Electronic Filing Service Provider Model Feasibility Report

Feasibility Report : Electronic Filing Service Provider Model
Commissioned by the Office of the Registrar, Supreme Court of Canada September 2002
Table of Contents
Preface ..............................................................................................................................................................................8
E-filing in Canada Comments on the E-filing Service Provider Model Daniel Poulin, Faculty of Law University of Montreal March 2002....................................................................................................................................................................12 1 2 3 Executive Summary..........................................................................................................................................13 Introduction........................................................................................................................................................15 E-filing service provider project...................................................................................................................19 3.1 3.2 3.3 4 A near-perfect model ..........................................................................................................................19 The players...........................................................................................................................................21 The electronic filing system...............................................................................................................25
Experiences in jurisdictions outside Canada.............................................................................................32 4.1 4.2 4.3 4.4 4.5 Electronic filing in the Federal Court of Australia.......................................................................33 Electronic filing in Singapore...........................................................................................................35 Electronic filing in United States federal courts............................................................................37 Electronic filing experiment in Toronto..........................................................................................43 Georgia Courts Automation Commission project.........................................................................45
Sample technical framework for electronic filing ....................................................................................57 5.1 5.2 5.3 5.4 5.5 5.6 5.7 5.8 5.9 5.10 5.11 5.12 5.13 5.14 EFM deployment.................................................................................................................................61 Transmission envelope.......................................................................................................................62 Court URL directory...........................................................................................................................62 Document formats ...............................................................................................................................62 Electronic signatures and encryption..............................................................................................62 Case Management System API .........................................................................................................63 Interface with court databases..........................................................................................................63 Court-initiated transactions..............................................................................................................64 Electronic service and notice............................................................................................................64 Payment mechanisms..........................................................................................................................64 Communication protocols..................................................................................................................64 Communication of court rules and policies....................................................................................65 Code sets and translations.................................................................................................................65 Compliance and certification............................................................................................................65
E-Filing Service Provider Model Feasibility Study
9/11/02
Issues.....................................................................................................................................................................67 6.1 6.2 6.3 6.4 6.5 6.6 6.7 6.8 Open technical standards..................................................................................................................68 Interoperability....................................................................................................................................77 Business model open market..........................................................................................................79 Business model private sector and ASPs.....................................................................................84 Role of service providers ...................................................................................................................86 Security and accessibility...................................................................................................................89 Transparency, openness, access to information and legal information services.....................90 Privacy..................................................................................................................................................92
7 8 9
Conclusion...........................................................................................................................................................96 Suggested approaches ......................................................................................................................................99 Bibliography.................................................................................................................................................... 101 9.1 Web sites and organizations........................................................................................................... 107
E-filing Service Provider Model Feasibility Study FINAL REPORT Dr. Elspeth Murray, Assistant Professor Queens School of Business March 2002................................................................................................................................................................. 108 1 2 3 4 Executive Summary....................................................................................................................................... 109 Purpose:............................................................................................................................................................ 111 Approach Undertaken:................................................................................................................................. 112 The single window E-Filing Service Provider (EFSP) Model ............................................................ 114 4.1 4.2 4.3 4.4 4.5 4.6 5 The Need............................................................................................................................................ 117 Standards........................................................................................................................................... 120 The Organization.............................................................................................................................. 122 Viable Business Model.................................................................................................................... 125 Effective Stakeholder Management............................................................................................... 126 Summary ............................................................................................................................................ 126
Stakeholder Analysis..................................................................................................................................... 128 5.1 5.2 5.3 Practitioners...................................................................................................................................... 128 The Judiciary.................................................................................................................................... 129 Court Administrations..................................................................................................................... 133
9/11/02
5.4 5.5 5.6 5.7 6
Politicians.......................................................................................................................................... 134 Public ................................................................................................................................................. 135 Private Sector Justice Service Providers..................................................................................... 135 OtherJurisdictions............................................................................................................................ 136
Review of Alternative Approaches ............................................................................................................ 138 6.1 6.2 6.3 Separate E-Filing............................................................................................................................. 140 EFSP................................................................................................................................................... 141 Public versus Private EFSP........................................................................................................... 143
7 8
Critical Issues and Risk Factors ................................................................................................................ 146 Summary Commentary................................................................................................................................ 150
The Courts In A Digital World: Building A Canadian Electronic Filing Marketplace James C. Middlemiss, LL.B. March 2002................................................................................................................................................................. 152 1 Executive Summary....................................................................................................................................... 153 1.1 1.2 1.3 1.4 1.5 2 How would it work?......................................................................................................................... 153 The Opportunities In An EFSP Model.......................................................................................... 155 The Challenges In An EFSP Model .............................................................................................. 156 Getting "Buy-In" From The Profession........................................................................................ 159 Recommendations............................................................................................................................ 161
Embarking Down The Electronic Filing Road ...................................................................................... 163 2.1 2.2 2.3 What Is An ASP? .............................................................................................................................. 163 The ASP Model In Canada............................................................................................................. 167 ASPs And The Legal Market.......................................................................................................... 168
The Single Window EFSP View................................................................................................................. 173 3.1 3.2 3.3 3.4 The EFSP Feedback: What People Are Saying .......................................................................... 176 Analyzing The Strengths Of E-Filing And The EFSP Model.................................................... 180 Analyzing The Weaknesses Of E-Filing And The EFSP Model ............................................... 182 Impact Of The EFSP Model On Practitioners............................................................................ 184
How Other Jurisdictions Manage E-filing Initiatives .......................................................................... 187 4.1 4.2 The U.S. Experience ........................................................................................................................ 187 The Ontario Experience.................................................................................................................. 191
9/11/02
4.3 5
The Need For A Single Window Standard................................................................................... 194
Critical Issues Challenging An EFSP Model.......................................................................................... 196 5.1 5.2 5.3 5.4 5.5 5.6 5.7 5.8 5.9 5.10 5.11 5.12 1. Privacy........................................................................................................................................... 196 Who Owns What In An E-Filing Environment?.......................................................................... 202 Stopping Hackers And Preventing Fraud.................................................................................... 204 Are Practitioners Ready For E-filing?......................................................................................... 206 Lawyer "Buy-In"............................................................................................................................... 207 Lack Of Court Information Systems.............................................................................................. 208 The Printing Conundrum................................................................................................................ 209 Cost-Benefit Concerns..................................................................................................................... 210 Will E-filing Impede Access To Justice Of pro se Litigants? ................................................... 214 Has The Supreme Court Selected The Right Partners?............................................................. 214 LegalXML.......................................................................................................................................... 218 Other, Less Critical, Issues ............................................................................................................ 220
Conclusions And Recommendations......................................................................................................... 225 6.1 Recommendations............................................................................................................................ 228
E-Filing for the courts in Canada (an idea whose time has come): A response to a discussion paper published by the Supreme Court of Canada recommending strategies for the selection of an E.F.S.P. The Honourable Jean-Jacques Fleury A retired Justice of the Superior Court of Justice for Ontario March 2002................................................................................................................................................................. 231 1 2 3 4 5 6 7 8 9 What is e-filing?.............................................................................................................................................. 233 What does one need in order to e-file a document? .............................................................................. 235 Case management .......................................................................................................................................... 236 Benefits of e-filing .......................................................................................................................................... 237 Differences in documents to be filed ......................................................................................................... 239 Need to teach e-filing technology ............................................................................................................... 240 XML Language............................................................................................................................................... 242 Perceived reluctance on the part of judges to learn a new language ............................................... 244 Difficulties ........................................................................................................................................................ 247
9/11/02
10 11 12 13 14 15 16
Right to privacy......................................................................................................................................... 249 The chill effect ....................................................................................................................................... 250 The case for a competitive EFSP......................................................................................................... 252 The electronic envelope....................................................................................................................... 253 The Toronto project................................................................................................................................. 254 Pre-requisites ............................................................................................................................................. 256 Conclusions................................................................................................................................................. 259
APPENDIX 1: Discussion Paper: E-filing Service Provider Model William Murray, Government Online, Supreme Court of Canada Gary Pinder, Government Online, Federal Court of Canada February 2002............................................................................................................................................................ 261 1 Executive Summary....................................................................................................................................... 262 1.1 1.2 1.3 1.4 1.5 1.6 2 3 4 5 6 Introduction....................................................................................................................................... 262 Conceptual Model............................................................................................................................ 262 Traditional vs. Internet Enabled E-Filing.................................................................................... 263 Standards as a Key Enabler........................................................................................................... 264 Private Sector Partnerships........................................................................................................... 264 Feasibility Report............................................................................................................................. 265
Background...................................................................................................................................................... 266 Project Partners.............................................................................................................................................. 267 Pathfinder Theme .......................................................................................................................................... 269 Business Models and Electronic Service Delivery................................................................................. 270 Traditional Vs. Electronic Filing Service Provider (EFSP) Model .................................................. 272 6.1 6.2 6.3 6.4 6.5 EFSP - Economic Advantages....................................................................................................... 274 EFSP - Continuous Cost/Quality Improvements through a Contestable Market................. 274 EFSP - Document Management - Copyright and Privacy........................................................ 274 EFSP - Movement of Cases within the Judicial System............................................................ 276 EFSP Client Perspective............................................................................................................. 276
7 8
Extending the EFSP Model ......................................................................................................................... 278 Obstacles to Cross-Jurisdictional Approaches to Service Automation........................................... 279
9/11/02
9 10 11 12 13 14
Public Perception Independence of Courts ......................................................................................... 280 The Electronic Envelope & Courier.................................................................................................... 281 Private Sector Investment Opportunity ............................................................................................. 282 Standards as a Key Enabler................................................................................................................... 283 Positive Network Effects - Reaching Critical Mass......................................................................... 284 Conclusion .................................................................................................................................................. 285
9/11/02
Preface
In May of 2001 the Office of the Registrar of the Supreme Court of Canada submitted a proposal for funding under the Federal Governments Pathfinder program, to explore the application of private sector e-commerce models to e-filing services in Canadian Courts. Proposals were evaluated based on the degree to which they responded to the Government Online commitment to provide secure, citizen focused electronic services that integrated information across departments, governments and jurisdictions. The proposal was approved as submitted.
Pathfinder as a metaphor is particularly appropriate in describing this initiative. Our purpose was not to propose E-filing standards or models for adoption by Canadian Courts. Our purpose was to engage other jurisdictions and private/public sector constituencies in exploring the feasibility of providing secure, low cost e-filing services to practitioners in Canada with limited financial commitment from courts.
The decision to undertake this project was largely driven by the recognition that based on current approaches to implementing E-filing on a court-by-court or jurisdiction-byjurisdiction basis it may not be economically feasible within Canada. This is especially true given the likely position of many courts that E-filing should not be mandated thereby replacing traditional counter service, but be offered as an additional service channel, and therefore an additional cost to the organization.
The focus of the project and the topic being explored in this feasibility report then is the application of a private sector e-commerce model that spreads the capital and operational cost of electronic services among the constituents of the justice community (as opposed
E-Filing Service Provider Model Feasibility Study 8 9/11/02
to replicating the costs on an organization by organization basis) to E-filing in the courts. The underlying premise is that the economic advantages resulting from economies of scale may provide an alternative approach to E-filing attractive to those jurisdictions with low volumes and limited resources. In addition, certain network effects accrue as byproducts of this approach, including an integrated information base, the promotion of standards development, and the transparent movement of cases between participating jurisdictions.
To validate the technical feasibility of a private sector hosted E-filing service, the Supreme Court of Canada entered into a cooperative agreement with the Federal Court of Canada, Quicklaw Systems, SOQUIJ, and Juricert Services for the development and demonstration of a system that would allow practitioners to file documents through a single service provider into multiple courts. Work on this prototype continues.
Two lead presentations and subsequent follow-up presentations were used as a vehicle to raise awareness and understanding, and engage jurisdictions in joint exploration of alternative approaches to E-filing. The lead presentations were given to the technology committees of the Canadian Judicial Council and the Association of Canadian Court Administrators. Responding to the interest generated from the lead presentations, followup presentations were requested and given in Newfoundland, New Brunswick, Prince Edward Island, and Manitoba.
It was recognized at the outset, and validated through the Q&A in the presentations that many complex issues surround E-filing in the courts in general, the most often cited being public access, copyright, security, rules of procedure, and the redistribution of costs between the courts and litigants. It was also clear that other areas of concern would arise in an Electronic Filing Service Provider model, especially those related to the integration
with already existing or planned integrated justice systems, and the handling, care and control of electronic documents by private concerns external to the courts. This feasibility report examines these issues and others in the context of the E-filing Service Provider Model.
This feasibility report is the compilation of four independently drafted opinions representing judicial, practitioner, academic, and business perspectives. Each author was provided with an individual presentation and Q&A session on the Electronic Filing Service Provider Model, and was provided with a copy of the Discussion Paper: Electronic Filing Service Provider Model (Appendix 1). In addition, a list of potential interviewees was compiled from members of the judiciary, bar, and court services, and an E-filing.ca website was established with links to relevant materials to support their research.
While the findings of the authors are many and varied, several are particularly noteworthy: 1. A much more comprehensive standard that spans information, communications, and security architectures is required if a common platform upon which a competitive e-filing market could be based is to be technically feasible. 2. The involvement of the private sector, while bringing many benefits, served to complicate privacy and copyright issues especially given the relatively immature regulatory and policy framework they would operate in. It seems almost certain that if such a model were to be instituted, some regulatory or oversight function would have to be established to protect the interest of the courts and the people they serve. 3. The Electronic Filing Service Provider model may provide significant cost advantages and promote the development of standards-based value-added services
for the judicial system and legal community. Realizing these however will depend heavily on the implementation.
In the scope of this study, similar E-filing models were explored by the authors; most notably in the United States and Singapore. In Singapore, the state has mandated a single e-filing system across the judicial system, while in the US context, the evolution of common e-filing services is more market driven. In Canada, the emergence of a competitive market for private sector hosted e-filing systems to serve Canadian courts (and even a broad range of public sector organizations) is plausible, but it will likely require the establishment of an oversight body and regulatory framework, and further development of information, communications and security standards.
This project has attracted significant interest from various stakeholders. In terms of achieving its goal of raising awareness and understanding, and promoting dialogue between jurisdictions on alternative approaches to E-filing in Canada, it has been a success. It is not clear however whether a common e-filing platform, or some variation of this will ever come to fruition in the Canadian context. There was predictably a mixed reaction to the many presentations we delivered, ranging from very enthusiastic to extremely skeptical. Of the feedback we received one observation from an attending Judge was particularly succinct in summarizing the overall response: We generally agree that this is where we have to go we just dont agree on how to get there.
Anne Roland Registrar, Supreme Court of Canada September 2002
11
9/11/02
E-filing in Canada: Comments on the E-filing Service Provider Model Daniel Poulin, Faculty of Law University of Montreal March 2002
12
9/11/02
Executive Summary
Bill Murray and Gary Pinder, experts with the Supreme Court of Canada and the Federal Court of Canada, undertook to explore ways those institutions could make the transition to electronic means of exchanging and managing their information. Two projects were initially presented to the Government On-Line program. Those two projects gradually melded into one, the project described in Discussion Paper: E-filing Service Provider Model. The paper, the authors caution, is not an endorsement of any particular model, but rather seeks to identify ways a cohesive e-filing system could be set up in Canada. Four elements are particularly noteworthy: the discussion paper provides a general framework rather than an isolated project; the proposed framework is based on the use of technical standards (Standard as Key Enabler, the authors write); the business plan draws on the private sector, a partner capable of finding and developing markets; finally and this is not the least of its merits the paper calls for the creation of a competitive environment for electronic filing. In our view, the path they lay out is a good one. That does not mean we have to accept at face value every element of the proposal without looking at other approaches or exploring other avenues. On the whole, however, the direction is right and we ought to go that way. We chose to suggest a number of approaches, and they are almost always in line with the approaches taken by the authors of the discussion paper. Only the most important of those approaches is reiterated here.
13
9/11/02
The proposal to implement a cohesive e-filing system confirms (as if confirmation were necessary) the much-felt need for a Canadian Legal Information Council. A legal information council could carry out consultations and adopt the technical standards that are so terribly lacking in the Canadian legal community today. This proposal and the dialogue it sparks may be our chance to acquire this tool not only to clear the way for electronic filing, but also to develop the other standards and practices that are needed in our field of endeavour. We now have to call on the judiciary to take a close look at the proposal put forward by Murrray and Pinder. It sets out a bold new approach that will enable our courts to move toward even more efficient use of new technologies. The influence of and enlightened support from the judiciary are essential in getting an initiative of this type off the ground. Others will also have to examine the merits of the proposed model, in particular administrators of the major Canadian judicial institutions, but we are confident that they, too, will recognize the potential of this proposal.
14
9/11/02
Introduction
Bill Murray and Gary Pinder, experts with the Supreme Court of Canada (SCC) and the Federal Court of Canada (FC), undertook to explore ways those institutions could truly embrace digital technology for exchanging and managing their information. Two projects were developed and submitted to the Government On-Line program. According to the program principles, projects must help improve services by making them more accessible, faster, less costly and more comprehensive by exploring new forms of collaboration, the use of better technologies and the establishment of partnerships with the private sector [GOL]. In light of those principles, the projects of the two federal courts were very well received; both were recognized as beacon projects. What started out as two separate projects gradually melded into one, the project described in Discussion Paper: E-filing Service Provider Model [MURRAY 02] (the discussion paper). This project comprises several elements: validation of an approach based on LegalXMLs Court Filing 1.0 standard, practical testing of e-filing and measurement of the impact on court operations, as well as development of a business model for implementing e-filing in all Canadian judicial institutions. The challenge of the project is essentially to explore the introduction in judicial and legal settings technological innovations likely to improve the workings of the legal system in a way that is respectful of the law and within the limited financial means. The discussion paper does this; it describes a framework that can draw on collaboration and partnerships with the private sector to provide better services at a lower cost. The challenge is by and large met. This does not mean that all the elements of the project have to be accepted at face value without looking at other approaches or, from a more cautious standpoint, proposing further discussion. The challenge is met because the discussion paper describes a framework likely to meet all of the constraints imposed on Canadian courts. First, and this is a key point, the project centres around technical standards that conceal the potential to create a market of
standardized tools for courts. Second, companies that are highly respected in legal circles have been associated with the project from the start. Their input helps ensure that the efiling market will reach practitioners. And third, the market that is created will have to be competitive. As the authors of the discussion paper wrote, this should ensure practitioners and courts the best value for money. All this should convince many courts to proceed. However, there are two reservations that must be stated at the outset. Despite the importance the discussion paper ascribes to maintaining healthy competition among the companies involved in legal activities, it is uncertain whether the project as presented provides a technical normative framework that can support the growth of a competitive market for e-filing services. In that connection, we can only deplore the lack in Canada of a forum capable of identifying the technical standards required by the legal system and, if necessary, fostering the development and creation of such standards. Secondly, it seems at first blush that the responsibilities assigned to the external partners, particularly with regard to management and handling of the documentary holdings generated by legal activity, are too demanding. Privacy issues and issues related to the openness of the judicial process also give rise to comments which, while not entirely new, echo the debates over these matters that have taken place in other similar projects in Canada and abroad. The following comments essentially concern the model described in the discussion paper. The discussion paper, a convincing synopsis of a rather complex project, serves the project well. It describes in a direct and frank way the means that might be used to implement e-filing in Canada. It also reflects the authors understanding of the challenges inherent in creating such an environment. We begin with a detailed examination of the proposals in the discussion paper from our perspective as an outside observer. This examination casts a different, yet complementary light on the proposed e-filing model (section 2). The study of experiences outside Canada may help identify best practices and the technical solutions most likely to smooth the transition by judicial institutions to digital technology (section
3). Some legal authorities have taken on the task of identifying the framework best suited to the ordered development of e-filing projects. The work done in California is a particularly fine example of this. It remains to be seen whether any of the results out of California will provide solutions that can be applied to the Canadian legal system. What is perhaps certain, however, is that the approach used in California merits further study by our institutions (section 4). All of this insight may shed light on some of the issues related to e-filing (section 5). On that basis, we can make a number of observations as to the direction of the project. The first of those observations highlight the aspects of the proposed model that should be supported the most. The same is true of the business model, which, though it may seem bold in context of Canadian law, is probably the model most likely to facilitate the implementation of new information technologies in Canada. As to other aspects of the project, directions and solutions different from those of the authors can be outlined. Some reflect a different understanding of the principles at play, while others suggest different and perhaps better ways of achieving the same ends. Winchell Todd Vincent, a professor at Georgia State University and the driving force behind the creation of the LegalXML workgroup, ended his evaluation of an e-filing project carried out in Georgia on an ambivalent note. He wrote that if the cost of e-filing failed to be covered by filing fees, the courts would either have to come up with the money or remain in the paper age. Those, bluntly put, are the options. However, the latter does not strike us as realistic. The transition to electronic filing cannot be put off indefinitely. Instruments prepared using a computer today have to be printed in multiple hard copies and distributed to other lawyers who also use computers and have to scan them or copy parts of them. The legal system has the same problem. Added to that is the fact that the volume of documentation has increased as new technologies have become more efficient, whereas the means used to handle it are more or less the same as those used for paper. Finally, a great deal of space is needed to store all that paper, whereas a CD-ROM capable of holding 180,000 pages of text takes up very little space. In that context, it is inevitable that information technologies, computers and the Internet will sooner or later be used to
17
9/11/02
send and handle the documents submitted to or used within the justice system. That, we believe, is certain. Of the three options identified by Vincent, only two remain: private funding and public funding. Each poses significant challenges. The discussion paper explores an approach based on private funding. This innovative approach is not without its problems. Our comments will identify some of those problems. What is certain, however, is that one way or another, Canadian courts will manage to move into the information technology age. In that context, the options explored in the discussion paper are extremely useful, not because they are models ready to be adopted the authors of the discussion paper are very clear: all they set out to do was explore possible solutions [MURRAY 02, p. 8] but rather because they help free up choices and broaden perspectives. In that sense, funding for the federal courts project as a beacon project seems to have been entirely warranted. It sheds new light on ways of bringing the Canadian legal community into the electronic age.
