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The Future of Hard Copy Court Records and E-Filing

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The Future of Hard Copy Court Records and E-Filing

Postby TenantNet » Mon Jul 20, 2015 9:39 am

The Future of Hard Copy Court Records and E-Filing
Thomas F. Gleason, New York Law Journal
July 20, 2015

In this second half of the second decade of this millennium, consider the implications of two CPLR proposals awaiting action on the governor's desk. The first[1] would enact a new CPLR Article 21-A and broadly expand electronic filing of court papers, and the second[2] would amend CPLR 2103, so that hard copy service of interlocutory papers can be made by mail from other states within the United States.

These amendments constitute a minor tweak for interlocutory service of hard-copy papers, and a major overhaul of the e-filing system. Both types of media (paper and electronic) remain essential to New York practice, but the scope of the e-filing initiative is the clearest sign in years that the hard copy age is nearly over.

The 16-Year Experiment

New York's long experiment with e-filing (since 1999)[3] reflected the Legislature's concern that not all practitioners (or pro se parties) had the capacity to use an Internet filing system, and that the sheer breadth and complexity of New York court business made any precipitous push for e-filing risky.

The initial program introduced the now well-established "written consent" of all parties requirement, and the Legislature even included a sunset clause that caused the initiative to "expire July 1, 2002."[4] The evolution of the e-filing rules, which for the program in its present form are contained in Uniform Rules 202.5-b and 202.5-bb, also reflect this conservatism. A limited mandatory e-filing program in a few counties for limited types of cases was not authorized until 2009.

The Proposed Expansion

The 2015 e-filing bill is broad, affecting not only civil cases, but also criminal, family court and surrogate's court proceedings. Insofar as relevant to CPLR practice, the pending bill allows the chief administrator (chief administrative judge) to significantly expand mandatory civil case e-filing, and to promulgate rules that will "eliminate the requirement of consent" in the current statutes and rules.

But though broad, this rulemaking power is limited. Subdivision (b)(2) is the part of the new CPLR 2111 that permits new rules to do away with the consent in certain cases, but the empowerment follows some fairly strong language in subdivision (b)(1): "[e]xcept as otherwise provided in paragraph two of this subdivision, participation in this [e-filing] program shall be strictly voluntary, and will take place only upon consent of all parties in the action or special proceeding."

Subdivision (b)(1) also states that one party's failure to consent shall not bar the other consenting parties from using electronic filing and service, and that where authorized the consent of all parties is not required for electronic commencement. But after these liberalizing clauses the Legislature adds, for apparent emphasis: "No party shall be compelled, directly or indirectly to participate in e-filing." This language appears superfluous after the "strictly voluntary" phrase quoted above, and perhaps should be read as an indicator that there was a lot of negotiation, after which the Legislature wanted to make clear its expectation that eliminating consent to e-filing be done with care.

New Advisory Committee

Other provisions of the bill would amend section 212 of the Judiciary Law to require the chief administrator to report on a yearly basis to the Legislature, the governor and the chief judge on many particulars of the "state's experience" with electronic filing and the electronic service of court papers.

The chief administrator also must maintain an "advisory committee" whose membership must include representatives of the bar, not-for-profit legal service providers, Article 18-B attorneys and others. The bill provides that no fewer than half of the members of the advisory committee be recommended by the New York State Association of County Clerks.

The chief administrator is not authorized to eliminate the consent requirement in any county until after consultation with the bar associations and other groups in that county (groups of the type represented on the mandated state-wide advisory committee). The chief administrator also must solicit and obtain written comments on the impact of eliminating consent to e-filing, and obtain the agreement of the County Clerk before eliminating the consent requirement in a particular county.

The bill recognizes that some state-law cases currently are not practical for e-filing, due to confidentiality, time exigencies or for technical reasons. The bill excludes from the permissible mandatory e-filing: matrimonial, election law, mental hygiene, habeas corpus, consumer credit actions or proceedings and other types of cases. Interestingly, it appears that Article 78 proceedings also are not to be mandatory e-filing cases. That said, the breadth of mandatory e-filing will certainly expand e-filing under the CPLR, if the bill is signed by the governor.

