Specifies courts and types of actions in which pilot programs will be authorized to permit use of electronic means to commence an action or special proceeding

This measure would effectuate a further expansion of the use of elec- tronic means for the filing of certain papers in judicial proceedings ("e-filing"). First authorized by the Legislature as a pilot project 12 years ago for civil cases in Supreme Court in certain counties, see L. 1999, c. 367, over the next decade the Legislature revisited the exper- iment several times, expanded case categories and venues in which e-fil- ing could be used on a voluntary basis, and repeatedly extended sunsets for the program. In 2009, on the program's 10th anniversary, the Legis- lature made the voluntary e-filing program permanent while, for the first time, authorizing a pilot program in mandatory e-filing in certain case types and venues, subject to automatic opt-outs for pro se liti- gants and for attorneys without the equipment or technical wherewithal to participate in the program. See L. 2009, c. 416. Based partly on successful experience with the 2009 statute, in 2010 the Legislature further expanded mandatory e-filing to additional classes of civil proceedings in certain counties. See L. 2010, c. 528.

To date, the Legislature has authorized mandatory e-filing in commercial cases over $100,000 in New York and Westchester Counties; in tort cases in Westchester County; and in any class or classes of civil cases (other than CPLR Article 78 proceedings, Mental Hygiene Law Article 81 cases, matrimonial actions and Election Law proceedings) in Supreme Court in Livingston, Monroe, Rockland and Tompkins Counties. In practice, and in accordance with this authorization, mandatory e-filing is now opera- tional in New York, Westchester and Rockland Counties. In this measure, we seek a modest expansion of mandatory e- filing in Supreme Court civil cases, and introduction of mandatory e-filing in Surrogate's Court and the New York City Civil Court(1). We also seek legislative sanction to begin exploring introduction of e-filing in criminal and Family Courts.

Proposed e-filing expansion

The expansion of e-filing proposed in this measure is as follows:

Supreme Court, Civil

Proposal:

Mandatory e-filing may be required by the Chief Administrative Judge - for both commencement of actions and filing/service in pending actions - in any of the following: (i) commercial cases and other breaches of contract without regard to the amount of damages sought in the counties of New York City; (ii) tort cases in the counties of New York City; and (iii) one or more classes of cases in Livingston, Monroe, Rockland, Tompkins, Allegany, Essex, Onondaga and Westchester Counties, subject to exceptions for CPLR Article 78, MHL Article 81, matrimonial and Election Law proceedings. The Chief Administrative Judge must consult with the bar and get the approval of the local County Clerk before mandatory e-filing may be implemented in counties outside New York City.

Surrogate's Court

Proposal:

Mandatory e-filing may be required by the Chief Administrative Judge - for both commencement of actions and filing/service in pending actions - in Surrogate' s Court in any county and in any class of cases (at pres- ent, consensual e-filing is authorized in Surrogate's Court throughout the State). The Chief Administrative Judge must consult with the bar of a county before mandatory e-filing is required in Surrogate's Court in such county.

New York City Civil Court

Proposal:

Mandatory e-filing may be required by the Chief Administrative Judge - for both commencement of actions and filing/service in pending actions - in no-fault medical provider cases (at present, e-filing is permitted in such cases but only upon consent).

SAFEGUARDS

While we here describe it as "mandatory e-filing"(2), the new e-filing programs sought in this measure nonetheless have strong built-in safe- guards to insure that no litigant or lawyer can be prejudiced for lack of the equipment or technical understanding needed to e-file. These safeguards are the same as those established as part of the limited Supreme Court civil mandatory e-filing program authorized by chapter 416 of the Laws of 2009 and expanded by chapter 528 of the Laws of2010. Specifically, any pro se litigant in any class of cases in any court in which mandatory e-filing is established is entitled to claim an absolute exemption from having to e-file. No court approval is required. All the litigant need do to secure the exemption is to indicate on a short form

to be filed with the court that he or she chooses to opt out of e-fil- ing. Similarly, any attorney in any class of cases in any court in which mandatory e-filing is established is automatically (i.e., with no court approval required) entitled to claim an absolute exemption from having to e-file provided he or she lacks the requisite computer skills or equipment; and he or she so indicates on a form filed with the court. Where a party or lawyer opts-out of e- filing, he or she files papers with the court and exchanges papers with his or her adversaries by the traditional hard copy means.