18
9/11/02
E-filing service provider project
The discussion paper proposes the introduction of a new player to facilitate the transition to electronic media by the Canadian justice system. The new player will have to take its place among the traditional players in the system. This innovation seems to provide an excellent opportunity to improve the efficiency of the technical work related to legal activities. In the following sections, we present our understanding of the framework put forward in the discussion paper. The business models, the players and the technological framework will all be reviewed. 3.1 A near-perfect model
The means chosen to make the transition to e-filing is innovative. It is based on the business models that emerged with the Internet and that are sometimes referred to as an Application Service Provider (ASP). An ASP allows its clients to use programs over the Web. Those programs are not installed on the clients computers, but are simply used by the client. This business model has many advantages for the Canadian justice system, In our situation, the model is near perfect. The courts have little or no money to spend. Service providers develop the system and are paid back by filing fees. They can also use the data they receive. Law firms will see significant gains in productivity, and their litigation costs will be considerably reduced. Law firms will fund the system, but they are already paying for the service through courier charges and the time their employees spend filing through conventional means and consulting files in the various courts. More specifically, according to the authors of the paper, there are six main advantages (p. 15): the cost, risk, and benefits of such a system could be shared across the entire community; it provides for the seamless flow of cases between jurisdictions;
19 9/11/02
it provides for a comprehensive cross-linked digital warehouse of decisions, transcripts, factums, summaries, and in process information not currently available;
it develops standards that are useful in preparing documents and judgments; it promotes the consistent treatment of key issues relating to privacy, security and copyright;
it provides a single registration for the initiation of cases and filing of documents, regardless of court or jurisdiction.
This last element, the implementation of one or more portals that would accept filings for multiple institutions, may mean the difference between the success and failure of e-filing. Experiences outside Canada suggest that it is hard to get the legal community to use remote resources. In contrast, a system that integrates a range of filing services offered at a reasonable cost should attract a large clientele of filers. From the standpoint of legal institutions, if an e-filing system is to provide any benefits, it must first and foremost be viable, and to be viable, it has to be appealing to the legal community. Finally, the business model is attractive to the public in that the productivity of legal institutions and law firms will increase, which would presumably make the cost of accessing the justice system lower. The authors put forward other arguments in support of their model. The horizontal integration made possible by the model leads to economies of scale, but also helps the various stakeholders focus more on the specific tasks related to their expertise (pp. 9-10). According to the project designers, having the private sector set up the portal will mean better services because of the competition that will develop between filing service providers (p. 10). The business plan states that the current partners, QuickLaw and Soquij, will not have an exclusive market (p. 6). Whether all these benefits are realized, however, depends on the successful deployment of a framework that makes filing systems truly interoperable and interchangeable.
3.2
The players
The players to be considered in connection with this project are many and varied. All court employees and filers will be directly affected. In a less direct way, members of the general public will see their access to the justice system made easier or impeded. Finally, the project will usher in a new player, the electronic filing service provider (EFSP). 3.2.1 The public
Most of the time, members of the public have few direct dealings with the justice system. Still, in terms of the project being reviewed, their expectations are clear: they need a justice system that is independent, predictable, effective and accessible. Courts not only have to be independent, but also have to be seen as independent. The electronic filing system must not obliterate the differences and distances between specific institutions. In our context, predictability echoes the ease with which a person comes to know law and be aware of the decisions that are made. Accessibility refers to the direct and indirect costs of using the system, that is, court costs and the cost of being represented by counsel. Accessibility also means that it must always be possible for people to represent themselves in court. Finally, because they are supposed to know the law, people need to have the best possible access to the documents the system can reasonably expect them to obtain. 3.2.2 Courts
Court employees will have a front-row view of the transition to electronic filing. Because of its all-encompassing nature, the project has the potential to profoundly change the way court administration works and will undoubtedly affect everyone involved in the process. Regarding the courts, we should make a distinction between the impact on judges and the impact on support staff. For judges, the project depicts an environment that will provide sophisticated access, including search functions, to the entire case at any time from the courtroom, chambers or home. The transition to an electronic file can of course be made gradually in that the
electronic documents can still be partially or fully printed for judges who find hard copies more convenient. The role of court administration staff will undergo more radical changes, and those changes will occur more quickly. Management of paper documentation has always been labour intensive. The elimination or, more realistically, reduction of paper is bound to have an impact. Electronic documents require different resources, in particular technological resources, and managing them requires sizeable investments. In principle, courts have to adopt a system to manage electronic documents. The specific model being explored, which is built around a private portal that provides on-line services as well as electronic document management, does not significantly increase the magnitude of the changes that courts will experience. It reduces the investment required, but makes the court more dependent on its service provider. This obstacle can probably be overcome. Once the file is electronic and is stored on an electronic medium, the location of the server in the court itself or accessible through the Internet should not mean any significant practical differences provided access to the information is efficient. The psychological effect, however, is probably an entirely different matter. Not only will the court no longer have the physical file on paper and cardboard, but the intangible electronic file may be located somewhere else, even in another city. That aspect of the project is definitely bold, but the alternative is not cut and dried. It assumes that the courts involved will adopt document management systems. The courts will have to determine whether in-house management, court by court, of electronic documents is important enough to warrant setting up a document management system in each court despite the cost. This first alternative aside, other scenarios could be explored in order to provide courts with the security they need, but without having to develop dozens, even hundreds, of electronic document management resources. The Canadian legal community is relatively heterogeneous. Some of our courts are federal, while others are provincial or territorial. Some are large organizations covering vast territories, while others are very small. Some have the authority to hear appeals, while others hear cases at the trial level, and so on. The result is that the Canadian legal
community is very segmented. The organizations that make up the legal community need and have considerable administrative independence. However, that independence makes it harder for courts to come together when general strategies have to be developed. With regard to the e-filing project, the factors we believe are most important for courts pertain to security requirements and the need for independence. Independence also means that courts must be seen to be independent. It is important to also bear in mind the variety of court rules and, of course, the lack of financial resources. 3.2.3 The legal community
The legal community cannot be indifferent to the e-filing project. As matters stand today, the lack of e-filing capabilities translates into high costs for lawyers and their clients. Those costs are related to the production, copying, distribution and storage of documents and to the use of paper. Consider the necessary re-inputting of texts or portions of the information they contain and the possibility for error; the inability to do automated searches; the frequent need to scan whole paper documents for major cases, etc.; and the list goes on. The needs of the legal community relative to the project relate first of all to whether it is possible to file documents effectively and at a reasonable cost. However, other elements will help determine whether the system is acceptable to lawyers: simplicity, security and homogeneity. We are confident that the legal community will react more favourably to a system that allows instruments to be filed in any court than it will to a disparate collection of filing resources that would make the system more complex. It should also be noted that filing costs should not be kept down at the expense of monopolization of other functions essential to legal work, such as the production of information services related to court records or case law. 3.2.4 E-filing service providers
Under the project, despite the narrow connotation of the title, the role of this new component of the justice system is relatively broad. That role covers the direction and
routing of the data that players in the justice system have to exchange, as well as the management and subsequent distribution of the data accumulated in the course of legal proceedings. The role of these new stakeholders essentially consists in providing on the Internet places where documents can be filed electronically with a court that is linked to the system. However, aside from this primary function, EFSPs offer much more than a simple e-filing platform: they also play an important role in the management of electronic court documents associated with legal proceedings [MURRAY 02, see section EFSP Document Management and the conclusion, pages 10 and 16]. In a way, e-filing service providers would also provide electronic document management for courts. Outsourcing in this way the document management function that is an inherent part of the judicial process would enable the courts to save on document management systems. Courts would also be able to concentrate on legal activities per se. Courts would handle the case management system, but the electronic documents themselves would not be managed by the courts; all the courts would have is a copy for its records. In order to take on that role, service providers would have to receive from the courts not only the filed documents, but also decisions, transcripts, factums, summaries and follow-up information pertaining to the progress of cases (see MURRAY 02, Conclusion). This is a bold approach, but implementing it may not be as revolutionary as it seems. Three comments are in order. First, and this is a key point, in such a scenario, the court would retain both ownership of and control over the documents; only technical management of the documents would be delegated. Document management would thus continue to be fully subject to the rules governing judicial institutions. Second, the delegation of this task is not unlike the way decisions have been managed for decades. The courts produce decisions but generally use them through outside commercial service providers. Further and this is important in this type of situation, service providers are usually more than happy to give the courts free access. Finally, technology is making it possible to install the necessary computer systems in the service providers place of business but keep the files themselves on the courts servers. This means that electronic
24
9/11/02
documents would in a sense be managed remotely. There are still other scenarios that could be developed. 3.3 The electronic filing system
The proposed electronic filing system cannot be described based on the study of a working portal. However, the examination in the discussion paper makes it clear which elements are most likely to be found in the proposed environment. One of the central elements of the proposed framework comes from DTD LegalXML. It is the cornerstone of the proposed technical environment. LegalXML is what makes the system interoperable. For that reason, it would be useful to take a few lines to explain to non-computer types what the technology is all about. Despite its name, XML (eXtensible Markup Language) is not an actual computer language, but rather a set of rules that makes it possible to define markup languages, that is, languages which can be used to tag elements in a document. HTML, for example, is a markup language. Languages prepared using XML, sometimes called applications, are much more closely adapted to a specific context. They are specified using document type definitions (DTD). These languages define classes of documents, that is, sets of documents with common properties, such as similar elements and a common structure. For example, a DTD can define a very simple document type used to mark up, or tag, elements in texts received by an organization. Documents tagged with that DTD would be as shown in Figure 1. <text> <heading> <title>The EFSP Model</title> <author>Daniel Poulin</author> </heading> <content> Here is the content and it is very long [] </content>
25
9/11/02
</text> Figure 1: Portion of an XML document It does not take a computer expert to realize that a computer program will easily retrieve the information contained in the tagged elements of such a document. In the example, the program will easily recognize this as a text in which Daniel Poulin is identified as the author. This is how the authors of the discussion paper would like to see XML used, apart from the fact that the filed documents themselves would not be tagged, but attached to a tagged document, the envelope complies with DTD LegalXML Court Filing. The court would receive in the envelope the information about the attached document, specifically the name of the filer, the case and so on. In our context, XML is the alternative to carrying data in MS-Word or WordPefect documents. In short, XML makes it possible to specify the structure of certain documents in such a way that programs can use the information. With that technical explanation out of the way, we still have to examine the other aspects of the system proposed in the discussion paper. Those aspects are reviewed from the perspective of the key players in the justice system. 3.3.1 Filers
The filer prepares his or her documents in the usual way. Then, depending on how automated the firm is, the information needed for filing name, date, case number, etc. is retrieved from the computer systems and encoded in an XML document that meets the Court Filing standard. Alternately, if the firm is not that automated, the information will be entered in the appropriate fields on the portals Web pages. Once this is done, the subject of the filing, the document and its envelope are ready. Other tasks still have to be performed, but they, too, can be automated; they include payment of fees, signature of documents and actual transmission, as well as receipt of confirmations and possible service of the filed document on other parties.
26
9/11/02
The filer has to provide instructions regarding the payment of legal fees and fees charged by the filing service provider. In many cases, these tasks will be done automatically because the EFSP will know the lawyers usual terms of payment; all the lawyer has to do is confirm them. Regardless of what mechanism is ultimately chosen for signing documents, the signature will appear after the filers name; one option would be to enter the filers user name and password. A command is then run to send the document. The filer will then receive an acknowledgment from the EFSP confirming that the filing is being processed. The filer will eventually receive from the court a message confirming that the filed document has been accepted. If the rules of the court permit, the court or the e-filing service provider may also offer to serve the document on the other parties. 3.3.2 Electronic filing service providers
In simple terms and from the standpoint of the portal operator, there is more to filing a document than receiving XML documents, envelopes and attachments and relaying them to the right court. As Figure 2 shows, there are many steps to be completed.
27
9/11/02
Filer Request for filing
Portal
Court
Electronic File Manager (EFM) accesses Court Policy DTD document
Policy received Court filing prepared and sent Rejection/confirmation that document has been made available to the court Receipt and validation
Policy sent
Employee checks filings received using EFM
Filing accepted or rejected Acknowledgment from court Figure 2: Electronic filing flowchart
However, there are many activities apart from simply forwarding filings that will centre around the e-filing portal. That would be the case, for example, at least if a broader role for service providers were to become a reality, for all transactions related to access to a court record by the court, the parties representatives and even the general public (subject to the rules of access adopted by the court). The service provider will probably also be responsible for serving the document on the other parties.
3.3.3
Courts
According to the model described in the discussion paper, court staff will access the portal in order to check filings received using Electronic Filing Manager (EFM) software. If the filing is accepted, the document will be placed in the electronic court file. The technical result of this acceptance will depend on the specific arrangements of the court regarding the management of electronic documents. Some institutions will probably choose to manage electronic documents themselves. The received document will then be placed in that management system. In cases where the management of electronic documents is delegated to the filing service provider, acceptance of the document means that the document will be linked to a current case and will be placed in the service providers document management system. A copy of the document will also be kept by the court for reference and archiving. Once it has been accepted by the court, the document can be accessed by anyone with the proper authorization, be it a judge, a lawyer or a member of the public. It can also be served on the other parties using electronic or other means. The service provider will have to be able to comply with the directives set out in the rules of procedure or a specific order regarding the restriction of access to documents. Access to the court file will of course be free of charge for the court, and it is quite probable that it will also be free for the parties. It is equally clear, according to the scenario described in the discussion paper, that there will be an access fee for other users. 3.3.4 Competition between filing service providers
The description of how the project works would not be complete if we did not address the interoperability of services, which will necessarily lead to competition between service providers. According to the model, lawyers will use a service provider of their choosing. The technical standards adopted by all the stakeholders are what will make it possible to forward received documents to the right court. The first that spring to mind are DTD (Document Type Definition) Court Filing and Court Policy, both produced by members of the LegalXML consortium. The project also provides for the development of common
networking software, Electronic Filing Manager (EFM) referred to in the discussion paper as prototype and middleware which would form a bridge between communications from filing service providers and the courts computer systems. We will have an opportunity to discuss this interoperability. 3.3.5 Software environment
In terms of software, implementation of the filing environment requires specialized tools in law firms, service providers places of business and courts. Some companies are sure to develop those tools, and the cost will be covered by client firms. The software needed to implement the filing portal the functions include receiving and sending, validation and storage, retrieval, user management and payment management will also be developed by companies at service providers expense. These software tools will, however, have to include interfaces that meet the established standards and protocols in order to be interoperable. Other software will be needed by courts in order to network the filing portal with other local computer systems. The discussion paper calls for this to be done using filing software or an Electronic Filing Manager (EFM). Court employees have to be able to check filed documents to ensure that they are in the prescribed form before entering them in the courts case management system. Once that check is done, the Court Filing information in the XML envelope has to be entered in the courts case management system. This task is made easier by a standardized application program interface (API) (see Figure 3). If the system is deployed as designed and if, as a result, filing service providers also handle document management, many other interfaces will have to be designed in order to ensure communication between the court and the service providers portal.
30
9/11/02
Software environment Law firm Automated preparation of information accompanying documents sent to court Portal (service provider) Mechanisms for receiving, sending, validating, storing, managing documents, retrieving, and managing users and payments Software for networking with court (EFM/middleware) Public key infrastructure Technological and administrative infrastructures to authenticate lawyers using certificates. Administrative interface for checking filings, networking with courts data systems
Development Private
Funding Private
Private based on open, public standards
Private
Private based on open, public standards Private
EFM: private API: public
Private
Figure 3: Software environment for the electronic filing project
31
9/11/02
Experiences in jurisdictions outside Canada
The number of e-filing projects has increased manifold in recent years. In the United States alone, dozens of projects have been developed in more than 15 states [OCONNOR 00]. A comprehensive review of those projects is far beyond the scope of this document. We will look at five of those projects, the ones we felt were especially likely to give us insight into the models and the strategic choices that were made. The projects cover individual courts as well as whole justice systems. The projects we examined are also diverse. They illustrate partnerships with business and initiatives that draw on the strengths of the legal system. Some favour a single service provider, while others focus more on interoperability and open standards. Together, these projects provide a good overview of the solutions currently used by courts to offer electronic filing. The project carried out by the Federal Court of Australia was designed to meet the courts specific needs and is being phased in. The national e-filing project in Singapore, a country well known for its commitment to the use of information technologies, uses a very different approach. It is a national project, but is being developed entirely by the private sector. The system, designed by the administrative services of American federal courts, shows how much the pragmatic approach taken by American federal colleagues has led to success. The only major Canadian project was conducted in the Toronto region and entails experimental use of common formats like MS-Word to exchange information between lawyers and courts. The last project we examined, the E-Court Filing project carried out in Georgia by the Georgia Courts Automation Commission, is something of a window into the most common technological choices being made today. The following summaries were based on the available literature, which in some cases was sparse. For that reason, they are necessarily lacking in detail. The overview they provide of recent e-filing models strikes us as useful none the less. We just have to be careful not to exaggerate their scope.
4.1
Electronic filing in the Federal Court of Australia
The Federal Court of Australia has adopted a strategy called eCourt to implement new ways of doing business, improving access to the justice system and making its operations more efficient. The eCourt strategy comprises a number of initiatives: e-filing, an Online Forum, a case management system (CMS), a document management system and more [KELLOW 01]. Under the eCourt strategy, electronic filing is being implemented in fours stages. The first, launched in October 2000, allowed documents to be received and payments to be made over the Internet. In that phase, court staff printed the received documents, checked them, stamped them and filed them as they would conventional paper documents. The second stage, which began in March 2001, brought some improvements to the process. The filing procedure is simpler for frequent users they no longer have to re-enter all their identifying information, and court staff now prepare the stamped version of documents received in PDF format. The court is now able to receive electronic documents, but its internal operations are still entirely driven by paper. The next two stages are intended to change that. Once all the stages are complete, at least in terms of the issues that are of interest to us, the court will be able to manage electronic documents with appropriate tools like a document management system. Authorized outside users will be able to retrieve and consult information on active cases and access court databases. It will also be possible to have documents served on other parties electronically. The technical solution used until now by the Federal Court of Australia is relatively simple: a Web server in SSL mode, probably linked to a database application in order to manage frequent users. The real pices de rsistance will come with the introduction and integration of case management and document management systems. The court chose to deal in a relatively pragmatic way with the issue of authentication of the people who use its e-filing system. The signatories simply have to type their name into the electronic file with the intent to be bound.