Other Details of the Bill

Where the chief administrator does eliminate the requirement of consent to e-filing, the rules must provide counsel an opportunity to opt out of e-filing, via a prescribed form to be filed with the clerk. That form will allow opting out by attorneys who can certify in good faith that they lack the computer facilities or requisite knowledge to file papers over the Internet. The ranks of the technical illiterati may be shrinking, but the Legislature assumes they have not thinned to zero.

The bill will allow (in permitted cases) the e-filing of the two major time-sensitive documents—the action-initiating papers and notices of appeal. This is a major advantage, as the proper use of the e-filing system will provide the filing user with immediate confirmation of these critical jurisdictional acts.

The bill promotes e-filing in the Appellate Division, by empowering each judicial department to promulgate their own rules for e-filing motions, records and briefs. As with the provisions empowering the chief administrator's rulemaking, the Appellate Division also will limit e-filing in some categories of cases, and provide a certification opt-out procedure. The bill requires that to the extent practicable the rules in each judicial department must be uniform.

Out-of-State Mail Service

In marked contrast to the new e-filing bill, the proposed bill liberalizing out-of-state interlocutory service is so straightforward that it harkens to simpler times—when paper was the sole medium of expression. Paper practice still had its share of procedural missteps, but the mistakes seemed more basic and the cures easier.

Consider the case in which counsel did not realize that mail service under CPLR 2103 means a deposit of the paper into the exclusive custody of the U.S. Postal Service "within the state," meaning that a New Jersey mailbox won't do.[5] If the amendment to CPLR 2103(f)(1) is signed by the governor, interlocutory mail service will be possible from any post office or "official depository" of the Postal Service within the United States.

The proposed bill also amends CPLR 2103(b)(2) so that any time limit measured from the time of service of the paper will be extended by six days, if the mail service is done in any other state except New York. (If mail service is made in New York, the time limit will be extended by five days, as under present law). A six-day automatic extension is so different from the demands of the email barrage in the rest of our practice!

The Future of E-Filing

These two bills are stopping points on the path away from paper. e-filing, and service may raise different risks from paper practice, including the terror of a "glitch" that interferes with a filing or receipt,[6] but such risks are manageable and far outweighed by the file security, lower cost and ease of access of electronic records. For the budget-pressed courts and clerks, there is no real choice.

New York is not even close to the digital conversion accomplished by the federal courts, but this has never been surprising with the far greater volume and case diversity in the Unified Court System. But the new bill is a major step forward, and the most comprehensive and impressive foray into digitizing New York court business to date. It offers a glimpse into the near and foreseeable future, in which New York courts and lawyers will adopt a fully digital practice.


1. S5833; A8083. The bill also broadens the use of e-filing in criminal, family court and Court of Claims cases, including appeals.

2. S4845; A6264.

3. New York's pilot e-filing program, then known as "filing by electronic means" was enacted in Chapter 367 L 1999.

4. See Section 10 of Chapter 367 of the Laws of 1999. As of July 1, 2002, this section also provided that the e-filing authorization "shall be deemed repealed."

5. M Entertainment v. Leydier, (2009, 62 A.D.3d 627, 880 N.Y.S.2d 40 [1st Dept.], rev'd 13 N.Y.3d 827, 919 N.E.2d 177, 891 N.Y.S.2d 6 [2009]). In M Entertainment, the First Department held this out-of-state mailing, even if timely, to be a "fatal" jurisdictional defect. The Court of Appeals reversed and saved the appeal because the "taking" of an appeal under CPLR 5515 is accomplished by two acts—service and filing. If at least one of those acts is performed in time, the court has discretion to allow correction of the defect, pursuant to CPLR 5520(a).

6. See, for example, an interesting, non-fatal e-filing mistake in Grskovic v. Holmes, 111 A.D.3d 234, 972 N.Y.S.2d 650 (2d Dept. 2013).

Thomas F. Gleason is a member of Gleason, Dunn, Walsh & O'Shea, in Albany and an adjunct professor at Albany Law School.
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