Posted: April 3, 2012
Code of Judicial Administration
CJA 03-0301. Court administrators. Amend. Modifies responsibilities to reflect duties.
CJA 03-0410. Automated information resource management. Amend. Modifies responsibilities to reflect duties.
CJA 04-0202.08. Fees for records, information, and services. Amend. Establishes a fee of $5.00 to email a document. Prohibits the court from emailing a document available on Xchange.
CJA 04-0501. Expedited jury trial. New. Implements the pilot program as directed by HB 349 (2011) and HB 204 (2012).
CJA 04-0502. Expedited procedures for resolving discovery issues. Renumber 10-1-306 and 10-1-406 and amend. Describes a process for resolving discovery disputes quickly to minimize the impact on time to complete discovery.
CJA 04-0503. Mandatory electronic filing. New. Requires that documents in district court civil cases be filed electronically effective January 1, 2013. Provides for exceptions.
The present cost for filing by email is unreasonable. Presently, paper filings are free. If the cost of filing by email is the same–free, then the rule would be fine. Court fees have recently skyrocketed, which should encompass all of the cost from any mandatory filing. There is no reason to create an additional financial burden here.
$5 seems high to send an e-mail. Sending an e-mail costs the court less than making copies and mailing them. Sending an e-mail takes less time than making copies and mailing them. For example, for a 4 page document, it would cost $1.44 ($.25 x 4 pages + $.44 stamp), whereas to send it by e-mail would cost $5.
Re: CJA 04-0202.08. Fees for records, information, and services.
The description of this rule amendment indicates that the court will be *prohibited* from emailing documents available on Xchange. (The actual wording in the rule is slightly less draconion.) However, left unclear is whether a document’s availability on Xchange is dependent on a user’s subscription to that service. All Public documents that have been imaged are technically “available” on Xchange, but a subscription to Xchange costs $25 (and then $30 per month). For the average non-subscribing member of the public, this would raise the fee for electronic access to a particular document at least fivefold, if the intent of this rule change is to instruct courts not to email any imaged Public documents.
I hope that a single-document purchase mechanism (without monthly subscription) will be made available on Xchange in the future. However, in the interim, I would request a clarification to the language of this rule to indicate that if a particular user does not have a subscription to Xchange, that means the document is not “available” to that user via Xchange.
Re: Proposed CJA04-0503: Shouldn’t this include sealed filings as an exception?
I object to the proposed adoption of Code of Judicial Administration (“CJA”) 04-0503, which seeks to make electronic filing in district court cases mandatory effective January 1, 2013. I object on the following grounds.
(1) Many, many documents filed in a significant number of district court cases are substantial enough in size to blow past 10 megabytes of aggregate data. THAT IS A SERIOUS PROBLEM. Microsoft Outlook and many OTHER electronic filing interface programs PROHIBIT the sending of any file that exceeds 10 megabytes of data. Hence, counsel may well find themselves UNABLE to file a considerable number of documents due to this inherent and rather pervasive 10 megabyte file size prohibition.
(2) Computers seem to create an increasingly great number of glitches, code errors, and IT snafus. Electronic filing is no exception to this trend. I foresee numerous and sundry computer problems and filing discrepancies inherent to a system as busy as mandatory an electronic filing in Utah’s major districts. Filing hard copy documents proves problematic enough; I fervently assert that electronic filing will make hard copy filing look easy and streamlined by comparison.
(3) Forcing counsel to file electronically seems to circumvent the ability of counsel to practice law without undue interference and oppression from the state. Counsel should have an OPTION to file electronically… not an order.
(4) Should counsel have the OPTION to file electronically and after a year or so of treating the electronic filling option as a BETA version (i.e., live testing version): (a) if those that elect to do so represent a 75% or more total of filings, and (b) the BETA electronic filing system performs with minimal glitches – THEN it would seem appropriate to require electronic filing.
(5) Force-feeding a non-live tested system that would significantly alter the venerable practice of law in Utah seems beyond reason or logic.