In practice, it is very simple to file a document in the Australian federal court through the Internet. All it takes is to go to the Filings, Forms & Fees page on the courts site. From there, the user chooses a form. People who are known users of the system simply have to provide their user name and password. Other users have to identify themselves and provide a great deal of information. Finally, the filed document is attached to the Web page, and the user is asked to submit it. Once that is done, a page containing a transmission number appears. At that point, the document has still not been accepted by the court. Confirmation of acceptance does not come until staff have processed the filing in the conventional way. Confirmation takes the form of a stamped PDF document which the court sends by e-mail. The Federal Court of Australia is pretty flexible when it comes to format: it accepts Word, RTF, PDF and many other formats. The only requirement is that the document be printable with the content and form in which it was created. The rules of procedure require that copies of all originals of documents sent electronically be retained and produced at the request of the court. This project clearly illustrates the traditional approach to the extension of court services. The desired integration is vertical in that the new functions are implemented by the court itself. The court retains control over both the project and the operation of the systems that emerge from the project. This model is not surprising; it is in line with the way courts usually do business. It was often the only way before the Internet-driven development of business models. And even now, it is still the only way in some cases. However, examined over an entire justice system, the approach is costly. It requires considerable financial resources because solutions have to be found and implemented locally for each court. Economies of scale are not possible unless one courts experience is subsequently made available to other courts with similar needs. For companies, the absence of shared technical standards makes this type of market less attractive. They have to invest heavily in order to enter the market, but that investment may not have any commercial future because the next court will define its needs differently. The courts then risk paying dearly for their autarky.
34
9/11/02
This type of approach entails yet another risk. It is uncertain whether the system will be embraced by the primary stakeholders, that is, lawyers. It is too early to know the specific results of the eCourt project in this regard, but this type of project must always be adopted by practitioners. While a general shift by the courts toward e-filing can provide the impetus needed to win the support of a significant portion of the bar, adding an isolated system or a system that is different from the others by no means has the same drawing power. Finally, a given court still cannot wait around for a widespread move to e-filing to emerge. Sometimes a court has to set out alone, even if it knows that that approach is less than ideal. 4.2 Electronic filing in Singapore
At the sixth National Court Technology Conference (CTC6), Chief Justice Magnus of the Subordinate Courts of Singapore presented an enthusiastic profile of the progress that has been made in the use of information technologies in the Singapore justice system and in particular by the courts. While many aspects of this modernization are very interesting, we will limit our review to the e-filing system implemented for civil cases, the Electronic Filing System (EFS). For some, the EFS is a source of inspiration in that it illustrates a successful and widespread transition to electronic methods in a national justice system. A closer look at this achievement makes it possible to identify what can be copied and what we should forego. Despite the different contexts, this project has a number of features in common with the project being developed here at home. Justice authorities in Singapore opted for an outside partnership to develop and implement an e-filing system serving the entire justice system. That decision was part of the policy adopted in 1996 to outsource both the development and the management of legal support systems because of the shortage of specialized staff and also to support the development of the national computer industry [MAGNUS 99, paragraph 19]. The array of services entrusted to the private-sector partner CrimsonLogic includes: (1) receiving electronic documents from lawyers and forwarding them to the court; (2) where applicable, serving the filed document on the other parties; (3) consulting the court
35
9/11/02
record; and (4) trading in the legal information compiled in the course of these activities [EFS 02a]. A public-private partnership and the role delegated to the outside partner are not unlike the approach taken in the discussion paper. However, that is where the similarities end. Justice authorities in Singapore provided for the implementation of only one system, whereas the authors of the discussion paper would like to create a competitive market. The decision by Singapore officials to have a single service provider spares them the time and effort it would take to develop technical standards. Interoperability becomes entirely unimportant. Finally, in contrast to what could happen in Australia, participation by filers in Singapore is not a problem, because it is made mandatory by the rules of practice: (1) In pursuance to Order 63A, Rules 1 and 8, the Registrar hereby specifies that all documents to be filed with, served on, delivered or otherwise conveyed to the Registrar in the following proceedings, subject to the exceptions which appear later in this paragraph, must be so filed, served, delivered or otherwise conveyed using the electronic filing service: [emphasis added] (PRACTICE DIRECTION NO. 3 OF 2001) [KENG 01] Service bureaus offer electronic filing for a filing fee plus 15% to enable lawyers who do not have the necessary infrastructure to comply with the new rules. The system is funded by registration fees ($850), monthly subscription fees ($30) and use of the required email address ($40), as well as by a number of unspecified user fees [EFS 02b]. Finally, it should be noted that according to the annual report of the Supreme Court of Singapore, implementing the EFS cost the justice system $29 million and the private partner $45 million [SCS 00]. (The Singapore dollar is currently worth about 85 Canadian.) The Singapore e-filing project is definitely of interest in the context of our review of the approaches explored in the discussion paper. A number of comments are in order. The first pertains to the full transition approach to electronic filing illustrated by the initiative taken by justice authorities in Singapore. The centralized and relatively authoritarian approach that is possible in that country allows us to see right now the type of system that
we could put in place in a few years using the methods we use. The Singapore project also shows that it is possible to dematerialize a justice system to move from paper to electronic media. While the project shows that this can be done, it is less clear whether it illustrates the best strategy for achieving that end in Canada. The solution adopted in Singapore is based on the creation of a monopoly. Second, our colleagues did not feel it was necessary to develop open standards that would likely permit competition at some point. There is every reason to fear that the absence of open standards helps make the justice system dependent on the service provider. Third, if we are denied the authority solution, it is not certain that fees like those charged in Singapore would attract large numbers of Canadian practitioners. It seems unlikely that a strategy that involves creating a similar e-filing monopoly would be acceptable here in Canada. A sole service provider, even if it were required to use open standards, would have a lock on the market. The service provider would make us pay dearly for being dependent. Even worse, it would be increasingly difficult to get out of the situation because of the rising cost of converting to a different system. 4.3 Electronic filing in United States federal courts
The development of electronic filing in United States federal courts has drawn much praise. Somewhat provocatively, one specialized journal, E-Filing Report , asked its readers, When was the last time you saw the words federal government and trailblazer in the same sentence? And even without knowing the complete history of the successes and failures of the technological initiatives taken by American courts, we must recognize that the Case Management/Electronic Case Files (CM/ECF) and Public Access to Court Electronic Records (PACER) projects are resounding successes. Introduced in 1996 as a prototype designed to meet the needs of an asbestos-related lawsuit that was expected to generate an extraordinary volume of pleadings, CM/ECF,
the case management and electronic filing environment designed by the Administrative Office of the U.S. Courts (AO), had an impressive impact. Not long after it was first released, the system was revised and redeployed at a second site, the SDNY Bankruptcy Court. In early 1997, the experiment was broadened to include seven other district courts. In 1998, the system underwent a comprehensive evaluation and was then adopted as the basis for a general e-filing system for all federal courts [ROBERTSON 99]. Today, the CM/ECF serves seven district courts, 23 bankruptcy courts and the U.S. Court of International Trade. To date, more than six million documents related to more than one and a half million cases have been filed by more than 15,000 lawyers through the system. In early 2002, six other district courts and 38 bankruptcy courts were set to deploy the system. Implementation in all district courts will begin this year and in appellate courts next year. The AO expects all federal courts to be served by 2004 [USC 02]. As the name indicates, the CM/ECF system is a combination of tools that performs two functions: Case Management (CM) and Electronic Case File (ECF). Courts can implement the case management (CM) component and add electronic filing at a later date. The two components form an integrated system that is in turn complemented by PACER, a system that provides access to electronic files over the Internet. The systems functions can be summarized as follows: case management (tracking of motions, replies, deadlines and hearings); reports and motions; document retrieval; management, storage, backup and archiving of electronic documents; routing of documents to, from and within the court; information on the other parties when a document is filed. [USCIT 00, p.1]
In terms of design, the CM/ECF is very simple. All the filer needs is text processing software, a Web browser and Acrobat Adobe software. The same lean approach can be seen in the courts: CM/ECF requires only two servers, one accessible from the outside, and an internal one the real one that is well protected by firewall software. Both
38
9/11/02
services use Web Stronghold software. In addition, the internal server uses Informix, a relational database manager. In practice, the lawyer prepares the pleading and saves it in PDF format. The lawyer then goes to the Web site of the court in which the pleading is to be filed. The lawyer will find Web pages that use the standard security protocol for e-commerce sites, SSL (Secure Socket Layer). Using a series of succinct Web pages, the filer provides his or her user name and password, then identifies the type of document, the case number and so on. Without any fanfare, the filer completes five or six very simple steps to file the document with the court. The other parties will receive by e-mail a notice informing them of the filing. They can then use the other system, PACER, to view the documents filed with the court. The first consultation (or download) is free. Subsequent consultations or consultations for anyone not a party to the case cost seven cents ($0.07 US) a page. Readily available technologies the Internet and the Web in SSL, PDF, e-mail and a common relational database manager were used to create the worlds most widely used e-filing system [USCIT 00, p. 4, CM/ECF]. According to the AO, the system designers drew on the experience gained over the years. A recent publication a rather brief one, truth be told lists nine conclusions or lessons used in designing and implementing the CM/ECF system [USCIT 00, p. 2]. Three of those conclusions relate to respect for the habits and choices of the courts: (1) the courts must choose their timeframe for change and decide how they want to handle filing; (2) the system must adapt to the processes of the court, not force the court to adopt new processes; and (3) documents must be the same in electronic or paper form. Three conclusions pertain to the conditions needed to improve efficiency: (1) the system must be integrated with existing court processes; (2) the parties must be able to file documents themselves, and additions to the file must be automatic; and (3) the system must be used by everyone and must therefore be beneficial to users. The other conclusions state that it is important to remember that there will always be paper and echo the features of a previous internal system that should be retained.
39
9/11/02
The second system, PACER, complements the first. It allows users to access electronic case files created using CM/ECF. Each court has its own resources for electronic filing, but public access to case files is provided centrally through PACER. Unfortunately, few technical details about PACER are available. The current technology makes it equally easy to design a portal to provide access to decentralized systems in courts. It is also possible that all information could be transferred onto a series of central servers. In any event, the seven cents a page cost of consulting documents will fund the entire CM/ECF and PACER system. [PACER and CMECF] The CM/ECF project and the Canadian project are similar in a number of ways. Both are aimed at implementing an e-filing system that can serve both trial and appellate courts. Both provide not only a means of filing, but also a means of managing case files and electronic documents, as well as public access to court records. Finally, both the American and the Canadian projects have been developed by the court administration community. While they have the same objective and spring from the same sources, the American and Canadian projects are still different in many ways. No XML envelope, public key infrastructure (PKI) or even private partner for the Administrative Office of U.S. Courts (AO). Generally, in fact, the CM/ECF project is the exact opposite of the technological options currently used in specialized sectors. Moreover, the look of the CM/ECF and PACER Web pages is very sad, but it works. Let us list some of the differences between the American and Canadian systems; see Figure 4.
CM/ECF- PACER U.S. Court Adm. Office System designer U.S. Courts Administration Office Conceptual model Conventional (every court manages
E-Filing Service Provider Model Feasibility Study 40
EFSP
External ASP service provider Internet-enabled (tasks split between

9/11/02
court manages everything; however, the AO develops the system) Where filing is done (cost) Where court record is consulted (cost) Courts Web site (free, no additional fees) Through PACER, another service implemented by the AO (first time free for parties; $0.07 a page for others) Document format (envelope) PDF (information input on Web pages)
(tasks split between courts and service providers)
Service provider (unspecified fees) Service provider (unspecified fees)
Not specified, probably PDF (information input on Web pages and LegalXML Court Filing)
Authentication
User name obtained from court and password
User name/password at pilot project stage. Digital signature based on Juricert public key infrastructure is being considered.
Figure 4: Comparison of the CM/ECF and EFSP models The examination of the CM/ECF system suggests that simple, inexpensive, conventional solutions can sometimes go a long way. The system described above is simple in design. It uses cheap technologies. In the final analysis, once the system is fully implemented, the project will have taken several years and probably cost a great deal. However, the
costs are still low enough to ensure that the entire system, including the case and document management features, can be funded by the single fee for consulting documents through PACER. It should also be noted that the AOs initial approach was to implement a centralized system that would receive filings and manage electronic documents. That horizontal approach is the approach favoured in the discussion paper. The designers of the CM/ECF system subsequently moved toward decentralization. This is what they had to say about that change in the magazine e-Filing Report : In the beginning, the AO was the "trusted third party" that held the data for participating ECF courts. Even within the federal system, courts have ultimately decided that they wish to hold their own data, and plans are in place to move data from the AOs servers to those of each federal court. One aspect of this move is that performance of the ECF system will improve. Another is that federal courts have shown a strong preference for maintaining control of their own databases, which will probably be amplified in state courts. The inherent risks of having court records (with no paper back-up) in the hands of a private party have not been enthusiastically greeted by many state court officials entrusted with safeguarding these records. [NELSON 01, p. 7] Courts in the United States are reluctant to have third parties manage court case files. Centralized access through the PACER system seems to be more widely accepted, probably because from the standpoint of research, those collections need to be consolidated. And with regard to PACER, the principles of economy of scale and specialization no doubt foster the implementation of better services at a lower cost. Examining the U.S. federal courts project broadened our horizons with respect to the model proposed in the discussion paper. The examination showed that simple technological choices can give rise to an effective system. For all that, we could add that the justice system is organized and that the cost of a developing the system can be shared by many courts. That is another observation to be made from the excellent American
42
9/11/02
work. A centralized organization can develop systems that will suit dozens of courts. This leads us to one final comment. Make no mistake, the conditions that exist in the U.S. federal court system cannot be easily reproduced in Canada, because our judicial institutions are far more scattered. 4.4 Electronic filing experiment in Toronto
[Note: The only documentation used for this section was an executive summary of the final evaluation report [ATTGEN 99]. Additional documentation would probably have allowed us to do more justice to the project.] The e-filing project conducted in Ontario from 1996 to 1999 was part of a much broader review of the civil justice system and the introduction of the Integrated Justice System. The project was carried out in conjunction with many private-sector partners, including Bell Canada, Choice Information Systems, Compaq, Corel, IBM and Microsoft. Eightyfour firms with 1,300 lawyers took part in the project. There were more than 4,700 successful filings. Technically, the approach was based on the establishment of telephone links with dedicated modems and the use of Exchange software from Microsoft. Documents were prepared using templates for common text processing software. This approach apparently created problems for the designers and users alike. The report refers to difficulties at all levels. In terms of mail, MS-Exchange [] did not integrate well with existing law firm E-mail system (p. 10). Using templates was apparently not a simple task: The E-filing Project supported four operating systems, three versions of WordPerfect and three versions of Word [] As a result there were four streams of templates development and 15 combinations of testing environments. (p. 9) And on the subject of e-service:
43
9/11/02
There was limited participation in the E-Service portion of the project. Some of the participants experienced significant problems as a result of the use of incompatible word-processing software version. (p. 9) A company was hired to evaluate participant satisfaction. According to the data it collected and which were presented to us, satisfaction among firms was mitigated (p. 4): 75% were satisfied overall with the e-filing system; 43% were satisfied or very satisfied with the templates; most of the firms that tried e-service were happy with it; 41% of the firms that used the system frequently felt the training was good or very good; 73% of the firms that responded said that they would be just as enthusiastic to continue. The frank analysis in the text we consulted confirms, on the other hand, the value of open standards and technologies. We are thinking of the Internet, the Web, standard e-mail (SMTP) and, in terms of exchange formats, structured markup standards like SGML and XML, all technologies available at the time the Ontario project began. Participation by private partners is never an absolute guarantee of technological competence or success. However, the Ontario experience does not conflict with the principles of economy of scale and specialization that led the authors of the discussion paper to adopt an application service provider (ASP) approach. This second approach makes it possible to explore in much greater depth opportunities for network concentration and specialization. It forces service providers to be more successful, as they will only profit if the system is adopted and succeeds. The project also illustrates the problems related to the use of proprietary technologies where the desire is to link organizations that make independent technological choices. In
44
9/11/02
this regard, the use of open technologies seems to us to be the most reasonable conclusion to be drawn a contrario from the project we examined. 4.5 Georgia Courts Automation Commission project
The pilot project carried out in Georgia is the closest neighbour to the Canadian project, at least in terms of technological approach. By studying the Georgia project, we can benefit from the experience regarding at least three of the central elements of the approach taken in the discussion paper: standardization based on LegalXML Court Filing 1.0, the overall technical architecture and the conditions needed to ensure interoperability between filing systems [VINCENT 01]. The project was spearheaded by the Georgia Courts Automation Commission (GCAC) in 1997. At the outset, the GCAC decided to fund the university e-filing project led by Winchel Vincent of Georgia State University (ECTF). This happy situation meant that the GCAC project, even though it was not the most successful in terms of the volume of documents processed or the number of courts involved, was certainly one of the best documented. With the GCAC behind him, Vincent became one of the most ardent proponents of the development of technical standards capable of serving the needs of electronic filing. He played a central role in the establishment of LegalXML in 1999. Under his guidance, LegalXML became a non-profit organization dedicated to the development of XML-based open standards for use in legal exchanges. From the fall of 1999 to the summer of 2000, various stakeholders in the American justice system came together around the LegalXML consortium to produce the first standard, Court Filing XML 1.0 (DTD Court Filing) [CF 01]. Simply put, DTD Court Filing describes a class of XML documents capable of gathering information related to the various documents exchanged at the time of filing. In the summer of 2000, a number of companies interested in producing e-filing services were invited to take part in the GCAC pilot project, the aim of which was to determine the feasibility of an interoperable system based on DTD Court Filing. Five firms, each
45
9/11/02
associated with a Georgia court, agreed to take part; a sixth court was added later. See Figure 5. Court Chatham County Company e-Filing.com Summary of results Successful implementation of the filing system and document exchange with Verilaw. Douglas County @court Successful implementation of the filing system and document exchange with Counterclaim.com. Floyd County Counterclaim.com The Floyd County Court dropped out of the project as soon as it got under way. Counterclaim stayed. Counterclaim successfully exchanged documents with @Court. Fulton County Courtlink Dropped out of the project as soon as it got under way. Whitfield County Verilaw Successful implementation of the filing system and document exchange with e-Filing.com. Clayton County e-Filing.com Not part of the original group. Successful implementation of a system for filing highway code violations. Figure 5: Projects related to the GCAC experiment The GCAC pilot project comprised two phases. The aim of the first phase was to enable the selected companies to file documents using XML technology without worrying
unduly at the start about interoperability. The first phase was a complete success apart from the fact that two of the courts that were approached dropped out. According to Vincent, while the first phase was successful, the companies involved used an interpretation of the LegalXML Court Filing 1.0 [VINCENT 00, p. 17]. That interpretation played a significant role later in the project, particularly in the second phase, when interoperability became the most important objective. In the second phase, clients had to be able to file documents with the court of their choice regardless of which company provided the e-filing service. Strictly speaking, that objective was never met. 4.5.1 Description and process
The GCAC considered three business models for implementing filing systems. They differed from one another by the source of funding and the type of organization responsible for implementation; see Figure 6. In practice, only the first model, where the service provider footed the bill and carried out development, was implemented. The advantage of that model was that it cost the justice system nothing. In return, however, the service provider received permission to charge users for the service at the time of filing. Source of funding Service provider Court Court Implementation Service provider Service provider Court
Figure 6: Business models considered for the GCAC project On a more technical level, three architectures were considered: the Application Service Provider (ASP) model, installation of the filing application right in the court, and a hybrid of the two approaches, with services shared between the service provider and the court; see Figure 7. Under the first model, the one most similar to the Canadian project, the software used to receive documents and the software used to manage them, Electronic
Filing Manager (EFM), in essence the entire e-filing application, was physically located in the service providers place of business. In contrast, under the second model, the entire application was located at the court. Under the third model, the one Vincent appeared to lean toward in his findings regarding the project and the approach taken in the discussion paper, the application was split between the court and the service provider. The software for receiving filed documents was located in the service providers place of business, and the filing manager (EFM) and interfaces with internal justice management systems were located at the court.
ASP Receipt of filings Service provider EFM, Electronic Filing Manager Service provider
Court (conventional) Court
Hybrid Service provider
Court
Court
Figure 7: Architectures considered for the GCAC project The model adopted for the GCAC project was based on the establishment of close relations between a court and a service provider. Service providers that wished to accept filings for a court with which they were not directly associated would send the filing to the service provider associated with that court. The second service provider would receive the filing from the first and relay it to the court with which it worked more or less exclusively. Under that model, the court would establish a one-on-one relationship with a service provider, and for that reason, would be outside the sphere of interoperability. Interoperability is more the result of the ability of service providers to exchange filings where the documents are not intended for one of the courts with which they work directly; see Figure 8.
48
9/11/02
L1 EFM L2
F1
T1
CMS
T2 L3 EFM F2 CMS
Figure 8: First inoperability model in Georgia (L1, L2 and L3 represent filers, F1 and F2 service providers, and T1 and T2 courts). The reluctance of service providers to forward their filed documents to another service provider and the equally strong reluctance of courts to maintain multiple filing management (EFM) systems, each adapted to a specific service provider, fostered a shift from the original model to a second model that places the issue of interoperability squarely in the hands of the courts. If service providers prefer to send filings directly and if the court wants to use only one EFM system to receive filings, that EFM has to be interoperable and has to be located at the court. Meeting these constraints also requires a communication protocol between the court and the service providers. Finally, for obvious reasons of convenience, this protocol must be the same for all courts and all service providers; see Figure 9.
