See this instruction for e-filing of trust cases for example: "File & ServeXpress (formerly LexisNexis), which has served as the court’s e-filing vendor for more than 14 years in asbestos and complex litigation matters, will serve as the vendor for the expansion of the program into Probate matters." Asbestos cases? The same and still the only vendor.

While the court's news releases suggest there was a call for bids from potential contractors, it is hard to imagine that only a single vendor submitted a bid on such lucrative business as being a filing conduit for one of the busiest courts of this state. And even if the bidding were in place, it does not secure competitiveness of the court access by itsef: the court may still elect a single winner. At least the court's rules imply so, by using a singular form of the "Vendor" term.

Still, the local SF companies I currently use for my filings say they were never informed about the court's solicitation for bids; they would definitely submit a proposal. They would be even compelled to bid, because it means to close their doors otherwise: if the mandatory e-filing comes live on January 1 and these companies are not the ones who offer to e-file, they will have no more product to sell, outside of mere service of process. And even that will come down to service of only the initial summons and complaint.

But this is not just the servers' problem. We, as the consumers, may have our own concerns: what if I don't want to use this particular vendor for my filings, or, better, what if I can't? It is one thing when the only available vendor for e-filing is an option; it is quite another when going to that vendor is mandatory. I.e., imagine a scenario, where this sole vendor is sued--will that vendor's adversary file her papers with the court through the same vendor? What if this vendor's business customs don't match mine? What if this vendor shuts down, or gets a security leak, or its personnel goes on strike?

The list of potential scenarios can go on, but the necessity of retaining our freedom of choice is obvious.  There can be no private monopoly over court's access. This would otherwise be akin to the Jim Crow cases, where people were charged for, or in some other way deferred from, a chance to cast their votes. The due process seems to be no longer "due," if I am forced to use one particular gate to enter the Justice chambers. This situation is not the same with the Federal courts, which are all connected through one PACER website, because PACER is a government system, not a private company. Everyone has an equal access to it, and there are no vendors standing between the PACER and the litigants, it is a public service with a government-provided public access.

The San Francisco Court seeks public comment on this proposal through November 1, 2013. Comments must be received, in writing, on or before that day. Direct your comments to "T. Michael Yuen, Court Executive Officer, San Francisco Superior Court, 400 McAllister Street, Room 205, San Francisco, CA 94102." Don't miss on this opportunity to participate.

* I don't see the requirement to pay for the filing service as a problem itself. Unlike the voting cases, an alternative remains here for the indigent litigants, and for the rest of us it will be cheaper to file online vs. going on a trip to the court to file personally. But, having a sole monopolistic vendor certainly contains an inherited risk of the prices charged without the usual hold of market competiton.

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