I implore the state to alter CJA 04-503 to run electronic filing as at least a one-year BETA version and as an option for at least one year to determine the viability and efficacy of requiring all practitioners to adhere to the system.
Respectfully,
J. Adam White
Utah Bar No. 11853
Re: Rule 4-502
The procedure and objectives of subsection (2) are a little unclear, especially as it relates to motions under Utah R. Civ. P. 37. Given that the Statement of Discovery Issues is to be filed before a motion under Rule 37 may be filed, it is unclear whether Rule 37 applies to relief requested under this subsection. Do the provisions for sanctions in 37(d) apply to Statements of Discovery Issues? Is failure to comply with an order procured under subsection (2) sanctionable under Rule 37(e)? I cannot see how this rule would not entirely replace the procedures of Rule 37(a)(3) & (b), especially as subsection (2)(F) of the proposed rule contemplates the possibility of ordering further briefing as the judge sees fit (which means that the briefing requirements would be defined by the judge rather than the rule). It seems that Rule 37(a)(3) and (b) will become redundant. Rather than having this rule in the UCJA (where it is also likely to be overlooked), the better course of action may be to incorporate the procedures of subsection 2 into Rule 37.
Notes on style and drafting:
Subsection (1) slips into imperative mood. Consider amending the second sentence to “Parties should contact one of the judicial assistants for the assigned judge for specific questions,” or omitting the first two sentences entirely.
In Line 16, consider replacing “; and” with “.”
In Lines 21-22, consider taking the Rules out of parentheses and inserting the word “under” before the rules.
It may be clearer if the language about certifying conferring in good faith in Lines 27-29 were made into one of the requirements listed in (2)(B)(i)-(iv).
It seems more logical to incorporate subsection (4) into Rule 5-510.05.
Consider incorporating Subsection (6) into Subsection (2), perhaps between (2)(B) and (2)(C).
Nathan Whittaker
Day Shell & Liljenquist, LC
The greenfiling system is much better than paper filing, but it’s not as good as the federal CM-ECF PACER system, which is more intuitive, more useful, and less expensive. If you insist on re-creating the wheel, why do it with an inferior design? Why not just contract with the federal provider of the CM-ECF? If the feds aren’t making the system available to states, why not just copy their better model?
I am in favor of making e-filing mandatory, the sooner the better. I believe the $5 per filing fee is expensive, especially when it is strongly recommended that documents related to the same filing be filed separately, i.e., a motion, supporting memorandum, and certificate of service might cost $15 to file. This is very expensive compared to the free service provided by the CM-ECF/PACER system. While greenfiling’s subscription price helps solve this problem for frequent filers, it is presumably subject to price hikes, and subscription may not be wise for less frequent filers. Also, it is curious why the court would charge attorneys to use a service that apparently saves money for the court. Perhaps the e-filing system could be paid for by requiring paper filers to pay a small filing fee. Fees should be used to create incentives to use the preferred system; currently the fee is likely limiting adoption of e-filing.
I recommend making it mandatory that all counsel accept service of documents via email. It is archaic and burdensome to be forced to print and mail documents that can be sent as PDF attachments to emails more quickly at less cost. If the recipient wants a paper copy, they should bear the time and expense to print. Again, the federal system has a smart, effective, tried and tested system in place. Why not follow their lead?
Re -0503 electronic filing:
E filing works well in the federal courts and has for some years. It saves time and money for both the courts and lawyers (hence parties). It should be extended to the state courts to the extent practicable. While current options add some costs to lawyers (GreenFiling is about $240 a year), that is offset by savings in postage, printing, copying, delivery fees. I have found the efiling system relatively simple and efficient – not quite as good as the federal system, but more than adequate.
Consideration should be given to making e-filing serve as notice and service to counsel, and to making service by electronic mail on counsel effective for all purposes.
The rule will need to address filings under seal (in whole or in part), but could follow the federal practice.
I think the file size limits are not significant — many programs for creating and managing PDF include a means to reduce file. The Courts will need to address signatures on electronic documents.