49
9/11/02
T1 L1 F1 L2 EFM CMS
T2 L3 F2 EFM CMS
Figure 9: Second interoperability model in Georgia In terms of procedure, a lawyer or court employee (including a judge) who wishes to file a document uses the service providers Web interface. He or she enters his or her user name and password. The filing interface is used to prepare the information needed to file and link the document, which was earlier prepared in PDF. [Note: The method of preparing the information contained in the XML file has not been specified. It is clear that if a program were available for this purpose, it would have been mentioned in the documentation we consulted.] In a simple case, where the filer wishes to file a document with a court associated with his or her service provider, the intermediary role of the service provider is relatively minor. The service provider validates the data received, then places the filing in queue for processing. If the document is being filed with a court with which the service provider is not directly associated, the service provider sends the filing to the appropriate provider. This exchange is done using the HTTP protocol. If all goes well, the second service provider places the received filing in a queue for processing by court staff, but that is the point where problems related to the nature of DTD Court Filing arise. We will come back to this.
50
9/11/02
According to the initial GCAC model, once the filing is received by the service provider, a court employee uses the filing management interface (Electronic Filing Manager, EFM) available from the service provider and ensures that the filing meets certain format requirements. If the document is accepted, the employee enters it in the case management system (CMS). All the employee has to do then is transpose the information received in the XML document so that it can be input into the courts case management system. This last step is the purpose of the middleware developed by the service provider or the court. As far as payment goes, the filer charges the court costs and service providers fees to a credit card. The court then receives its funds through a bank transfer. 4.5.2 Comments and analyses
The project ended in the fall of 2001, but not before some of the companies involved succeeded in exchanging documents based on the defined standard, which at least partially met the objectives of the second phase. Vincent voiced a number of concerns. The exchanges between the service providers were not done with real data, and many adjustments had to be made to the initial setup. The test did not allow authentication of the stakeholders. The security model used did not meet the level the participants originally wanted. The arrangements for payment were not validated in the context of interoperability between service providers. None of these limitations represent fundamental and insurmountable problems, but they do illustrate the inherent complexity of integrating a complete e-filing system with multiple partners. They also highlight the need for complete and specific technical standards in order to succeed. From the standpoint of the Canadian project, at least three elements strike us as worthy of examination and discussion: the value of an approach based on DTD Court Filing; the feasibility of interoperability as designed by the GCAC; and the business models explored and their relationship to the first two elements. With regard to the value of the approach, it is quite clear that the Georgia project never had the technical standards it needed to be a complete success. The project based
interoperability on the DTD Court Filing developed by LegalXML (DTD). This document is neither specific enough nor comprehensive enough to make the desired level of interoperability attainable. Vincent argued, the DTD was entirely suitable for electronic filing (p. 30). However, his statement of the lessons learned from the project makes it difficult to share that view without qualification. First, the DTD had to be adapted in order to meet the requirements of the pilot project. A variation called Pilot DTD had to be developed by integrating a Georgia Cover Sheet DTD and other changes, such as additional elements related to payment, identification of the participants and courts, etc. Despite those adjustments, the DTD was never specific enough for the needs of the project. Vincent painted a rather finely shaded picture of the problems with using the DTD: people who had not been engaged in the development process did not understand the intricacies of the DTD only a limited number of elements were actually used [] perhaps 10% in some cases, there are two ways to encapsulate the same information (usually the easy, but not intended way or the hard and intended way) [VINCENT 00, p. 29]. Elsewhere Vincent described the DTD as overinclusive and underspecified. And because some service providers had little experience with XML and interpreted and tagged data differently in different documents, interoperability was not easy to achieve. The service providers lack of familiarity and the incomplete nature and lack of precision of the DTD were obstacles that sprang from using the DTD. However, even with those problems resolved, the DTD alone was apparently not enough. The advantages and disadvantages of the two approaches to interoperability explored in the GCAC project warrant discussion. Under the first scenario (see Figure 8), a court that wishes to receive electronic filings joins forces with a service provider that in turn does business with other e-filing service providers. This approach is not without merit. It limits the problem of interoperability to exchanges between service providers.
Exchanges between the court and the service provider become private transactions in a way and do not have to follow a specific protocol. This, apparently, is the simplest approach. However, it is not necessarily the best, for three reasons. First, interaction between the court, the service provider and the filer is not one-way. In addition to the basic transaction through which the filed document and its XML envelope go from the filer to the court, there are requests to obtain court policies, possibly in the form of XML Court Policy documents, notices from the court to the filers, and so on. This body of exchanges requires the development of a more comprehensive protocol than the one needed to send a filing from one service provider to another. Second, because all of the participants have Internet access, this model will change quickly; filers will want to go straight to the right service provider, the one associated with the particular court. Little by little, we could move from interoperability to a sole service provider. This prospect is all the more likely given that service providers themselves determine the relationship between their services. Moreover, service providers business interests will lead them to seek out exclusive relationships with courts. The business model that included filing exchanges between service providers did not make good business sense for everyone. Some companies did not want their filings to go through their competitors. Their preference was to deal directly with each court. As we discuss in greater detail in section 5.3, in the information technologies market more than anywhere else, the vendors interest lies in establishing a market position and imposing its own technologies, even if the investment cost is high. The nature of computer systems is such that the cost of moving from one service provider to another is a huge disincentive, and the client is almost always in a lock-in situation. For that reason, one of the best strategies a client can take is to favour products and services designed on the basis of open standards, which brings us to the second interoperability scenario considered in the GCAC project . Thus came about an architecture much more favourable to interoperability. This architecture is far removed from what was originally planned by the proponents of the
53
9/11/02
Georgia project and sees some of the software modules moved from the service provider to the court. The filer still goes to the service provider of his or her choice, but this time the service provider makes direct contact with the court using an open, predetermined communication protocol (see Figure 9). The economic benefits of the model are quite clear. Both the filer and the court benefit from an open, competitive market, that is, a market where the option of changing service providers is not theoretical, but also practical. On the other hand, the need for standardization is greater. For example, jurisdictions in California that chose this model figure that implementing interoperable efiling will require 14 technical standards [CEFTS 01]. This does not mean that every justice institution will have to become a producer of technical standards. Such standards are beginning to appear (in California and Washington, for example) and will certainly be an excellent base for those who wish to follow suit. For the court, the multiple service provider approach is not without its consequences. The EFM module becomes software run by the court. The interface software between the EFM and the case and document managers runs in local mode. What makes the acquisition of these products reasonable is that they have to meet predetermined technical standards. The market for this software can then open up and expand. Creating a market that is profitable for courts and service providers alike is precisely the objective of organizations like LegalXML. It also provides incentive for the adoption of technical standards by court administrations. The Georgia e-filing project was short (approximately one year) and had a small budget (less than US $50,000). It involved a small number of stakeholders, courts and companies, hoping to work interoperably. Apparently, they had neither the time nor the resources to develop the necessary technical standards and protocols. In that context, the project was as much a success as it could be. Not surprisingly, the system has not been adopted widely and spontaneously; Vincent wrote that the number of filings is still very low. Everyone will agree that the value of the GCAC project lies more in the needs it identified than the filings it made possible. ***
Five e-filing projects have just been reviewed. Together, they show that the business model alone does not determine whether a project succeeds or fails. The projects we reviewed cover the four quadrants of a table showing the various combinations of local and general projects and projects which involve companies that provide products and software or on-line applications (see Figure 10).
Run by court Local project Toronto Federal Court of Australia Project covering a justice system U.S. federal courts (filing)
Run by service provider (ASP) GCAC/Phase 1
GCAC/Phase 2 Singapore U.S. federal courts (PACER)
Figure 10: Breakdown of projects by business model Projects covering an entire justice system seem to be better received by filers. This is especially so of the systems developed in Singapore and the U.S. federal courts. These major projects seem to benefit from a domino effect within the legal community, and we cannot overestimate the importance of designing a project that will be attractive enough to succeed. Inversely, isolated projects seem to be harder to get off the ground. This is only true, however, of courts with broad jurisdiction. Stand-alone filing systems are a possibility in more specialized courts that handle a very large volume. The approach taken in the discussion paper use of an application service provider probably guided us in choosing experiments outside Canada for review. However, as Figure 10 shows, and in this regard we appear to be in line with a strong trend, the main e-filing projects now include participation by external application service providers. Finally, it should be noted that the movement to define open standards for electronic filing is relatively new. It essentially began in 1999. Generally, the projects we studied the Ontario project in particular were designed before that approach was developed. In
the circumstances, we cannot be too critical of them for not using open standards. It is an altogether different story, however, for newer and especially future projects. In the future, compliance with technical standards will be one of the main criteria for classifying proposed systems
56
9/11/02
Sample technical framework for electronic filing
To ensure that efforts to modernize the Canadian justice system do not move in a multitude of relatively incompatible directions, it is important to set parameters to guide the filing projects that are bound to be developed. However, Canada and the Canadian provinces are not alone in facing this challenge. The approach taken by justice authorities in California is an interesting example of the type of framework that could be developed even adopted here in Canada. The California approach illustrates a relatively light process whereby the court administration guides the development of the market toward a solution that is acceptable legally, technically and commercially. The work done in California is also of interest to us because of its substance. The findings in California are of tremendous interest to the Canadian justice community. Canadian courts should consider the same exercise, establishing or adopting technical and legal rules to guide e-filing initiatives. We chose to present the California undertaking separately because it was not a project in the strict sense of the word, but rather a normative initiative by the justice system to establish a framework for a whole series of projects. Additionally, and this is the most important point, we preferred to discuss the California undertaking here because of the tremendous practical interest it holds for the development of e-filing in Canada. We even think it might be the best foundation for the work we will have to do. Let us look at how the CEFTS project came into being, the main rules that were adopted, and how those rules pertain to our own projects. *** In 1999, the California legislature gave the Judicial Council the task of establishing uniform rules to guide electronic filing initiatives in the state (SB 367, California Code of Civil Procedure, section 1010.6). In January 2000, the Administrative Office of the Courts began a project to develop California Electronic Filing Technical Standards
57
9/11/02
(CEFTS). One of the main results of the project was the report Electronic Filing Technical Standards Project Technical Standards [CEFTS 01]. The California committee introduced the technical standards adopted for electronic filing as follows: The technical standards will provide the basis for electronic filing projects in California [...]. Any CMS vendor, EFSP, or EFM application provider intending to do business in California should be familiar with these standards. [CEFTS 01] The objective is to avoid the emergence in California of 58 separate e-filing systems. The stated standards are those deemed necessary and sufficient to establish an environment that is both competitive for service providers and commercially and technologically adequate for courts (p. 9). The development of uniform rules is based on a number of hypotheses, such as rejecting in advance the creation of monopolies: there must not be monopolies for electronic filing services, either statewide nor within a jurisdiction (p. 4). At the start of the process, the main obstacles to the development of electronic filing were reviewed: low probability of success if lawyers are faced with a wide array of incompatible systems, and the critical importance for the courts that filing systems be able to talk to management systems. Finally, two of the preliminary considerations addressed by the authors although these were raised as factors in success were the existence of technical standards and consideration of the concerns of judges, court administrators, the bar, the media and members of the public who would like to continue representing themselves (pp. 5 and 6). The conceptual model was relatively simple, the idea being to stick to the basics: the filer, the electronic filing service provider (EFSP), the electronic filing manager (EFM) and the case management system (CMS); see Figure 11.
58
9/11/02
[Filer] (Internet) [EFSP] (CourtFilingXML) [EFM] (CMS/API) [CMS] [private commercial relations][~~~~~scope of developed standards ~~~] Figure 11: CEFTS conceptual framework According to this model, the filer does not have to be a lawyer; it can be anyone who has to file a document with a court, in particular a member of the public who wishes to represent himself or herself. Electronic filing service providers are normally companies that offer application services (ASP), but there is nothing to stop a court from taking on that task itself. The filing management software (EFM) is a tool used to examine electronic filings for acceptance or rejection. If the filing is accepted, the document and its XML envelope are forwarded to the case management system (CMS) through an application program interface (API). The California model, like many others, uses an XML document that complies with DTD Court Filing to transfer data related to the filed document. What makes the California initiative interesting for anyone considering the development of an e-filing project in Canada is the 14 technical standards adopted by California justice authorities to permit the ordered deployment of that approach; see Figure 12.
59
9/11/02
Specification 1 2 EFM Deployment Transmission Envelope
Compliance
Effective Date
Recommended Now. Required January 2001; One year following subsequent revisions.
Court URL Directory
Required
If/when directory is established.
4 5
Document Formats Electronic Signatures and Encryption
Required Required
January 2001. Now.
Case Management System API
Required
One year following specification release (estimated December 2002)
Interaction With Court Databases
Required
One year following release of Legal XML Query/Response specification
Court-Initiated Transactions
Required
One year following release of Legal XML Query/Response specification
Electronic Service and Notice
Optional
One year following release of Legal XML
60
9/11/02
Query/Response specification 10 Payment Mechanisms 11 Communication Protocols 12 Policy Management Required Required Required Now. Now. One year following release of the Legal XML Court Policy XML Specification 13 Code Sets and Translations 14 Compliance and Certification Optional Expected in 2001.
Recommended One year following establishment of compliance frameworks and certification authorities.
Figure 12: The 144 standards set out in [CEFTS 01] 5.1 EFM deployment
The complexity of the computer framework of the justice system is limited by the deployment of a single system to manage electronic filings, an Electronic Filing Manager (EFM) that interfaces with the case management system (CMS). The standard states that only one interface system is to be used per CMS. It precludes the solution whereby each service provider would install its own interface software, because that would require court staff to switch from software to software to manage filings depending on which service provider they came from. The EFM is not necessarily run by the court. It can also be directly integrated into the case management system (CMS). This standard is recommended immediately.
61
9/11/02
5.2
Transmission envelope
This standard prescribes the form of the XML envelope of the document filed with the court. No exceptions to the standard are permitted. The standard ensures universal access to courts for all e-filing service providers. The envelope must comply with one of the two latest versions of the LegalXML Court Filing DTD standard. Note: The Court Filing DTD is of course the same as the one referred to in the Canadian discussion paper. 5.3 Court URL directory
This XML directory will provide the URL (Internet address) for each courts EFM and the URL for the court policy and management parameters set out in the Court Policy DTD. Each court is required to send the pertinent information to the designated management organization. This standard will be imperative once the system is in place. 5.4 Document formats
A format standard has to be adopted because of the need to archive documents (formats have to be stable) and the desire to avoid proprietary formats. We refer readers to our review of the Ontario e-filing project. The standard also reflects the intention to promote formats that are easy for all stakeholders to produce and read and ultimately to promote formats that are not too complicated. The formats used for images are PDF and TIFF. XML documents may be accepted provided they are previously approved DTD documents and are accompanied by a style sheet designed to ensure that the document looks right when required. At present, there is no limit on the size of documents. This standard has been mandatory since January 2001. 5.5 Electronic signatures and encryption
The purpose of this standard is to help ensure a reasonable level of confidence regarding the identity and quality of filers without imposing new technological needs on courts or
62
9/11/02
creating obstacles for those who wish to file documents. The solution is particularly pragmatic. The court relies on the filing service provider. The court does not accept encrypted documents and is not able to assess a digitally encrypted signature. The service provider vouches for the identity of the filer and integrity of the document. In some circumstances, when a false statement in an electronic document could be construed as perjury, the filer has to keep a hand-signed original and be able to physical produce that original at the request of the court or any of the parties. Compliance with this standard is imperative. 5.6 Case Management System API
Application program interface (API) is an approach whereby a program opens access to those functions so that the computer specialists can produce other programs that will run with the API-equipped program. California justice authorities want to impose on their suppliers of CMS-type software an additional application program interface (API). The issue is simplifying the integration of filing systems with CMS systems and leaving the court with as much freedom as possible to choose an EFM and a CSM. It is possible that some products will offer all these features, EFM, API and CMS. A partial definition of this interface is put forward in [EFM 01]. Application of this standard will be mandatory in the year following the adoption of its specifications, that is, around December 2002. 5.7 Interface with court databases
The people who use electronic filing send documents to court but also need to receive documents. The seventh standard specifies which motions the court will accept and which types of data can be provided to applicants. It also states how the courts will promote their policy in this area. The standard states that these issues will be set out in the designated place in the DTD Court Policy. Needless to say, access to the information will vary depending on whether the applicant is one of the parties to the case or a member of the general public. E-filing service providers will be required to take the courts
policies into account and provide the prescribed access to the various categories of applicants. This standard will be imperative in the year following publication of DTD LegalXML Query&Response. 5.8 Court-initiated transactions
Apart from acknowledgments and notices of acceptance or rejection immediately after filing, courts must be able to initiate other transactions in order to reach the parties. Examples include procedural decisions and changes in the date of a hearing. The API between the CMS and the EFM will have to make such messages possible. This standard will be imperative in the year following publication of the DTD LegalXML Query&Response. 5.9 Electronic service and notice
Observing the trend toward the proliferation of means of communication used for service, justice authorities are providing for the possibility of filing infrastructures being used to serve pleadings. This standard is optional. 5.10 Payment mechanisms The standard states that filing service providers will pay court costs through a bank transfer. They will be able to accept payment by credit card or any other means they deem appropriate. The service provider will also have to submit a detailed electronic financial statement to the court each month. This standard is imperative. 5.11 Communication protocols The HTTPS/SSL approach was used because it offers reasonable security and is immediately available to courts. Exchanges between service providers and their clients, that is, filers, are conceptually located outside the scope of the standard. They can
64
9/11/02
therefore be carried out by any means deemed useful by the parties to those exchanges. This standard is imperative. 5.12 Communication of court rules and policies In an environment that comprises several filing portals and dozens of courts, filing service providers have to be able to know the filing policies and preferences of the various courts. To that end, the standard provides for use of a document that complies with DTD Court Policy (currently in development). A court can thus promote, for example, the costs and payment methods associated with filing, the elements required and the optional elements that can be included in the XML envelope, the number of documents that can be attached, their maximum size, if applicable, the court policy on service, etc. This standard is imperative. 5.13 Code sets and translations Another standard, this one optional, provides for the development of a list of standard identifiers to simplify communication between the various components of the system. Application of this standard is optional. 5.14 Compliance and certification Respect for the mandatory standards will be subject to a compliance measure and a certification process. This standard is a recommendation. *** As we can see, this set of adopted technical standards goes far beyond the format of the LegalXML Court Filing envelope. However, justice authorities in California believe that this framework is limited to the essential requirements for interoperability. This work illustrates, in our view, the direction that should be taken to further the implementation of a widespread e-filing system in Canada.
We will have the opportunity to suggest a number of means likely to help us reach that goal. However, we can say at the outset that one option would be to take direct advantage of the work that has already been done outside Canada. Interestingly, the state of Washington seems to be on that track. Last July, the Washington State Judicial Information System Committee approved an initial version of technical standards for state e-filing. The standards are based heavily on the California standards [JISC 01].
