Continues and expands New York's program for use of electronic means for filing certain papers in civil litigation in supreme court and other courts

This measure is a chapter amendment to effectuate several minor changes in legislation enacted last session to continue and expand the State's program in the use of electronic means for the filing of certain papers in civil litigation in Supreme Court and other courts ("electronic filing" or "e-filing"). See L. 2009, c. 416.

Eleven years ago, New York instituted an experiment in the use of e-filing. The experiment permitted e-filing in a few categories of cases in Supreme Court and in a few venues, included a requirement for the consent of the parties, and was set to expire in approximately three years. See L. 1999, c. 367. Over the ensuing decade, the State revisited this experiment several times, expanding the case categories and venues in which it could be used, expanding its availability to cases in the Surrogate's Courts and the Court of Claims, and continuing its experimental character by providing for a series of sunsets.

Last year, the Legislature enacted chapter 416 as a major expansion of the e-filing program. As part of this expansion, the Legislature removed e-filing from the ranks of an experiment and gave it permanent status. It also eliminated restrictions on the categories of cases and venues in which e-filing might be used, permitting its use statewide in Supreme Court, Surrogate's Court and the Court of Claims. While chapter 416 did not eliminate the requirement that parties consent to use of e-filing in individual cases, it did institute a limited program of mandatory e-filing in Supreme Court in certain commercial cases in New York County, in tort cases in Westchester County, and in certain cases in one other upstate county (to be designated by the Chief Administrative Judge).

As we have begun to go forward and implement the provisions of chapter 416, we recognize that we can ensure a more effective e-filing program with five minor changes in the legislation. They include:

* addition of a requirement that the Chief Administrative Judge consult with the affected County Clerk before instituting any consensual program of e-filing in a county. Omission of this requirement was an oversight in chapter 416.

* in place of the statutory provision permitting the Chief Administrative Judge to select an upstate county for participation in the mandatory e-filing program, authorization for her to designate four specific upstate counties - Livingston, Monroe, Rockland and Tompkins - to participate in that program. These four counties and their local Bar Associations have indicated a strong wish to be included in the mandatory e-filing pilot. Relatedly, we also propose that mandatory e-filing be expanded in Westchester County to include the same classes of commercial cases as are authorized for e-filing in New York County, besides tort cases.

* addition of a requirement that, before instituting mandatory e-filing in any venue, the Chief Administrative Judge must consult with the local County Clerk; and, before instituting mandatory e-filing in the four identified upstate venues, the Chief Administrative Judge must secure the agreement of the local County Clerk. This change will ensure that counties are well-prepared to meet the demands generated by mandatory e-filing.

* addition of a requirement that the Chief Administrative Judge establish an advisory committee, to be comprised of both court system personnel and County Clerks, to assist him or her in implementing the e-filing legislation generally. This change is intended to ensure that the e-filing program goes forward as a truly collaborative exercise; and that it remains continually subject to critical review.

* modification of the reporting requirement set out in chapter 416 to obligate the Chief Administrative Judge to furnish an annual report on the e-filing program, commencing 4/1/11; and particularly to invite the Chief Administrative Judge, in each such annual report, to make recommendations, as appropriate, for expansion of the mandatory e-filing program. We point out that there likely are other counties - besides the four to be added by this measure to the mandatory e-filing program - that are now, or soon can be, ready for a meaningful test of mandatory e-filing; and it is our hope that, after a year or so of successful experience with the program in the pilot counties, and with strong local support for expansion into other counties, the latter can be permitted to join the program (subject, of course, to a continuing requirement that there be no expansion of the mandatory program without the agreement of any county clerk in an affected county).

Beyond these changes, this measure also clarifies that statutory authorization for use of fax transmission as a means of filing papers (another feature of the early e-filing program) should be limited to papers in the Court of Claims. This will conform the statute to the practice and to need as it has been demonstrated over time.

Finally, recognizing that the Legislature last year gave permanent status to the consensual e-filing program and that New York's program

authorizing use of credit cards to pay court fees and other court obligations has, for over 20 years, produced significant efficiencies and accelerated revenue collection, this measure similarly gives permanent status to present authority (now scheduled to expire August 9th of this year) for such use of credit cards.

This measure, which would take effect retroactively to 9/1/09, would have no fiscal impact.

2010 LEGISLATIVE HISTORY: OCA 2010-85 Senate 7806 (Schneiderman) [adv to 3rd Rdg] OCA 2010-84 Assembly 10987-A (Weinstein) [recom to Jud]