Relates to service of papers by electronic means; eliminates requirement of consent in certain instances; repealer

The ten-year experiment with e-filing in New York, as well as the experience of the Federal courts(1) and the many other state court systems in which e-filing has been deployed(2), demonstrate that e-filing has become an essential tool for meeting the needs of litigants, the Bar, and the courts in a fair, efficient and cost-effective manner. E-filing lowers the cost of litigation, protects our environment, reduces the burden of litigation and makes it more convenient and expeditious, and promotes broader public access to records while preserving the privacy and integrity of those records.

After a beginning that was cautious and slow, the pace of e-filing utilization has increased exponentially - despite the limited number of venues and case types authorized for its use, and even with the constraint that participation in e-filing be on consent. We now have reached a point where the New York State Courts Electronic Filing System ("NYSCEF") is being used by a significant number of attorneys in a significant number of cases. The NYSCEF program has grown from 300 registered attorneys in 2002, to over 10,000 currently registered attorneys. As of the end of April 2009, almost 160,000 cases and almost 360 ,000 documents have been e-filed with the system.

The increased utilization of e-filing in New York, its implementation by other state court systems, its mandatory use by the federal courts in New York, and the widespread and growing support of e-filing by numerous bar groups, demonstrate that New York has outgrown its initial, tentative embrace of e-filing, and that we are now ready to move beyond a pilot program and to recognize e-filing as a permanent and integral part of our system of civil justice. It is important to take this step if our Judiciary is to meet the needs of litigants in the fairest, most efficient and most cost-effective manner possible. It is also critical that we do so to ensure that we have a modern and efficient system of justice that will help New York remain an attractive home to the business community worldwide.

We therefore propose that the Legislature revise the e-filing statutes, as follows:

* The pilot project status of e-filing should be ended and e-filing should become a permanent part of New York's civil justice system.

* There should be no immediate expansion of the present program; rather, the Chief Administrative Judge should be authorized to promulgate rules, with the approval of the Administrative Board of the Courts, expanding the program as warranted.

* E-filing should remain voluntary, except where the Chief Administrative Judge, after consultation with the Bar and with the approval of the Administrative Board of the Courts, promulgates a program of mandatory e-filing for certain actions in Supreme Court, as follows: (i) certain commercial cases in New York County; (ii) tort cases in Westchester County; and (iii) one or more classes of cases (excluding matrimonials, CPLR Article 78's, Election Law cases and cases under the Mental Hygiene Law) in one other county designated by the Chief Administrative Judge outside New York City.

* If the Chief Administrative Judge requires e-filing in any case type and in any county, the rules must automatically entitle a party to opt out of electronic filing upon filing a statement with the Court that the party is pro se or that the attorney for the party does not have the equipment needed to electronically file, or the expertise necessary to use that equipment and the Internet.

* The Chief Administrative Judge shall submit to the Legislature, the Governor, and the Chief Judge of the State a report evaluating the e-filing program by April 1, 2012.

* Authorization for a program of mandatory electronic filing shall expire on September 1, 2012.

This act shall take effect September 1,2009 and would have no meaningful fiscal impact on the State.

Legislative history

None. New measure.

Footnotes

(1) As of January 2009, the Case Management and Electronic Case Filing System ("ECS") is in use in 99/0 of the federal courts nationwide. All but one of 94 District Courts accept electronic filing of documents. All Federal District Courts in New York State have mandated electronic filing.

(2) According to the National Center for State Courts, as of 2007, 26 states had adopted court rules enabling e-filing either statewide or in at least one court. Matthias, E-Filing Expansion in State, Local, and Federal Courts - - 2007, National Center for State Courts, at 34. The website of the American Bar Association reports that there are statewide e-filing programs in place in 14 states, including California, New Jersey, Ohio, and Texas. www.abanet.org/tech/ltrc/research/efiling/home.html.

E-filing is available statewide in Delaware state courts in all major civil case categories, including cases in the Court of Chancery, the state's nationally-regarded business court, and in the state Supreme Court. Delaware is a major center for business litigation in this country, and thus, in a sense, a friendly competitor of New York State's Commercial Division of Supreme Court. Since its establishment in late 1995, the latter has been a great success and has contributed much to the reinvigoration of New York's historic role as an attractive venue for many of the Nation's major business interests.