To provide further assurance that the mandatory e-filing pilots estab- lished by this measure go forward efficiently and without jeopardizing the rights of any parties to litigation, the measure requires that the Chief Administrative Judge consult with affected stakeholders before putting any pilot into effect. The measure continues the existing requirement that the Chief Administrative Judge maintain an advisory committee at least one-half of whose members are County Clerks to assist her in the implementation of mandatory e- filing programs in civil parts in Supreme Court; and further directs that the Chief Administrative Judge create additional advisory committees to assist her in implement- ing e-filing in Surrogate's Court and the New York City Civil Court. Finally, as was required by the Legislature as part of the first rollout of mandatory e- filing in Supreme Court civil cases in 2009 and 2010, no mandatory e-filing in civil cases in Supreme Court may go forward in any county outside New York City without the agreement of its County Clerk. This requirement is continued and will apply to mandatory e- filing in all of the new counties authorized by this measure as well.

The Chief Administrative Judge's current duty to report to the Legisla- ture, the Governor and the Chief Judge on the e-filing program (i.e, on April 1, 2011 and every April 1st thereafter) would be continued and, in the preparation of such report, the Chief Administrative Judge must continue to be required to consult with the County Clerk. in each county in which an e-filing program is implemented for Supreme Court civil cases. Also, all mandatory e-filing programs, existing and newly-pro- posed, would remain subject to sunset - on September 1, 2015.

Lastly, the measure would direct the Chief Administrative Judge to establish advisory committees to study the potential use of e-filing in criminal and Family Courts. With the assistance of these committees, the Chief Administrative Judge is directed to report findings to the Governor, the Legislature and the Chief Judge of the State by January 1, 2012 and to recommend appropriate legislation.

Summary

As described above, this measure would modestly enlarge the mandatory e-filing pilot in civil cases in Supreme Court. It also would extend the significant programmatic benefits of mandatory e-filing to cases in Surrogate's Court and a limited class of cases (i.e, no-fault cases involving medical providers) in the New York City Civil Court. E-filing in such cases would inure to the benefit of bench, bar and the litigat-

ing public, and promote the administration of justice at a time when all levels of government, particularly the Judiciary, are striving to do more with less. At the same time, this measure would continue New York's longstanding assurance that nothing in the e-filing programn either voluntary nor mandatory - would impair the substantive rights of any party, with the benefit of the Judiciary's and the bar's now 12 years of experience with exemptions and protections to guarantee access to justice compatibly with technological modernity. Finally, this measure would explore the feasibility of extending e-filing to other courts where it has not yet been applied.

This measure, which would have no fiscal impact, would take effect imme- diately.

2011 LEGISLATIVE HISTORY:

Senate 5635-A (Bonacic) [Judiciary] Assembly 8368 (M. of A. Weinstein) [PASSED]

Footnotes

(1) The very positive experience in New York to date in the use of e-filing in civil actions in Supreme Court is well-documented in the Chief Administrative Judge's recent report to the Governor, the Chief Judge and the Legislature. A copy of this report ("e-Filing in the New York State Courts, June 2011") has been delivered to each member of the Legislature. The report also is available for viewing on line at www.courts.state.ny.us under "What's New".

(2) In the text of the legislation, the term "mandatory e-filing" is not used. Instead, the legislation speaks of the Chief Administrative Judge "eliminat[ing] the requirement of consent to participation in the [e-filing] program." This is to distinguish cases in which e-filing will be necessary from e-filing as it has largely operated since its inception, i.e., as a voluntary program.