66
9/11/02
Issues
The project described in the discussion paper can draw on many similar undertakings. Some projects conducted outside Canada have already succeeded in offering electronic filing on a broad scale. Examples include the U.S. federal courts project and the Singapore project. The results of the other projects cannot really be measured quantitatively, but by the lessons we can learn from them. Together, these projects identify the issues associated with electronic filing. Those issues are technical, commercial and also legal. With regard to the technical issues, the work carried out in Georgia to verify the interoperability framework and the work that led to the development of technical standards in California are in our view excellent sources of inspiration. In light of those achievements, we have to take a close look at the Canadian project in order to see how open standards (5.1) and interoperability (5.2) fit in and to make any necessary suggestions regarding approach. With regard to the business model, all the projects we examined are useful. Some illustrate the isolated approach the authors of the discussion paper call a vertical approach. Others explore a more horizontal approach where the benefits of volume and specialization can be more fully realized. We have to determine whether the model described in the discussion paper meets the conditions needed to develop a competitive market for e-filing services (5.3). The projects we studied were very different in terms of the role played by the private sector. The discussion paper calls for a central role for companies that want to become involved in the development of electronic filing. We have to look at the issues raised by that innovative business approach for Canada (5.4). Finally, we have to determine whether the scope of the role given to service providers is adequate (5.5). With regard to the legal aspect of e-filing, the issues are very similar in all the projects we examined. However, the players in some of the projects seemed to focus more on legal
matters, or at least to have better documented their concerns and the solutions they came up with. The first legal issues that could be identified related to the accessibility of the justice system and in particular the accessibility of e-filing (5.6). Protection of the transparency and openness of the justice system is another major issue, especially where it ties in with the need for access to the electronic information that results from the filing (5.7). Finally, we look at the protection of sensitive or personal information (5.8). Where we are able to do so, we will endeavour to identify approaches to each of these issues that are likely to help identify the best approach to electronic filing in Canada. 6.1 Open technical standards
According to the reference works, a computer standard is a technical specification established with the cooperation of the parties concerned based on the results of science, technology and experience and intended to benefit all parties. It is usually approved by a qualified organization. The word open in reference to an architecture, a system or hardware, means that the specifications are published so that other companies can develop compatible products [OLF 02]. The existence of open technical standards is therefore likely to foster interoperability and, by extension, an open e-filing market. We believe that the use of open technical standards is the most important technical element of strategic planning of electronic filing by Canadian courts. The authors of the discussion paper seem to be squarely behind the use of open standards we believe we are even stronger advocates of open standards! Opinion is largely divided among the experts. To experts associated with the LegalXML consortium, Yuan and Spohn, recently wrote: There are many important reasons for using standards to guide the building of electronic filing for courts anywhere. If every court were to do it alone, there would be a patchwork of systems with different software, procedures, document types, and results. Only a few courts would be able to afford to build such complex interacting systems. Attorneys would find it very difficult to use electronic filing technology when the requirements would change depending on the court. Few legal service
providers, system developers, consultants, or integrators would find it profitable to build systems supporting such diverse systems. Electronic filing will not succeed or be widely available without standards. [EFM 01, p. 4] The benefits are threefold: standards make it possible to create a market, are essential to the launch and viability of the system, and are the most important factor in determining costs. 6.1.1 Creating a market
The adoption of standards creates an interesting business opportunity. Inversely, where there are no technical standards, each court makes its own choices, the choices it considers best bearing in mind its own characteristics. The software developed for the court is custom produced, which makes it very costly, since only one copy is used. These high costs drive clients away and in the end make the market unattractive for the software manufacturer because few courts are able to cover the full cost of software development. The answer to this problem lies in standards. The standardization they provide makes it possible to use the same solutions for multiple clients. Open standards offer a more specific advantage. In contrast to proprietary standards, their documentation enables other companies to develop compatible products. In this context, a company can decide to invest in the development of a case management system (CMS) and, if it has the standard API, be assured that its system will be compatible with another companys EFM. These advantages are so significant that the companies which go head to head with each to win market share often freely choose to cooperate in the production of open, general or sectoral standards. The creation of the W3C (www.w3c.org) and Oasis (www.oasisopen.org) consortiums illustrates this phenomenon. The LegalXML consortium is an even more tangible illustration in the area of electronic filing. In that case, various representatives of the justice system and companies interested in developing specialized computer products met to develop standards that can foster the growth of the e-filing market.
6.1.2
System viability
In the absence of standards, the systems developed by different users will, despite their individual qualities, be different. It is not entirely clear whether the Canadian legal community will make the necessary investment in electronic filing if the proposal is essentially inefficient because of the multiple requirements in terms of format and identification and the specific arrangements that would have to be made with each client. This situation is not good for justice institutions either. Specifically, and aside from the prohibitive cost, the courts will experience various problems related both to the lack of interest in the legal community and to the difficulty circulating documents within the legal community. In the model proposed in the discussion paper, many of the advantages associated with the Internet-enabled approach are related more to standardization than to the specialization made possible by the business model. A centralized model may have its advantages, but we believe that the same benefits can be attained using more decentralized approaches if they are applied in a context where technical standards ensure interoperability. For example, centralizing all e-filing activities with a single service provider may foster smoother exchanges between justice institutions, but an interoperable system would do the exact same thing. 6.1.3 System costs
Establishing a standard, open technical framework will help reduce the costs associated with the transition to electronic filing in the Canadian justice system. The lower cost of technical equipment and professionals could make the difference between a scenario that benefits justice institutions and a scenario that increases their costs. Using open technical standards preserves the technological independence of institutions, which can turn to other partners and service providers as the need arises. They ensure the existence of competition for electronic filing, e-filing managers and even case management systems. They allow filers to choose among a number of filing service providers that will have to compete with one another in order to develop their client base.
70
9/11/02
The success of the e-filing project depends in large part on the success of the development of adequate open technical standards likely to permit interoperability. Without interoperability, the competition that must, according to the authors of the discussion paper, ensure ongoing improvement of the price-quality ratio for filing services vanishes: without an open standard, there is no contestable market. 6.1.4 Suggested approaches
6.1.4.1 Establishment of a Canadian Legal Information Council The lack of documentary and technical standards for the Canadian legal community is nothing new. In the 1990s, the Government of Canada put an end to its support for the Canadian Legal Information Council (CLIC); the council was then dissolved. Along with the council went the only forum capable of coordinating the production of technical standards for the legal community. That was not planned by any means, but the CLIC disappeared at the very time it was about to become especially important. Since then, standards have been introduced for a number of subjects that precede court decisions, such as the preparation of electronic judgments and citation modes. Those standards were developed in less-than-ideal conditions by a committee of the Canadian Judicial Council and the Canadian Citation Committee (CCC), [CJC 96, CJC 99 and CCC]. The CJC meets twice a year, and the member judges, while they twice wanted to address the adoption of technical standards that would be useful for Canadian courts, have neither the time nor the expertise to act as a primary source of technical standards. The Canadian Citation Committee was created on an ad hoc basis and is self-mandated for purposes of producing standards for the Canadian legal community. With the support of sponsors, the CCC produced a standard on citations in judgments that was subsequently adopted by the Canadian Judicial Council and implemented by the vast majority of higher Canadian courts. However, because it lacked the necessary means and because its members were busy with other duties, the committee was slow to complete the production of a new version of the standards for preparing judgments. Needless to
71
9/11/02
say, neither of these bodies is currently able to produce the technical standards needed to implement e-filing. This e-filing project highlights once again the need for a Canadian organization dedicated to development of the standards required by the justice system and the legal community. We in Canada do not have a forum that could produce open standards that would simplify the management of legal information and create a more open market for specialized software used by courts. The need is all the more pressing given that there are deep organizational divisions in the Canadian justice community. Each province and territory has its own administrative system. Even within those hierarchies, there are major differences. Judges are appointed by the federal government in some provinces, by the province in others. Some courts are unilingual, others bilingual. The administration of some courts is very centralized, while others enjoy a great deal of autonomy. And even within courts there are different groups judges, administrators, IT specialists and each of those groups holds part of the information needed to make technological choices. In this context, it is not surprising to find that the resources invested in information technologies are invested on the basis of immediate local requirements only and that in the end, the Canadian justice system as a whole has almost no common standard that can foster competition or quality in proposed computer solutions. This situation has definite ramifications. We believe that even a few technical standards could bring about substantial savings. Paradoxically, the biggest computer projects carried out in the Canadian justice community, such as those related to the integration of justice systems, contribute to this lack of national coordination. It is a bit as if the company that lands a major contract has very little interest in developing the clients autonomy in relation to the solutions it can offer. None of the major technological projects carried out or under way in Canada proposed or is producing standards for the legal community. The bigger the contract more lucrative, the less kind might say the more likely the contractor is to take an autarkic attitude toward the rest of the legal community. The only technical standards produced of late are those of the Canadian Judicial Council, which we mentioned earlier.
The rest of the justice community and the legal publishing sector continue to rely on the work done in the days of the Canadian Legal Information Council (CLIC). The most obvious example is the standard for designating decisions, which was produced in 1990 and continues to be photocopied and used as a base in preparing titles of decisions, even though it is not considered obsolete. The main benefits likely to result from the creation of a new Canadian body to establish technical standards in law would come from the studies that might be conducted at the organizations request and the consensual standards that would emerge. Topics the standards body might address include: preparation of the standards required for exchanges within the justice system, in particular electronic filing; preparation of standards that would be useful in selecting or even certifying the computer tools used in the Canadian justice system; identification of best practices for processing information identifying people and sensitive or personal information in court records and judgments; identification of best practices relating to intellectual property in the implementation of public access to court records; preparation of the standards needed to improve the circulation of court rulings like those related to the identification and naming of judgments; any other technical issue related to justice, such as best practices relating to Web sites, computer security, policy on the use of computer resources, etc. Without an organized and comprehensive approach, these and many other issues are examined, re-examined and examined yet again, always in tandem and at great expense, but never are resources spent to truly move them forward.
73
9/11/02
The council could take the form of a small body administratively supported by an existing organization. It would be given only the funds needed to operate and to carry out the studies request by its board. Its members would have to include key stakeholders, judges, court administrators, computer services representatives, and university or industry experts. 1. Suggested approach: Create a Legal Information Council comprising representatives of the primary stakeholders in the legal and court communities. The council would organize studies and would prepare the open technical standards needed to produce, exchange, distribute and archive Canadian legal documentation. 6.1.4.2 Preparation and adoption of standards The need for standards defining the format of messages, envelopes and other information exchanged between parties can be largely met by defining document types using XML. In the context of electronic filing, three types of XML document are frequently mentioned: Court Filing, Court Policy and Query&Response. DTD Court Filing is the big feature of e-filing projects. It is mentioned everywhere and by almost everyone. It is the reference technical standard for the project described in the discussion paper. Documents prepared using DTD Court Filing contain the information needed to send a document to the court and send the courts response to the filer. The members of the task force that designed it wanted it to provide everything that was needed for the court to determine where the document came from and what it contained. The scope of DTD Court Filing stops there; the aim is not to enter into evidence the information that is actually in the filed document. Development of this DTD began in 1999 and is still going on, and that strikes us as normal. The latest version is version 1.1. Without question, the most experimental elements of the current project and similar projects being carried out in Australia, Germany and elsewhere will shed more light on the potential for national adoption of this American standard. Hopefully, all these projects will contribute to the production of a
truly universal standard. That said, we believe that with a eye to the development of efiling in Canada, we cannot forego a detailed study of legal practices in order to identify the adaptations required by our Canadian characteristics. To be sure, that task goes far beyond the capabilities of the current project, but at least the project will validate the approach and will probably identify some of the limits of DTD Court Filing. The authors of the discussion paper mention complementing the exchange of information with a second DTD, DTD Court Policy, that would make it possible to communicate to filers the courts rules and policy on electronic filing. For example, the court will identify in a Court Policy document the items it will accept and its policy on service of pleadings. In a way, the document provides a schematic representation of some of the courts rules and sets them out so that they can be accessed by service providers and filers computer programs. A third and final DTD, Query&Response, was developed by court administrators in the United States to clarify which types of interaction with the courts data systems are permitted. A Query&Response document should stipulate which information is available depending on the filers user category, for example, a party to the case or a member of the public. 2. Suggested approach: Canadian experts should take part in forums in which open standards are developed for law, in particular forums that pertain to electronic filing, such as LegalXML and OASIS. 3. Suggested approach: A study of practices related to the filing of pleadings should be undertaken in order to ensure that DTD Court Filing, Court Policy and Query&Response meet the constraints of our rules of procedure. If necessary a version of the standards adapted to our needs should be prepared.
75
9/11/02
6.1.4.3 Communication, authentication and payment protocols Technically, a protocol is a consolidation of all the specifications that describe the conventions and rules to be followed when exchanging data. Its purpose is to ensure that exchanges are effective [OLF 02]. The issue of the protocols needed to create an open, interoperable e-filing environment is probably more complex than the discussion paper implies. The transmission of filings from the service provider to a courts EFM (filing management software) is only the first type of exchange that comes to mind. Conventions are also needed, for example, so that parties can know whether new documents have been filed in a case involving them and so on. And of course there are the necessary authentication and payment protocols. The protocols chosen by authorities in California are very simple and can guide us in our process, but these issues must also be examined in light of our own context. This is beyond the scope of our study, but we ought to mention, following Vincent, that an effort should probably be made to explore the potential of SOAP (Simple Object Access Protocol) for purposes of e-filing. SOAP makes it possible to exchange information in a decentralized, widely dispersed environment. It is based on XML and comprises three elements: an envelope that defines a framework for describing the message, a set of data coding rules and a convention for procedural queries and answers [Vincent 01; SOAP 01]. 4. Suggested approach: The protocols required for electronic filing, in particular authentication and payment protocols, should be subject to Canadian standards. 6.1.4.4 Definition of open technical standards for the courts filing middleware Programs have to be able to process the data received by e-filing. That is what makes efiling truly effective and attractive for courts. The discussion paper refers to middleware that links the courts management systems and the Court Filing messages received from the service provider. The nature of this element of the project is not fleshed out completely. Our study shows that this approach is increasingly necessary. It relies on the
installation of filing management software (EFM) right in the court and makes it possible to introduce open technical standards applicable even to input into the courts case management system (CMS). We believe that this approach is the best strategy for ensuring interconnection between the court and the e-filing community. The strategy is based on two key elements: a single EFM that uses specific document types, and a standardized application program interface (API) between the EFM and the CMS. Together these elements allow the court to choose its own software components. We therefore have to make certain that this approach will be used in its entirety so that the Canadian project can deliver the best possible results. 5. Suggested approach: Appropriate Canadian authorities should define and make public the terms and conditions of interconnection between court e-filing systems, including EFM requirements, such as uniqueness and standardized interface with the Case Management System (CMS). 6.2 Interoperability
Again, we should clarify the vocabulary at the outset. Interoperability is defined as the ability of heterogeneous computer systems to work together and provide reciprocal access to their systems. [] One of the fundamental requirements for communication between computers is the use of common protocols and languages. Interoperability therefore needs more than just good technical connectivity; it also needs elements like programming interfaces and standardized data formats. [OLF 02] (emphasis added) In our specific context, interoperability must take the form of standardized data formats such as those defined by DTD Court Filing, Court Policy and Query&Response. It also requires standardized communication, security and payment protocols between portals and justice institutions, as well as openly defined programming interfaces.
77
9/11/02
Communication protocols between filers and service providers portals have to be excluded from this definition of interoperability. Service providers can serve their clients in the way they deem best. Competition will decide which businesses are the most successful. However, a number of system properties should be guaranteed by the interoperability framework: The filer can file with any participating court using any service provider; in other words, all service providers with systems that meet the standards should be able to send a filing to a court that participates in the interoperability framework; The court uses only one EFM that meets the requirements for interoperability, that is, it must be able to exchange data with the service providers systems using the chosen protocols; The court uses its preferred case management system provided that system offers application programming interface that complies with the interoperability framework. The project carried out in Georgia (see section 3.5) explored the practical operation of an interoperability framework fairly similar to the one set out in the discussion paper but without all the required standards. The experiment was only partly successful, but even that success confirmed in a fairly significant way the potential of the approach. A more comprehensive interoperability framework would have better served the Georgia project. The Canadian e-filing project has to do better in this regard, which will in all likelihood be possible in view of recent developments, particularly the standardization work done in California. 6.2.1 Suggest approach
We believe that a general approach is the most likely to produce interoperability. We are referring here to the framework defined by justice authorities in California. We believe that the influence of those standards will reach beyond the 58 California counties. Justice
authorities in the state of Washington have already laid the foundation for their framework. It is a pretty safe bet that specialized software will increasingly comply with the California requirements and foster the implementation of an interoperable e-filing system. It is by no means unreasonable to consider adopting a normative framework like this in Canada. Despite the fact that our justice institutions are spread over a wide area, the only way to advance the development of e-filing based on parameters conducive to interoperability is for a significant number of federal courts to adopt such standards. 6. Suggested approach: Study, adapt and eventually adopt the e-filing interoperability framework developed by the California Administrative Office of the Courts interoperability. 6.3 Business model open market
According to the authors of the discussion paper, market forces will keep costs down and ensure continuous improvement of e-filing service. They write: While conceivably some agency of the government could act as an E-Filing service provider, they would be without the benefit of competitive forces. Monopolistic conditions do not produce client-focus competitive conditions do. Arguably in many cases government programming may be the preferred or only vehicle for the provision of services. Where sufficient demand exists, and public interest is not compromised, however, the market provides the competitive forces necessary for continuous cost/quality improvements and service innovation. [MURRAY 02, p. 10] (emphasis added) Such a convincing statement of the benefits of an open and competitive market urges us to ensure that the conditions needed to meet that objective are in place. With that in mind, we must address the cooperation agreement between the Minister of Justice, the minister responsible for the two courts involved, and Quicklaw and Soquij. That
agreement sets out the framework within which cooperation between the two courts and the two publishers will be developed. It struck us that the agreement could better translate the requirement of interoperability and competition that are central to the project described in the discussion paper. Article 7 of the agreement states that the agreement between the parties is non exclusive and that each party has the right to enter into similar agreements with other parties during and after the term of the agreement. However, unless we are mistaken, there is no reference to interoperability in the agreement. Nowhere do the private parties that develop the EFM (referred to as middleware in the agreement) undertake to ensure that the software will be open, that is, the specifications will be published so that other parties can develop compatible products. The only reference to potential competitors is in article 14, which deals with use of the EFM by other judicial and quasi-judicial bodies. On that point, the agreement states that service providers agree to grant no-fee licences to those other courts provided they give them equal opportunity in respect of any contract or arrangement related to a series of e-filing activities, such as: creation of the interface between the middleware and the courts information management systems; middleware maintenance; storage of filed documents; transmission to the judicial or quasi-judicial body of any document filed by the parties or their counsel; Internet posting of filed documents.
It is not for us to determine whether that arrangement is fair. However, we would have liked the agreement to ensure a more open e-filing market. It should be noted, in all fairness, that it was reasonable to think at the time the project was designed that compliance with LegalXML Court Filing would be enough to create
the desired interoperability. In fact, article 3 of the agreement states that the system that makes up the prototype must be compatible with the LegalXML Court Filing standard. Moreover, the aforementioned article 14, by requiring courts that use the middleware to give equal opportunity to service providers, implicitly confirms that it could choose one or more. The consequences of this lack of clarity also cannot be exaggerated. There will surely be other chances to adjust the focus. In this regard, we perhaps need to consider the development of an EFM that would not constrain user courts in any way. Perhaps the Canadian justice community will have to consider developing a tool of its own that would open up the e-filing market and the market for case management systems. Still, it is not rocket science. Another alternative for courts that wish to avoid a specific commitment to any one service provider would be to purchase EFM software developed elsewhere. Finally, we must not exaggerate the benefits of a competitive system. The authors of the discussion paper were perhaps overly enthusiastic when they wrote on page 4 that the model promotes homogeneous treatment of key issues related to privacy, security, copyright, etc. It seems on the contrary from a competitive market perspective that competition could in fact introduce different ways of dealing with the issues raised. Standards and practice guides are what will ensure consistent treatment of those issues. 6.3.1 Economic issues for the court
Following from the previous paragraph, but in a much more specific way and from a different angle, namely the economic interests of courts, we believe it is important to briefly discuss the consequences related to the nature of the information technologies market. For Shapiro and Varian, professor and dean, respectively, at the School of Information Management and Systems, University of California at Berkeley, transition costs, that is, the costs incurred when switching from one technology or service provider to another, are inherent in new information technologies. In their view, technology consumers who fail to take that aspect of the market into account are easy prey for those service providers
[SHAPIRO 99, p. 133]. There are three strategies available to technology consumers: bargain hard and win major concessions in exchange for locking into a particular technology; use multiple service providers and open systems; and anticipate the next selection point in an effort to get in a better bargaining position. In that context, open standards offer advantages for technology consumers as well as for the companies that develop them. Shapiro and Varian wrote: Consumers generally welcome standards: they are spared having to pick a winner and face the risk of being stranded. They can enjoy the greatest network externalities in a single network or in networks that seamlessly interconnect. They can mix and match components to suit their tastes. And they are far less likely to become locked into a single vendor, unless a strong leader retains control over the technology or wrests control in the future through proprietary extensions or intellectual property rights. [ the downside being the] loss of variety.. [SHAPIRO 99, p. 233] In this context, developing a solution based on open standards means that courts could realize short-, medium- and long-term savings. In the short term, an open standard provides access to a wider range of solutions that are by and large more economical. Let us consider two scenarios. Assume that in order to meet its e-filing, case management and document management needs, a court adopts a set of products closely integrated by one or more service providers through their own technologies. Once the deal is closed, the court is in a way locked into those companies. It will not be easy to get out of the situation other than by redoing almost all the analysis and implementation work and carrying out a series of conversions to the next service providers system. Such commitments to proprietary technology are occasionally unavoidable, however. Let us now look at another scenario. Assume there are standards like those adopted by justice authorities in California and that a court is looking for a service provider to buy and use an EFM that is compatible with the standardized API with its case management system and e-filing standards like LegalXML Court Filing. The situation is altogether
different. It is quite possible that there are many systems of this type available. It may even be attractive for a new company to enter the market, because the existence of standards implies that the investment can be spread over several sales. In the medium and long term, open standards enable the court to preserve the initial investment in implementation of the solution and also to benefit from competition among service providers that offer products compatible with the reference standards. A lock-in to a proprietary solution is minimized, while the opportunity to benefit from a competitive market is maximized. Today, there are few technical standards in the court information systems sector. This does not help bring down the cost of the software needed to manage a court; in fact the opposite is true. All too often, each court is considered an entity unto itself; each type of document and transaction is also considered unique, and costly and specific computer systems have to be developed at great cost to the computer company and, of course, even greater cost to the court. Standardization can reduce the cost of software solutions for the justice system. Developing open standards is good for companies, too. Shapiro and Varian wrote: Companies developing new technology collectively tend to welcome standards, because standards typically expand the total size of the market and may even be vital for the emergence of the market in the first place. [SHAPIRO 99, p. 236] The authors of the discussion paper seem to share this type of analysis. They wrote the standards are the key factor. Standards should become the major component of the technical approach to the project. 7. Suggested approach: Courts should avoid agreements that favour one e-filing service provider in order to promote the growth of a competitive market.