Electronic filing and service sound great (if there are default extensions for power outages and computer system gliches and failures). However, using the currently mandated intermediary service provider is rather inconvenient and costly. Accordingly, we have not been using it, even though I email many documents to attorneys for convenience and expedience. Now that documents can be converted to pdf for free– using any number of programs online or downloaded to one’s computer as a document printer that easily converts word processing and spreadsheet files, etc. to searchable pdf files for emailing–it seems there should be a simpler way for the attorney to either email the document to the court and other attorneys or to attach the file directly to the court file without having to pay for the intermediary service. My signature is scanned, so I can paste it into the document before converting the document to pdf, so I don’t use an electronic signature to sign the document. Because our copiers are also fast scanners, exhibits can be scanned and attached as pdf files as well, though not likely searchable when scanned (but I haven’t tried recently scanning for OCR).
Can attorneys be given rights to directly post their documents into Xchange, limited to the particular file in which each is appearing? I don’t know enough about Xchange to know how it works, but obviously someone is posting the scanned files there, so why not the attorney, with an individualized password for his or her bar number linked only to his or her files. Alternatively, could we just email the document to the court clerk(s) that will be responsible for adding the document to Xchange with return receipt as proof of filing? The latter would still be faster and less expensive than the current system of scanning and saving the paper files and attaching them to Xchange which the clerks are doing anyway.
Thanks for your consideration of these comments. Hopefully we can keep the process cheap/free and convenient for all.
P.S. can we please change the timing of the Plaintiff’s election for arbitration under Utah Code Ann. § 31A-22-321 contemporary with filing the complaint rather than before Rule 26 initial disclosures (perhaps an issue for the legislature)? The jury fee increase was significant for our defense clients who have to pay at the time of filing the Answer and Jury Demand. Many times the Plaintiff elects arbitration after the fee has been spent.
Thanks!
Proposed Rule 4-503, will mandate electronic filing in all civil cases. I am submitting this comment (1) to point out some issues with the proposed e-filing system and rule before e-filing is mandated, and (2) to ask that Utah R. Civ. P. 65C post-conviction cases be exempted until the e-filing is mandated in criminal cases.
Let me begin, though, by commending the move to electronic filing. I work for the Utah Attorney General=s Office in the Criminal Appeals Division. We file pleadings in every State district court. An e-filing system will ultimately prove a great boon to anyone who, like us, often practices out of the area in which they office.
My division has been e-filing pleadings in United States District Court since 2005. Based primarily on our experience with that system, we have noticed some omissions with the proposed state e-filing system that should be resolved before e-filing is mandated.
First, the system’s documentation is not current. The ATrial Court System Electronic Filing Guide@ on the Court website is dated November 3, 2008, and its content conflicts with information given in the current e-filing training.
Second, the system does not address filing documents that exceed the size limit, especially those that cannot be separated into smaller segments such as transcripts. The federal e-file system resolves this by requiring parties to conventionally file documents that exceed the maximum size available for a single document.
Third, the rule does not address filing things that cannot be submitted in PDF format, such as CDs, DVDs, VHS tapes, cassette tapes, and photographs.
Fourth, the rule does not address procedures for filing sealed or ex parte submissions to the Court. Parties often have to file protected material, such as medical or mental health records or reports. Similarly, while the present rule includes a redaction requirement for protected information, it does not address situations where the redaction in a document will be so extensive that the document will no longer make sense. Again, the federal courts accommodate this problem by requiring conventional filing.
I also request that the rule exempt Utah R. Civ. P. 65C cases from mandatory e-filing until the rules for e-filing in criminal cases are in place. Rule 65C cases are civil. But they are a civil action challenging a criminal conviction. As such, the filings include content from underlying criminal cases and even the original pleadings include content that is more akin to criminal filings than civil. This often includes protected materials. The provisions governing criminal e-filing will be more applicable to filing issues in rule 65C cases than the civil rules are.