83
9/11/02
6.4
Business model private sector and ASPs
The authors of the discussion paper rightly point out that economies of scale reduce unit costs as volume increases, and that specialization increases quality and costs decrease when an organization becomes specialized [Murray 02, p. 9-10]. They go on to say that in simple terms, when the demand for a sufficiently homogeneous service is strong enough, merging that service with an e-transaction platform will improve quality and lower costs. Their analysis is compelling. Because technology has made distance meaningless today, increasing the number of isolated e-filing projects, court by court, no longer makes sense. The time is come to adopt a business model related to Internet development, the on-line application service provider model. ASPs provide their services through the network. In principle, the advent of ASPs was supposed to relive other organizations not specializing in the production of computer services of many computer chores which, once consolidated by the service provider, could be provided at a lower cost by true specialists. In retrospect, according to specialized magazines, the vision did not work perfectly or at least did not come about as quickly as anticipated. The general meltdown of high-tech companies hit the ASP sector hard. Moreover, big companies were not easily convinced that they could hand strategic functions over to these new service providers. Most opted instead to stick with more conventional forms of outsourcing. [BORTHICK 02] That clarification being made, the analysis and business strategy described in the discussion paper seem basically fair. A patchwork of projects carried out court by court would not only be costly because of redundant investment, but would very likely not work very well, if at all. In contrast, the approach whereby ASPs offer their filing services to filers is not only described in convincing manner, but also echoes the approaches generally taken by those who prepare similar projects abroad. In the United States, this is the predominant approach except in federal courts, not only in projects, but also for operating systems.
84
9/11/02
The California page of the LegalXML site lists eight service providers that offer products which comply with LegalXML standards and the ASP model [CW 02]. 6.4.1 Investments, costs and benefits
For courts, the proposed model includes only investments related to the implementation of a document management system. In some cases, those investments can be almost nil if, as the authors of the discussion paper seem to suggest, a court has an outside service provider manage its documents. We prefer to err on the side of caution and take the view that most courts would rather continue to manage their electronic documents themselves, even if it means spending money on the appropriate tools. But even at that price, there should be savings. Even if we challenge the very usefulness of information technologies, we have to believe that managing electronic data will cost less than managing data on paper, if only because files can be copied at no cost and circulated without human intervention. In the final analysis, the cost of managing court documents should be lower. That is the reason for moving to electronic methods. Electronic filing will not eliminate all of the costs associated with filing a document in court that filers have to assume today, but the cost will likely be lower than what is currently paid for mail and Internet services, and e-filing will be even faster than the best messenger in town. Other costs, such as the cost of copying documents and inputting information, will also be reduced by electronic technology. Finally, the proposed model has two more advantages for lawyers: it will enable lawyers to file documents with any court through their service provider, and it will benefit from competition between service providers to obtain the best prices and best services. The model is equally attractive for service providers. Technical standards will enable service providers to be part of a viable market that is more attractive for filers. It would be less worthwhile to serve isolated courts; clients would be more widely dispersed, and service would be more costly to deliver. Service providers can offer complementary
85
9/11/02
services. In many California e-filing systems, the external service provider receives a duplicate of the data and uses those duplicates to sell access to the information. It is up to companies to decide whether that market can be profitable. In the United States, the market has been described as interesting; many companies want to offer those services. It is probably appropriate, as we are about to adopt a model based on the risk for private companies, to try to measure that risk, if only to negotiate the best conditions for the justice system. The number of filings currently made with the major courts can be evaluated. We can also determine what it currently costs to send those filings by mail. Finally, we can evaluate the service providers operating costs using the sample of United States federal courts, which do not require any filing fees but are able to cover the cost of the entire system through the seven-cent-a-page cost of accessing court records. Moreover, the first consultation is free for the parties. We firmly believe that such a study would make it possible to determine the viability of the model. 6.5 Role of service providers
A surprising aspect of the e-filing model described in the discussion paper stems from the very broad role given to service providers. Service providers not only send the documents to the court, but are also responsible for providing a complete interrelated digital filing of decisions, transcripts, facta, summaries and follow-up information [Murray 02, p. 3]. Another function has been added to filing services. The authors write, the function of Document Management has been un-bundled, with Document Archival (court of record) services being retained by the courts, and search & retrieval provisioned by EFSP. [Murray 02, p. 10] The authors of the discussion paper seem to have chosen to combine two or three functions and delegate them as a unit to service providers. This combination would be less surprising in a context of a sole service provider, as in Singapore, but the authors of the discussion paper categorically and rightly reject that option. In the context of market competition prescribed by the model, many service providers forward their clients filings, and each filer has only a small part of the court record unless he or she
enters into a second relationship with the court. If it is to be able to provide access to the court record, the service provider must get or have a mandate from the court to manage its document holdings. From that perspective, filing management, distribution of the court record, and case and document management are separate functions. It would probably be better to deal with them equally separately. The role of e-filing service providers essentially entails forwarding to the court documents filed in the prescribed formats. That role also includes forwarding various messages from the court to the filer. Some models give the service provider other related functions. For example, according to the standards adopted by justice authorities in California, service providers authenticate filers and ensure the integrity of the filed documents [CEFTS 01]. Other service providers, if the rules of the court permit, provide electronic service services and so on. For those services, the service providers collect fees from their client filers. Another role for service providers relates to the delivery of legal information services. To deliver those services, service providers have to obtain from the court the entire electronic file, that is, the documents and other useful information, such as follow-up information. They can then offer the information to their clients for a fee and under the terms and conditions set by the court. In that scenario, the court usually obtains free access to the system to which it provides its information. A third role that service providers e-filing or other service providers can play is related to case and e-document management for the court. In that ASP role, service providers offer the court through the Internet specialized computer services for which the courts pay a monthly fee or on the basis of use. Application service providers can also manage a sophisticated document system, such as the network or database systems. These three roles are different, and amalgamating them makes the project more complex. It is not certain whether the objective of enabling the courts to avoid having to cover the cost of managing their documents is worth complicating a project that is otherwise very reasonable. Moreover, service providers will probably feel that they are entitled to be
87
9/11/02
compensated if they agree to such an increase in their responsibilities and costs. This situation creates the risk of us getting involved in undue marketing of public data which they will hold and creating needless problems with access to that information. We therefore suggest that it be avoided. 8. Suggested approach: Entering into separate agreements for e-filing services, information system services and document management services strikes us as being the most likely way to protect the interests of all the parties. 9. Suggested approach: The court retains ownership of the original version or the copy that can be used as the original of the electronic documents that comprise the court record. 10. Suggested approach: Courts should maintain their practice of avoiding any exclusive agreements on the distribution and use of court data. 11. Suggested approach: The agreement on management of its electronic documents between a court and a service provider must allow fair access to the documents for other service providers that might wish to establish information services using those data. Different relationships are bound to emerge between courts and service providers with expertise in document management. Some courts will continue to manage their own documents but will have outside service providers manage access and retrieval; in return, the service providers will give the courts access to their services. Other courts will opt to hand all management functions over to service providers or more simply outsource the management of their equipment used for those purposes. Still others will choose to have all those functions carried out by their own employees. In short, courts will have to determine which arrangements best suit their particular situation.
88
9/11/02
6.6
Security and accessibility
The authors of the discussion paper planned to include a certification body in the project in order to permit authentication of users. Public key infrastructures (PKI) promise great benefits in terms of authentication and system security support. The designers of most of the systems currently in operation opted instead to avoid that approach in favour of more conventional means of identification, such as user names and passwords. For example, the U.S. federal courts administration [and] justice authorities in California felt that that means of identification was sufficient. Sally Kay of the Law Society of New South Wales voiced the same opinion following a study of authentication methods used in numerous e-filing projects. Kay suggested staying away from public key infrastructures and sticking with good old passwords for the time being: It is the authors view that public key technology is not necessary in the court process for authentication or for the lodgement and retrieval of documents by users. It may be that in the future PKI becomes the de facto standard for security and authentication in the electronic world. It is not the standard at the moment and, in my view, will not become so in the foreseeable future. [] At present the standard for authentication is username and password, and while it has drawbacks, it is easily understood by users and relatively cheap to administer. [KAY 01b, p. 12] Simple identification with a user name and password also makes the filing system more accessible for people who want to represent themselves. That is why authorities in California rejected complex authentication mechanisms [CEFTS 01, pp. 19, 20, 21]. For all these reasons, we conclude that the current identification method, the one used by the project in the prototype phase (based on a user name and password), should be retained. 12. Suggested approach: The electronic filing system should, for the time being, use the most common method of identifying system users, that is, a user name and password.
89
9/11/02
6.7
Transparency, openness, access to information and legal information services
People are supposed to be familiar with the law, or at least be aware of it. The courts work openly; they need the transparency afforded by the public nature of court records and the accessibility of the decisions they make. In principle, the implementation of information technologies should ensure the public nature of courts and promote access to court records and judgments. Under no circumstances should the resulting access to court documents be less complete or more advantageous than the access our courts have managed to provide in the purportedly less efficient world of paper. Implementing new information technologies simplifies case management and reduces the cost of providing the public, the media and publishers with access to that information. Those whose tax dollars pay for the system should benefit from gains in productivity. In that connection, a committee of the United States Judicial Conference recently wrote, [] the federal courts recognize that the public should share in the benefits of information technology, including more efficient access to court case files. [JCC 01, A-5]. More specifically, information that is already available to the public, the media and publishers at no charge should continue to be free in the new environment. 13. Suggested approach: Access to court records and especially decisions should not be reduced as a result of the introduction of better-performing technologies in courts. The projects we examined, in particular the project carried out in U.S. federal courts, showed that the transition from paper to electronic records does not lead to particularly high costs. In Canada, e-filing infrastructures and infrastructures used to distribution the information will in all likelihood be put in place be companies. In that context, it would not be reasonable for Canadian courts to change their policy of free access in respect of those who wish to make them accessible. That position would be in line with the position recently recommended by the Council of Europe:
90
9/11/02
Access to legal database information should, in principle, be free of charge for all original legal texts. Where overriding economic circumstances require charging, this should be limited to cost recovery. Where the presentation of the published texts has been improved, thereby adding value, charging may be appropriate. The same charging regime for original legal texts should equally apply to private sector publishers and distributors. [CEO 01, section 4 of Appendix] 14. Suggested approach: Courts should continue to provide the public, publishers and the media with free access to their records. Records should be provided in the most convenient format available. Public access to court records is one of the thorny issues raised by the transition by courts to electronic documents. While it is fairly clear that courts have to provide on-site access to public records, it is less clear whether that same access has to be offered on the Internet. Should electronic media be used to the full, or should we endeavour to preserve the balance attained on paper? Comprehensive treatment of this issue far exceeds the scope of this study. The problem in defining public access to electronic court records is especially critical in the United States, where law digitization projects are farther along than in Canada. Some questions seem to have been resolved in a fairly homogeneous way, while others have drawn a wider range of answers. Common points relate to the fairly free distribution of court records associated with civil cases and refusal to distribute records pertaining to criminal cases (California and U.S. federal courts). On other issues, there are differences. For U.S. federal courts, access must be the same whether the person goes to the court in person or accesses the information using the Internet: the recommended policy will level the geographic playing field [JCC 01, p. A-7]. In California, the solution is different, although access to civil records is the same; however, records pertaining to cases in six more sensitive areas family law, youth and child custody, mental health, criminal law and harassment can only be consulted at the court [JCCAO 01b].
15. Suggested approach: Traditional access to court records must be maintained through the installation of terminals for that purpose in courts. Methods of providing remote access to electronic court records should be studied. Since the advent of the Internet, there has been conflict in the area of access to legal information between full us of the medium and respect for privacy. There is also ambivalence between active support for the free dissemination of law and the preservation of a somewhat favourable attitude toward legal publishers. To be sure, more extensive digitization of court records will fuel that conflict to some extent. Privacy considerations will be discussed in a later paragraph; first, we look at the other issue, the protection of trade in legal information. Courts should never attempt to limit the public distribution of public data in order to assist a market, no matter how important that market is to the justice system. There are many reasons for this. The main reasons are related to equal access and the workings of the legal publishing market. First, a court that impedes free distribution would create discrimination by tying access to users financial means. What that means is that people who could afford it would always be able to pay for access to publishers, while those with fewer resources would have no access. Second, protecting the market for companies that trade in public data eliminates the transparency of the cost of providing information services. In a context where public records are freely accessible, companies that wish to sell the information have to add value, and the price they can get from their clients will depend specifically on that value. If there are no alternatives offering free access, publishers are left with no incentive to enrich and enhance the public information on which, in practice, they have a monopoly. 6.8 Privacy
Coming up with the best answer to the questions that arise in seeking a balance between the need for access to information and transparency in the legal process and the need for privacy is by no means easy. The development of information technologies is pushing jurists and court officials to reexamine issues that seemed to be clear and resolved in the
paper world, where access to court records was always and is still public. It must be acknowledged, however, that in the paper world, access to court records was so fastidious that paper can be described as a very effective device for protecting our privacy. Things are decidedly different with electronic records. The authors of the discussion paper draw our attention to some of the possible consequences of removing the obstacles inherent in paper. They say, for example, that some people may be afraid to use the courts because they fear that sensitive personal information will be widely distributed. Other dangers were identified in the United States in the course of the PACER project. Justice authorities felt that some information, if it were to become widely accessible on the Internet, could endanger potential witnesses or law enforcement officers [JCC 01]. For that reason, they decided to defer by two years the posting of records related to criminal cases. Other disadvantages were taken into consideration by justice authorities in California [JCCAO 01a, see December 10, 2000, memorandum from Ronald M. George]. The problems are real, and the solutions are not simple. The solution put forward in the discussion paper, while it may at first have seemed clever, is in our view an ill fit. The EFSP model has two significant advantages over the traditional model with regard to privacy and copyright. Firstly, service providers can be expected to levy a fee for access to the materials filed on cases. This may be bundled as a subscription fee, or a per transaction basis. The fee constitutes a burden to the access of this material, equivalent in nature to that which exists in a paper based world, deterring the misuse of such material. [MURRAY 02, p. 11]. This, unfortunately, is the worst solution. It creates a largely indefensible economic barrier without offering a real solution to the problem of protecting sensitive information. What prevents access fees with remarkable effectiveness is public access. Companies that wish to compile information, put together records or draw up profiles and then sell access to those things to owners, employers and anyone else will pay with infinite gratitude the fees needed to pursue their business. In reality, such uses, which are
93
9/11/02
completely unfettered by an access fee, are certainly one of the biggest dangers to the dissemination of personal information. We must not kid ourselves: the basic solutions to this difficult problem of striking a balance between the openness of the legal process, public access and the protection of privacy are far more likely to come from the courts than from filing service providers. The courts will assume their responsibility and set the terms and conditions of access. That said, there have been many attempts to answer this difficult question. The Judicial Working Group in the United Kingdom is studying a narrower definition of court record [JWG 01]. The Council of Europe recommends that access to pleadings be limited to the parties [COE 01]. Other solutions may come from technical measures. It has been suggested that filers themselves take charge of preparing a Web-ready version of the documents they file. Our neighbours to the south had to deal with the same situation immediately with the development of the ECF/CM and PACER systems and various e-filing projects in California. Justice authorities in both jurisdictions adopted rules to specify not only the scope of, but also the limits on Internet access. On August 15, 2001, the U.S. Judicial Conference adopted a policy stating that records related to civil cases other than social security records should be as accessible on the Internet as they are in the court. Records must, however, contain a short version of some information, such as social insurance numbers, birth dates, names of minor children, etc. Records from criminal cases will not be accessible for the time being, but records related to bankruptcy cases will be accessible with alterations similar to those made to records from civil cases. Appeal records are treated the same way as trial records in the same case [JCC 01, JC 01]. The Judicial Council of California also recently adopted new rules on these matters. Its approach is to offer on the Internet the same access as at the court counter, except for records dealing with sensitive mattes (see above). It bears noting that access to records is provided on a case-by-case basis only. This means that anyone interested in a particular case involving Daniel Poulin would first have to search the register for cases involving him. Then, using the case numbers obtained through that process, the person could
access the cases one by one until he or she found the record he or she was looking for [JCCAO 01a, JCCAO 01b]. Privacy in the justice system can be studied from a wide array of perspectives. We have only scratched the surface. Privacy is certainly a major issue in the transition by justice community to electronic records.
95
9/11/02
Conclusion
Having concluded this review of the proposed technical and business framework for implementing a Canadian electronic filing infrastructure, we should return briefly to the main object of the project: electronic filing and the benefits it can bring to the Canadian justice system. Paper will not be king forever. In fact, for two decades, all information has been prepared using computers, yet in the justice community, information continues to be exchanged in the most inconvenient way, that is, in hard copy. Paper is certainly an extraordinary medium for reading and studying, but it is just as certainly a poor means of exchanging information between computers. That is often what is involved today. All that carefully prepared and checked information has to be re-input at great expense and inevitably with errors. Faced with the same problem, companies started using electronic data interchange (EDI) more than 15 years ago. Canadian courts are at last following suit. Electronic exchanges between filers will mean savings for everyone, but the court, which is the heart of the system, will benefit the most: in terms of efficiency, time and space. In these matters, the courts are dependent on what is sent to them. If a court wanted to move into the electronic age, the easiest way to do it would be to begin by receiving electronic records and therefore by implementing electronic filing. The discussion paper, the authors caution, is not an endorsement of any particular model. The authors goal in fact was to identify ways a cohesive e-filing system could be set up in Canada. All we can say at the end of this study is that they more or less accomplished what they set out to do. Four elements are particularly noteworthy:
96
9/11/02
the discussion paper provides a general framework rather than an isolated project;
the proposed framework is based on the use of technical standards (Standard as Key Enabler, the authors write);
the business plan draws on the private sector, a partner capable of finding and developing markets;
finally, the framework is based and this is not the least of its merits on the creation of a competitive environment; the authors note that monopolistic conditions do not produce client-focus competitive conditions do.
In our view, the path they lay out is a good one. Of course, we did point out a few small problems. We asked a number of questions. We even went so far as to come up with approaches we thought might strengthen and clarify the proposal developed by Murray and Pinder. These comments and suggestions should not cast any shadow over the proposal these authors devised. More importantly, our comments must not in any way be construed as a call to delay modernizing the Canadian justice system. Modernization is anxiously awaited. The only one of our suggestions that we will reiterate at this point concerns the creation of a Canadian Legal Information Council. A body of this type would be able to commission studies and projects related to preparation of the technical standards required by the courts and, from a broader standpoint, the entire legal community. A legal information council could carry out consultations and ultimately adopt the technical standards that are so terribly lacking in the Canadian legal community today. This proposal and the dialogue it sparks may be our chance to acquire this tool not only to clear the way for electronic filing, but also to develop the other standards and practices that are needed in our field of endeavour.
97
9/11/02
We now have to call on the judiciary to take a close look at the proposal put forward by Murrray and Pinder. It sets out a bold new approach that will enable our courts to move toward even more efficient use of new technologies. The influence of and enlightened support from the judiciary are essential in getting an initiative of this type off the ground. Others will also have to examine the merits of the proposed model, in particular administrators of the major Canadian judicial institutions, but we are confident that they, too, will recognize the potential of this proposal.
Daniel Poulin Montreal, March 2002
98
9/11/02
Suggested approaches
[1.]
Create a Legal Information Council comprising representatives of the primary stakeholders in the legal and court communities. The council would organize studies and would prepare the open technical standards needed to produce, exchange, distribute and archive Canadian legal documentation
[2.]
Canadian experts should take part in forums in which open standards are developed for law, in particular forums that pertain to electronic filing, such as LegalXML and OASIS
[3.]
A study of practices related to the filing of pleadings should be undertaken in order to ensure that DTD Court Filing, Court Policy and Query&Response meet the constraints of our rules of procedure. If necessary a version of the standards adapted to our needs should be prepared
[4.]
The protocols required for electronic filing, in particular authentication and payment protocols, should be subject to Canadian standards
[5.]
Appropriate Canadian authorities should define and make public the terms and conditions of interconnection between court e-filing systems, including EFM requirements, such as uniqueness and standardized interface with the Case Management System (CMS)
[6.]
Study, adapt and eventually adopt the e-filing interoperability framework developed by the California Administrative Office of the Courts interoperability
[7.]
Courts should avoid agreements that favour one e-filing service provider in order to promote the growth of a competitive market
99
9/11/02
[8.]
Entering into separate agreements for e-filing services, information system services and document management services strikes us as being the most likely way to protect the interests of all the parties
[9.]
The court retains ownership of the original version or the copy that can be used as the original of the electronic documents that comprise the court record
[10.]
Courts should maintain their practice of avoiding any exclusive agreements on the distribution and use of court data
[11.]
The agreement on management of its electronic documents between a court and a service provider must allow fair access to the documents for other service providers that might wish to establish information services using those data
[12.]
The electronic filing system should, for the time being, use the most common method of identifying system users, that is, a user name and password
[13.]
Access to court records and especially decisions should not be reduced as a result of the introduction of better-performing technologies in courts
[14.]
Courts should continue to provide the public, publishers and the media with free access to their records. Records should be provided in the most convenient format available
[15.]
Traditional access to court records must be maintained through the installation of terminals for that purpose in courts. Methods of providing remote access to electronic court records should be studied
100
9/11/02
Bibliography
ATTGEN 99
Ontario Court (General Division) Toronto E-Filing Pilot Project Executive Summary of the Evaluation Report, 1999, Source: http://www.ontariocourts.on.ca/superior_court_justice/notices/toronto_ region/efile.htm
BORTHICK 02
Borthick, S., Outsourcing Lessons From The xSPs , Business Communication Review, January 2002, pp. 18-21. Source: http://www.bcr.com/bcrmag/2002/01/p18.asp
CEFTS 01
Electronic Filing Technical Standards Project Technical Standards, Version 6, March 9, 2001, Administrative Office of the Courts, State of California, Source: http://www.courtinfo.ca.gov/reference/cefts.htm
CEO 01
Recommendation Rec(2001)3 of the Committee of Ministers to member states on the delivery of court and other legal services to the citizen through the use of new technologies, adopted February 28, 2001, Source: http://cm.coe.int/ta/rec/2001/f2001r3.htm
CF 01
Halvorson, M., and R. Himes, XML Standards Development Project Electronic Court Filing Draft Specification (Court Filing DTD), LegalXML Organization, 2000, Source: http://www.legalxml.org/DocumentRepository/ProposedStandards/Cle ar/PS_1001_2000_07_24.htm
CJC 96
Felsky, M., et al., Standards for the Preparation, Distribution and Citation of Canadian Judgments in Electronic Form, Canadian Judicial Council, Judges Computer Advisory Committee of the Canadian Judicial Council, May 1996, see: http://www.integeractif.com/normes.htm
101
9/11/02
CJC 99
Poulin, D., et al., A Neutral Citation Standard for Case Law, Canadian Judicial Council, Judges Computer Advisory Committee of the Canadian Judicial Council, May 1999, Source: http://www.lexum.umontreal.ca/citation/en/standard/standard.html
CLIC 90
Standards for Case Identification, Canadian Legal Information Centre, 1990, Source: http://www.lexum.umontreal.ca/citation/en/html/clic.html
CMECF
CM/ECF Frequently Asked Questions, U.S. Court of International Trade, Source: http://www.uscit.gov/cmecf/PDF/faq.pdg
CW 02
E-Filing Products/Project Abstracts, LegalXML, California Workgroup, Source: http://www.legalxml.org/California/files/Abstracts.htm
EFM 01
Yuan, M., and S. Spohn, EFM-CMS Interface Requirements, Version 7, July 22, 2001, Source: http://www.legalxml.org/california/files/CMS_API_Rqmts7.pdf
EFS 02a
Product Information: The Electronic Filing System, Electronic Filing System Web site, Source: http://info.efs.com.sg/PrdtInfo_EFS.htm, visited January 12, 2002.
EFS 02b
Electronic Filing System Web-Based Application (EFS FE-Web): Frequently Asked Questions (December 2001), Electronic Filing System Web site, Source: http://info.efs.com.sg/FEWeb_FAQ.htm, visited January 12, 2002.
EPAC GEORGIA 00a
EPAC, EPAC Help System, Source: http://epac.fct-cf.gc.ca Request for Proposal : Electronic Court Filing Interoperability Project, April 2000, Source : http://gsulaw.gsu.edu/gsuecp
102
9/11/02
GEORGIA 00b
Georgia Courts Automation Commission Electronic Court Filing Interoperability Pilot Requirements Document, September 12, 2000, Source: http://gsulaw.gsu.edu/gsuecp
JC 01
Federal Judges Recommend Policy on Electronic Access to Court Files, News Release, Administration Office of the U.S. Courts, August 15, 2001, Source: http://www.uscourts.gov
JCC 00
Tactical Plan for Court Technology, California Judicial Council, January 26, 2000, Source: http://www.courtinfo.ca.gov/reference/documents/tactical.pdf
JCC 01
Report on Privacy and Public Access to Electronic Case File, Judicial Conference on Court Administration and Case Management, June 26, 2001. Source: http://www.uscourts.gov/Press_Releases/att81501.pdf, visited on February 12, 2002.
JCCAO 01a
Parilli, J.C., et al., Public Access to Electronic Trial Court Records, Report, Judicial Council of California, Administrative Office of the Courts, December 11, 2001, Source: http://www.courtinfo.ca.gov/rules/report/documents/rules06.pdf
JCCAO 01b
New Rules Expand Public Access to Electronic Trial Court Records, Press Release, Judicial Council of California, Administrative Office of the Courts, December 18, 2001, Source: http://www.courtinfo.ca.gov
JISC 01
Washington State Court Electronic Filing Technical Standards Draft, Washington State Judicial Information System Committee, 2001, Source: http://www.courts.wa.gov/efstandards
103
9/11/02
JWG 01
The Judicial Working Group Annual Report 2001, Judicial Working Group, Court Services, London. Source: http://www.courtservice.gov.uk/info/reps/judicialworkinggroup/reportj wg.pdf
KAY 01a
Kay, S., Security and Authentication Requirements in the Court Process (Part 1), Proceedings of the 3rd Australian Conference [on?] Law via the Internet , UTS, Sydney, 28-30 November 2001, 16 pages.
KAY 01b
Kay, S., Security and Authentication Requirements in the Court Process (Part 2), Proceedings of the 3rd Australian Conference [on?] Law via the Internet , UTS, Sydney, 28-30 November 2001, 12 pages.
KELLOW 01
Kellow, P., The Federal Court of Australia Electronic Filing and the eCourt On-line Forum, Proceedings of the 3rd Australian Conference [on?]Law via the Internet , UTS, Sydney, 28-30 November 2001.
KENG 01
Keng, C.B., Practice Direction No. 3 of 2001, Supreme Court of the Republic of Singapore Web site, Source : http://www.supcourt.gov.sg/policies/pd3-01.pdf, visited on February 17, 2002.
MAGNUS 1999 Magnus, R., e-Justice: The Singapore Story, Proceedings of the Sixth National Court Technology Conference, Los Angeles, 14-16 September 1999. MURRAY 01 Murray, W.A., Strategic Partnerships for Electronic Service Delivery, presentation at the ACCA Conference, September 25, 2001. MURRAY 02 Murray, W.A., and G. Pinder, Discussion Paper: E-Filing Service Provider Model, version 1.3, February 6, 2002.
104
9/11/02
NELSON 01
Nelson, S.D., and J.W. Simek, Electronic Filing in the Federal Courts: A Status Report, e-Filing Report , 1(2), January 2001, pp. 4-7. Source: http://www.cybersleuther.com/services.htm, consulted on February 18, 2002.
OCONNOR 00 OConnor, T., E-Filing Projects Around the Nation, E-Filing Report , 1(1), November/December 2000. Source: http://www.cybersleuther.com/services.htm, visited in January 2002. OXCI 00 Himes, R., Open XML Court Interface (OXCI) Architecture Working Draft, October 15, 2000, Source: http://www.legalxml.org/california PACER PACER Public Access to Court Electronic Records, Brochure, Source: http://pacer.psc.uscourts.gov/documents/pacer_brochure.pdf PCMECF PACER Case Management/Electronic Case Filing Notice, NYSB Court Web site, Source: http://www.nysb.uscourts.gov/pdf/newnotice.pdf, visited in February 2002. Q&R 01 Halvorson, M., XML Standards Development Project - Electronic Court Filing Query and Response Draft Standard, August 2, 2001, Source: http://www.legalxml.org/california ROBERTSON 99 Robertson, J., Electronic Case Filing in the Federal Courts, Proceedings of CTC6, Los Angeles, September 1999. SCCFC 01 Cooperative Agreement, version 1.3, 10 December 2001, 11 pages. (also available in French; see Entente de cooperation) SCS 00 Bytes and Clicks: Harnessing Information Technology, Annual Report 2000 Millennium Issue, Supreme Court of Singapore, Source: http://www.supcourt.gov.sg/publications/annualreport/index_bytes.ht ml
SHAPIRO 99
Shapiro, C., and H.R. Varian, Information Rules: A Strategic Guide of the Network Economy, Harvard Business School Press, Boston, 1999, 352 p.
SOAP 01
Simple Object Access Protocol (SOAP) 1.1, W3C Note 08 May 2000, Source: http://www.w3.org/TR/SOAP/#_Ref477795601
USC 02
U.S. Courts Administrative Office, About CM/ECF, February 2002, U.S. Courts Web site, Source: http://www.uscourts.gov/cmecf/cmecf_about.html, visited on February 18, 2002.
USCIT 00
U.S. Courts Administrative Office, Summary of CM/ECF, February 2000, U.S. Court of International Trade site, Source: http://www.uscit.gov/cmecf/PDF/cmecf.pdf, consulted on February 18, 2002.
VINCENT 00
Vincent, W.T., LegalXML and Standards for the Legal Industry, 53 SMU L. Rev. 1395, Fall 2000, Source: http://gsulaw.gsu.edu/gsuecp, visited on January 2, 2002.
VINCENT 01
Vincent, W.T., Georgia Courts Automation Commission Court Filing Interoperability Pilot Lessons Learned Document, December 4, 2001, Version 1.0.2, Source : http://gsulaw.gsu.edu/gsuecp, visited on January 12, 2002.
VINCENT 97
VINCENT, W.T., What is the best format for E-CT-Filing?, 1997, Source: http://gsulaw.gsu.edu/gsuecp, visited on January 12, 2002.
VINCENT 99
VINCENT, W.T., Electronic Court Filing Shopping List, March 25, 1999, Version 0.1, Source: http://gsulaw.gsu.edu/gsuecp, visited on January 12, 2002.
106
9/11/02
9.1
Web sites and organizations E-Filing Project Advisory Committee (EPAC), Site: http://epac.fctcf.gc.ca.
EPAC
OLF 02
Grand dictionnaire terminologique, Office de la langue franaise, Quebec, site: http://www.granddictionnaire.com
OASIS
Organization for the Advancement of Structured Information Standards (OASIS), site: http://www.oasis-open.org.
LEGALXML GOL CCC
LegalXML Consortium, site: http://www.legalxml.org Government On Line, site : http://www.gol-ged.gc.ca Canadian Citation Committee, site: http://www.lexum.umontreal.ca/citation
107
9/11/02
E-filing Service Provider Model Feasibility Study FINAL REPORT Dr. Elspeth Murray, Assistant Professor Queens School of Business March 2002
108
9/11/02
Executive Summary
The purpose of this report is to provide a detailed commentary on the overall feasibility of a single window private sector hosted Court E-filing portal (transaction hub E-file model) based on the LegalXML Standard. The primary deliverable is an opinion concerning the feasibility of the single window model (e-hub). Other deliverables include: a heightened awareness among stakeholders of the Service Provider Model, and a preliminary assessment of support for the model.
In order to achieve the objectives of the study as outlined above, two primary vehicles for analysis were utilized: literature reviews and stakeholder interviews. The analyses sought specifically to: Review alternate approaches to e-filing including e-filing system as an extension of each court, and private versus public sector hosting of a single window approach Identify and discuss the critical issues and risk factors relating to the introduction of electronic filing services in the Courts, including privacy, copyright, and security Examined each of these issues against the ASP model Made recommendations regarding strategies for addressing critical issues and risk factors
The study found that: There is support among a broad constituency of stakeholders for e-filing
109 9/11/02
Many stakeholders (e.g. practitioners) do not differentiate among different forms of e-filing, while others care a great deal (e.g. individual court administrations)
A single window electronic filing service provider (EFSP) model has some significant benefits over the individual e-filing approach, primarily in the areas of cost and platform for the future
A private EFSP model has significant benefits over a public sector EFSP, primarily in the areas implementation success and cost
110
9/11/02
Purpose:
The purpose of this report is to provide a detailed commentary on the overall feasibility of a single window private sector hosted Court E-filing portal (transaction hub E-file model) based on the LegalXML Standard. The primary deliverable is an opinion concerning the feasibility of the single window model (e-hub). Other deliverables include: a heightened awareness among stakeholders of the Service Provider Model, and a preliminary assessment of support for the model.
111
9/11/02
Approach Undertaken:
In order to achieve the objectives of the study as outlined above, two primary vehicles for analysis were utilized: literature reviews and stakeholder interviews. Additionally, the analyses underpinning various sections of the report are summarized in Table 1.
Task Review and summarize e-hub/ASP business success factors (private sector and consortium-led enterprises) Review and assess e-hub/ASP models in other jurisdictions
Approach Literature review
Literature review Interviews
Review and assess proposed e-hub/ASP model
Review business case Business partner interviews, project team interviews
Review and assess alternate approaches (including those in use in other jurisdictions)
Review business cases for alternate approaches Review approaches in other jurisdictions
Identify critical issues
Literature review Stakeholder interviews
Review critical issues in light of proposed ASP model

Review ASP business case
112
9/11/02
Provide overall commentary on proposed ASP model
Synthesis of above analysis
Table 1 Summary of Approach Undertaken
113
9/11/02
The single window E-Filing Service Provider (EFSP) Model
The concept of an e Service Provider is not new. In fact it has been around since the advent of business computing in the early 60s, when so-called Service Bureaus rented computing time on their mainframe computers to a variety of clients. The Federal Government was one of the largest clients for Service Bureaus such as Computel Systems and Canada Systems Group. In this early incarnation, clients rented telecommunications lines from the large telecommunications providers, Bell Canada at the time, and using these phone lines, dialled up access remotely (i.e. from their own offices and computer terminals) to the mainframe computer. The clients did not own the hardware (i.e. the mainframe computer) nor the applications (i.e. the programs) that ran on the mainframe, but essentially rented both from the Service Bureaus. Each client had its own application and space on the mainframe. All that resided at the clients office were terminals and phone lines.
Todays eApplication Service Providers (ASPs) provide exactly the same service in an almost identical fashion, with several important differences. The terminals have been replaced with powerful personal computers. The dedicated phone lines leased from the telecommunications providers have been replaced with digital networks and the Internet. The applications and information used in these need not be dedicated to one client but can be easily shared by many. These significant differences have given rise to many variations on the ASP theme. For example, there are many ASPs that rent Microsoft Applications (e.g. Windows, Word, Powerpoint, etc.) to small businesses. Generic advantages of the ASP model include: Lower total cost of ownership (for both hardware and applications) Pay-as-you-go terms
114
9/11/02
A solution to IT skills shortages Improvement in coordination among business partners Shares the investment burden of investing in new IT
The E-Filing Service Provider (EFSP) model is essentially a specialized ASP model. Conceptually, an EFSP would provide a common E-filing/document management platform that would interface with individual course case management and records management systems. In essence, individuals (with their own hardware and applications) involved in the court system could interface with one point of contact (the EFSP) to freely share needed information. Specifically, the EFSP model would allow for single window access for the initiation of cases and filing of documents into multiple courts, across multiple jurisdictions. It would also create a consolidated case file from trial court to final appeal.
In reviewing the business case (Appendix 1) for the EFSP model, the specific advantages described include: The cost, risk, and benefits of such a system could be shared across the entire community, providing an affordable approach to electronic service delivery for all jurisdictions. It provides for the seamless flow of cases between jurisdictions thereby improving coordination among trading partners and reducing costs It provides for a comprehensive cross-linked digital warehouse of decisions, transcripts, factums, summaries, and in process information not currently available, thereby potentially adding new value to the justice system
115
9/11/02
It promotes the consistent treatment of key issues relating to privacy, security, copyright, etc.
It facilitates access for litigants by providing a common interface and single registration for the initiation of cases and filing of documents, regardless of court or jurisdiction, thereby potentially streamlining the entire process
These described advantages are consistent with those demonstrated by comparable ASP models. Generally speaking, ASPs work and can work well providing the concept is executed properly.
Critical Success Factors for ASPs include: Provision of a solution that meets needs of users and/or solves/addresses significant issues related to current modes of operation Agreement on standards necessary to implement the solution one that all stakeholders will use Appropriately knowledgeable and skilled organization operating the ASP (this includes hardware and applications expertise as well as specialized knowledge related to the industry or industries it serves) Viable business model revenue and cost structure dependent on critical mass of users Effective stakeholder management
116
9/11/02
Against these criteria, the EFSP business case appears viable on the surface. A more detailed review of these criteria is provided below.
4.1
The Need
E-filing, in some form, will happen across the judicial system. It is not a question of if, but a question of when and in what form(s). E-filing has been experimented with by several jurisdictions already, with Ontario being the first and arguably most advanced in Canada. Several jurisdictions in the United States have also experimented with various efiling approaches. In some ways, to ask a question about the need for e-filing is like asking a question about the need for a telephone or a personal computer. One is reminded of IBMs prediction in the early days of computing, that only one computer would be needed in all of North America. The computer they envisioned was far less powerful than the digital watches that McDonalds gives away in their Happy Meals. They key is that in innovation, particularly that of a more radical nature, history has demonstrated that individuals are not particularly good at envisioning the future for some new invention/approach, until they have experience with it. Only through use, can true potential be identified. We cant imagine having a conversation today about the need for a telephone. Similarly, our children will find it amusing in 10 years time (or less) that there was ever a debate about e-filing of court documents.
Nevertheless, successful inventions typically address a need, articulated or unarticulated. It is often the unarticulated needs, that are difficult to identify. As such, surveys of users needs are sometimes not very enlightening. As a case in point, surveys of the need for 3Ms Post-it Note technology, were very disappointing and clearly indicated that there was no articulated need. What the surveys didnt reveal, however, was that there was a huge unarticulated need if only people could be shown what the advantages were. As such 3Ms marketing team undertook a blitz in a small mid-western city in the United
States and worked with individual organizations to demonstrate the benefits of Post-it Notes. It was this novel approach to marketing that unleashed the potential of the technology and the rest is hist
In the case of e-filing, multiple interviews and a handful of surveys have indicated that there is a need for e-filing. In one of the more relevant studies conducted, a 1999 survey on Electronic Services Inititiatve Market Research, commissioned by the Attorney Generals office of British Columbia and conducted by R.A. Malatest & Associates, provides some interesting data. The study was not focused on an EFSP model; however, several of the findings of the study validate the need for electronic filing and also shed light on the EFSP model versus individual e-filing systems.
When asked to identify what they considered to be their requirements with respect to desired benefits of electronic filing, respondents answered Efficiency Time Savings Improved access to case information Reduction in costs associated with filing
Efficiency and time savings can be achieved with individual e-filing systems. Improved access to case information can be achieved with both individual and EFSP systems; however, the greatest potential reduction in costs can only be achieved through the EFSP model.
118
9/11/02
In addition to identifying the sought after benefits for electronic filing, the study also sought to identify legal organizations concerns with respect to the provision of such services. They key issues identified, are as follows: Cost Lack of need for a new system (i.e. current technology not obsolete) Fee Structure Technological capabilities Efficiency issues Training requirements Inadequate support
In short, there are a range of issues raised as possible factors that could preclude the adoption of e-filing in general, regardless of the approach individual or EFSP. The study found that concerns about costs were consistent across low and high volume organizations. In contrast, technological capabilities, reliability and training requirements do not appear to be major concerns for those firms surveyed. I do not believe this to be an accurate reflection of the true state of affairs. In fact one of the significant barriers to adoption of any new technology or process, is the degree to which it differs from current practice. As long as any new e-filing approach requires minimal training and/or changes to technology platforms, or coincides with a planned-for technology upgrade, and assuming the cost equation is favourable, adoption rates for any form of e-filing should be high.
119
9/11/02
Continuing in this discussion of needs, interviews identified the reality in many law practices sole or larger firms. There is not a great recognition of the true unit costs of providing services, and in particular costs for filing. For example, when asked about costs of filing, there is often limited recognition of the cost of standing in line for an hour, the cost (in terms of time) of travelling back and forth to the courthouse, the opportunity costs of not being able to do something else while waiting in line, etc. All of this to say that in defining a reasonable cost for e-filing, the lack of true cost awareness among potential users may be a major issue. It may be necessary to undertake a significant education campaign to create awareness.
In summarizing the above discussion, from a user perspective there are likely two distinct levels of adoption: adoption in principle and adoption in practice. I believe there is little available to argue against e-filing in principle: it is the way the world is moving and once in wide-spread use, the benefits will be significant across the system. This issue is more adoption in practice. In considering the move to e-filing, practical considerations are predominantly cost, technological capability, and the hassle factor. If e-filing costs more in the short term, regardless of longer term system-wide cost savings, it will likely slow down adoption. Similarly, if the technological hassles are too great in the short term, also slow down adoption.
4.2
Standards
The EFSP model relies on the use of a standard electronic envelope for the filing of electronic documents. This envelope would contain information such as the party filing the document, date and time stamping, processing instructions etc. The EFSP business case describes the use of LegalXMLs Court Filing 1.0 standard as a potential standard for use. Note that this standard does not concern itself with the actual document. Each court/jurisdiction will have their own standards regarding the filed document. While it
would be advantageous to extend the standard to the document, as it would significantly enhance legal research capabilities, this is not part of the proposed EFSP model.
Key questions to answer about the LegalXML standard are: Who developed the standard? i.e. is it robust? What acceptance for the standard exists? i.e. does it have early adopters?
In reviewing available information on LegalXML, obtained primarily from the www.legalxml.com website, it appears that of all standards under development, LegalXML has one of the best chances of becoming the de facto standard in the legal community. This is so for the following reasons: It has a critical mass of members, and the members are very credible The LegalXML COURTFILING 1.0 standard is the first one to be proposed The organization has adopted a transparent approach and methodology to developing LegalXML, and one built upon the following solid principles:
o Form Partnerships o Workgroups Led by Chairs o Over-inclusive and Optional o Agree to Disagree Through Identifiable Extensions and Change Management o Two Interoperable Implementations What these principles mean in practical terms, is that LegalXML: Works through other groups to promote the standards it develops (form partnerships)
Has focused workgroups (led by Chairs) working on sub-domains of the standards in order to speed up the standard setting process Has all necessary elements included in the standard, but there is no requirement to use certain elements (over-inclusive and optional) Ensures that there are ways in which even non-XML content can be included in a court filing. However, non-standard content may only appear in places where the workgroup has agreed it may appear. Thus, there is a standard way to deviate from the standard and thus ensure individual needs are met. (Agree to Disagree Through Identifiable Extensions and Change Management)
Will not finalize a proposed standard unless there are at least two interoperable implementations
There are other legal XML efforts underway, including: UELP, XCI, National Center for State Courts/Lexis, Washington State Bar XML Study Committee, the Joint Technology Committee of COSCA and NACM, National Conference of State Legislatures, and Legal Electronic Data Exchange Standard (LEDES) (time and billing). It would appear, however, that LegalXML COURTFILING 1.0 has an excellent chance of becoming the standard for the reasons articulate above.
4.3
The Organization
As an entity, and to be successful, an ASP must possess the following: Technical expertise telecommunications, hardware and application Business management expertise Specialized industry knowledge and credibility Customer service orientation
122
9/11/02
Technical expertise is critical as the entire model relies on having a network infrastructure, hardware and applications that work well and are available 100% of the time. Specific technical expertise required includes: networking, application development, and database management.
Business management expertise is an obvious requirement, as successful ASPs need to ensure sustainability. Specifically, fees for service must be set appropriately so as to address not only ongoing costs of operation but also to ensure future upgrades to both hardware and applications as both evolve in response to technological advances. ASPs are technology-based enterprises and must be managed as such; therefore, specific experience in running technology-based enterprises is a critical requirement.
Specialized industry knowledge is important for several reasons. First it ensures that requirements specific to an industry are known and factored in to the operating model. Second, experience and credibility within an industry generally leads to a network of contacts and reputation within an industry that are essential for attracting partner organizations and customers to use the ASP. Credibility implies not only an ability to execute but that the organization is trusted to guarantee critical security and privacy provisions. Many ASPs have failed not because they werent well thought out, but simply because potential users were not confident in its ability to deliver on the promise and/or safeguard the confidentiality of the information provided. With a limited number of users, the business model is not viable and the expected benefits not achievable. Many ASPs have also failed because they were unable to attract a critical mass of customers soon enough, and simply ran out of cash. In addition, the costs to acquire a customer proved to be extremely high, especially if customers had established relationships with vendors of complementary products and services.
123
9/11/02
Finally, ASPs are first and foremost providers of a service. If there is no customer service orientation or track record, the ASP will not be successful. This has been another common failure mode for ASPs, many of which have been technologically superb entities but entities that viewed technological superiority as the prime goal and users as a necessary evil.
In practical terms, QuickLaw provides a good example of what to look for in a service provider: Deep and broad knowledge of the legal community and its challenges and opportunities Technology and applications development expertise and experience, albeit in one line of business only Trusted source of information Successful business for almost 30 years; business infrastructure already in place Critical mass of potential customers already established (customer acquisition costs low) Track record in customer service
What the courts would need to ensure, is that entrants into the ASP market could fulfill the above criteria. As such, there may be a requirement for some sort of certification process for new entrants. For example, in the ASP industry in general, many fly-bynight operators came in with a great sales pitch and the concept fully articulated, but with limited execution capability. In others words, they pitched vapour ware.
124
9/11/02
Another common failure mode has been to run out of cash before securing enough customers to make the business viable. Competition is rarely a bad thing; however, in the case of EFSP, it will be critical to ensure that any service provider can meet some fairly stringent viability criteria. Additionally, I am unsure of whether or not the market for EFSP is sufficiently large to sustain multiple service providers if court filing was their only line of business. Initially, it is possible that EFSP may be most successful as a complement to an existing line of business as the market for e-filing services matures. It may not be possible to sustain multiple providers if electronic filing is the only service offering.
To summarize, an ideal ASP must possess the following characteristics: Ability to acquire customers at low cost (usually through established client base) Superb applications development, data centre, database and network expertise Customer service orientation
4.4
Viable Business Model
As discussed briefly previously, ASPs must possess a viable business model. In practical terms, this means that revenues must be greater than costs and that the resulting margin must support ongoing upgrades to the hardware and applications. Both revenues and costs are contingent on having a critical mass of users to drive not only revenues but spread the costs. ASPs are capital-intensive organizations. If breakeven cannot be achieved within a reasonable period of time, the ASP will not be viable. As no specific business model has yet been proposed, it is not possible to conduct an assessment. I can, however, indicate that there are many viable ASPs in operation with sound and varied business models, and the attributes as identified above.
4.5
Effective Stakeholder Management
Any ASP, or organization for that matter, requires an ability to factor in, on an ongoing basis, the evolving needs of its stakeholders. As such, there is a need to capture these evolving needs and ensure ongoing stakeholder satisfaction. Depending on the nature of the ASP (industry consortium versus private corporation), different vehicles exist to accomplish this need. In the case of industry consortia, a steering committee made up of representatives from partner organizations is often utilized. In the case of a private corporation, the board of directors often fulfills this requirement, sometimes in conjunction with an advisory board consisting of stakeholder representatives (e.g. primarily customers). In essence effective stakeholder management relies on two things: a customer service orientation and an effective governance structure.
Again, as no particular governance structure has been proposed, it is not possible to provide an assessment. In general, however, we do know from extensive research on industry consortia (e.g. an alliance) , that they are more difficult to make work as viable enterprises, than single entities (e.g. corporations) primarily due to the existence over time of competing interests among alliance partners, as well as the attendant coordination costs.
4.6
Summary
To summarize to this point, conceptually the EFSP model described in the business case makes sense. It appears to address a need in the marketplace. The LegalXML standard appears to be a useful and viable standard. There can be no assessment at this point as to the nature of the organization that would execute the model; however, there are certain
126
9/11/02
requirements that any such organization must fulfill. The same can be said for the business model and stakeholder management practices. Additionally, the ASP model has been demonstrated to be a viable across a wide range of industries and applications.
127
9/11/02
Stakeholder Analysis
There are many stakeholders in the proposed EFSP model. These include: Practitioners Judiciary Court administrations Private sector justice service providers Public Politicians Other jurisdictions
5.1
Practitioners
The Malatest study referred to earlier, as well as individual interviews, validate that there is a demand for e-filing services and support among lawyers. The Malatest study focused on only one model, so these data are not useful for indicating support for any particular model over another. It is my opinion, however, from various discussions, that lawyers dont necessarily care which model of e-filing prevails as long as the costs for the service are as low as possible, that the technology hassle factor is minimal, and that future possibilities re: e-filing will be built into the system (i.e. so that they wont have to convert to yet another system at some point in the near future).
128
9/11/02
What we also know from technology adoption in general, is that it is often difficult for users (in this case lawyers) to imagine what might be possible in the future with a given technology, until theyve had some first hand experience with it. For example, in the case of e-filing, if the EFSP model were to be adopted, the potential future services available from such a platform might include such things as: access to a comprehensive integrated information base of pleadings from other jurisdictions, connections to land registry systems, etc. In short, it is difficult and perhaps premature to ask potential users whether or not they would value a particular service until theyve had experience with efiling.
5.2
The Judiciary
The judiciary is likely to care a great deal about which e-filing approach is undertaken. Burning issues around e-filing include: the potential increase in accessibility to information it provides, copyright of the content as well as confidentiality and security.
In terms of the potential increase in accessibility of information, the real issue centres around the concern that if information is more easily available (i.e. with a few mouse clicks as opposed to standing in line at a court), gratuitous cerfing and a form of court case voyeurism would become the norm. This possible scenario can be easily avoided by, as is the case now, by charging a fee for the convenient access to such information. If you want to stand in line, then theres no charge.
In terms of copyright issues, the central argument goes something like this: if my pleadings are going to be available for everyone to see and perhaps use in the future, I want some recognition for that. Issues around copyright and uses of materials have been dealt with for years in academia if you use someone elses work to build your own
argument and/or study, then you reference that work so that everyone knows where it came from. In fact in academia there are organizations that record the number of citations an academics work has received. This citation index is in fact used to validate the worth and performance of an academics research and overall impact on a field - the more citations, the better. It is the highest form of flattery to have ones work utilized and built upon to move a field of inquiry forward. Academics want others to use their work and work to make it more easily accessible. As a case in point, many academics now post their working papers and articles on the web for free access. I believe there to be strong parallels between academics and lawyers as they relate to copyright issues. Much of the success of such a system relies upon an honour system among a group of educated professionals, but there are sanctions for any abuses. If you use someone elses work, you must reference it. If you dont, you may be cast out of the profession. Interestingly, because an academics work is easily accessed, it becomes very easy to spot abuses (i.e. lack of citation) to the system. The counter argument, of course, is that universities pay academics to do research and share their ideas. Lawyers are paid only for the services they provide if they are particularly adept at putting together an argument that is more persuasive than that of others then they might be in effect sharing their competitive advantage for free with others. What is also possible, however, is that freely accessible pleadings that cite the original arguments, are in fact free advertising for those originators. So the spin off effect may be more positive than in any way negative.
Another alternative to consider regarding the use of pleadings, is to look to the music industry and establish some form of royalty and/or pay-as-you use system. This would be easy to administer via the EFSP. Comparable models for such a system already exist, as the music industrys response to the overwhelming popularity of the now defunct download music for free websites, has been to establish and charge for a pay-as-youplay system.
130
9/11/02
In terms of security issues, they are always of concern; however, approaches to security have evolved very quickly. For example, VISA and Mastercard report comparable if not somewhat lower levels of fraudulent activity online relative to that related to traditional off-line payment approaches. Security systems have moved significantly from the guns, gates , and guards approaches of the past, to the 3As type approaches in which security software allows organizations to identify (authenticate), provide selective content and applications access (authorize), and manage (administrate) large numbers of users. In short, security approaches have evolved rapidly to address many security related concerns and although still a major issue, security-related issues can and are dealt with very effectively.
Beyond these considerations, the judiciary is also concerned with the impact e-filing will have on the functioning of the court. Concerns include: Will I have to use only electronic documents? What if the system fails, and I need some vital information that I cant get?
The obvious answer to the first question is no. Again borrowing an example from academia, at Queens School of Business, we teach an MBA program via video conferencing technology. In doing so, we rely exclusively on the electronic submission of assignments. As one would expect, the transition to this format has been easier for some than others. Many professors have trained themselves to grade entirely in electronic format, thereby utilizing the most advanced features of various Microsoft products. Others are at the other end of the spectrum, and continue to print every assignment off, mark the papers up, and spend time then transcribing scribbled notes into email responses. Still others are somewhere in the transition from all paper to all electronic. A key to success in the academic environment has been to allow for both ends of the spectrum fully paper and fully electronic while providing training and
ever more useful tools to enable fully-electronic use of documents. A well thought out transition plan has been a key to success.
It should also be noted that there are technological innovations nearing commercialization that will facilitate true user friendly electronic documents. Early experiences with electronic books (not well thought out or received by the public) have paved the way for newer versions that allow for much of the functionality that their paper based ancestors provide. For example, pages can be easily marked, and crossreferencing is actually easier (via a version of the hyper-link) with electronic documents. There is also a technology called digital ink that promises the ability to print electronic documents on very thin screens that resemble pieces of paper. By putting many of these ultra-ultra thin screens together, one could essentially have a re-writable book to which any story could be downloaded instantly.
In summary, it is reasonable and prudent to assume that an EFSP approach would not result in an overnight conversion to a paperless judiciary. In fact experience has shown this not to be the case. At the same time, however, as technology becomes more pervasive, it is also reasonable and prudent to assume that the transition from paper based to electronic documents can be facilitated and planned for.
In answer to the second question, regarding backups, many corporations and financial institutions rely exclusively on digital information and have instituted robust back up and disaster recovery approaches. Any reputable and quality ASPs would have to demonstrate these capabilities, and this should certainly be a significant criterion in any EFSP certification approach.
132
9/11/02
5.3
Court Administrations
I believe the court administrations may be the toughest group to convince with respect to the EFSP model. This is the case for several reasons: It represents a significant change to how they operate It may represent job redefinition It may be perceived to reduce the control (although this will in fact not be the case) over filing procedures It may be perceived to reduce technology costs but increase operating expenses (e.g. shift the paper burden from practitioners to the courts) It may be difficult to compare costs as it is likely the various courts cannot report unit costs (i.e. costs not recorded by activity) Each of these concerns will be discussed separately.
Even though the business rationale may be sound for EFSP, it will introduce change and if this is not managed properly, any e-filing initiative may experience problems due to lack of buy-in and/or understanding of the new approach. One of the major failure modes for information technology investments is the lack of change management effort applied to the investment. It will be critical to manage any transition to an EFSP as a deep and significant change to the courts operation. Similarly, if e-filing represents a shift in roles and responsibilities for court administration personnel, there will be this aspect of change to manage as well.
In terms of perceived lack of control, this will in fact not be the case in reality, as each court will have the ability to control their own data. As a major customer of the EFSP,
the courts will in fact wield a great deal of control. In addition, a certification process would provide yet another lever to ensure customer service.
One of the main driving forces behind e-filing and in particular the EFSP model, is the reduction in the total cost of ownership (TCO) for information technology and applications. The value proposition for most ASPs is in fact the reduction in the total cost of owning technology. Experience to date across a variety of different ASP models, suggests that the total cost of ownership (including hardware, software, maintenance, etc.) is reduced in the order of 30% by moving to an ASP model.
Apart from the reduction in the cost of owning and operating information technology, an EFSP model also promises to streamline operations and as such reduce transaction costs. It may be difficult, however, to accurately calculate the true savings that may be realized in this area because most courts dont practice activity based costing. As such, it will be difficult to ascertain the true costs for a court of undertaking an activity such as processing a file, retrieving a file, storing a file, etc. This difficulty in quantifying the cost of the current mode, will make it problematic to compare apples to apples in looking at any e-filing approach.
5.4
Politicians
EFSP is consistent with e-government initiatives and is certainly taking advantage of well known technologies. As long as security and privacy issues are taken care of, and the development of such an approach doesnt result in a front page article in the Globe and Mail about yet another failed technology project, politicians are likely to see the benefit(s) in e-filing. As another consideration, governments are actively trying to outsource non-core activities and/or those activities for which they have limited
expertise and experience. They are also heavily engaged in private/public partnerships to affect such outsourcing as a vehicle for managing risk. As such, the private-sector EFSP model may be more consistent with this thinking.
5.5
Public
The public at large has greatly increased expectations about the use of technology in every aspect of their lives. I would suggest that many people would be staggered to learn that wide-spread e-filing does not already exist, as the concept has been alive and well in corporations for the last 20 years. Of concern to the public, however, would be the confidentiality of information in the cases in which they are involved. There are already safeguards and policies in place for this, in the current paper-based world, and any reputable EFSP would need to ensure these are adhered to. This is perhaps where a certification process would be useful. Like the Good Housekeeping seal of approval, EFSPs would need to undergo security and privacy audits, and the like.
5.6
Private Sector Justice Service Providers
There are a host of other service providers to the legal community. It is possible that one or more of these may be interested in becoming an EFSP. For example, Crimson Logic (developers of a full suite of automated legal support services in Singapore) has set up an office in Markham Ontario and has asked to be included in the project as they are interested in positioning themselves as an EFSP.
It is also possible that other going concerns, such as ASPs operating in other industries, may decide to enter the justice arena. As mentioned before, competition is rarely a bad
135
9/11/02
thing, and in the case of EFSP can serve to drive exceptional service, pricing and speed of implementation.
5.7
OtherJurisdictions
In reviewing the state of e-filing across jurisdictions in Canada, several have e-filing initiatives underway. BC and Ontario certainly have the mass of users to undertake EFSP on their own. BC, however, given the recent change in government and massive cutbacks, appear to have pulled back on their own initiative, and may be interested in this model. It is unlikely that Ontario would be, as the government has already invested heavily (i.e. as part of the Integrated Justice Project) albeit with limited results to date. The Atlantic and mid-western provinces would likely be very interested in any EFSP for the obvious economic advantages it would provide. It is highly unlikely that any of them individually could cost justify any e-filing approach. Additionally, with typically limited expertise in dealing with technology, EFSP provides the added benefit of risk sharing among participants. At the same time, there may be issues around technological capability for these jurisdictions. Quebec is a separate consideration, and it is not clear as to whether or not they would be interested in EFSP at this point. In short, a conservative EFSP should assume that initially, provinces other than Ontario, BC and Quebec would likely come on board quickly.
However, wide spread adoption of a new technology/approach is often contingent upon actually having something to show, as well as having a strong and influential lead partner. As we all know there is a great deal of smoke and mirrors with many technology related ventures. First to market with something that actually works, can often swing the sceptics over quickly. In addition, a change in government in any of the 3 provinces pegged as potential late-adopters, might open the door for participation in and EFSP model. Finally, even with relatively low usage by the majority of practitioners,
the Supreme Court may serve as the ultimate quality stamp of approval and thereby attract more users to the EFSP model it endorses.
137
9/11/02
Review of Alternative Approaches
In reviewing the EFSP model as proposed, against alternative approaches, it is important to step back and first review the drivers for considering alternate approaches in the first place. The EFSP business case notes the following as drivers:
Federal government wide push for government online Advances in technology, most notably the internet Shortage of relevant IT skills Spiralling costs of owning and managing technology (hardware and applications) High costs of coordination among stakeholders of the justice systems Desire among stakeholder groups to create more value (not yet defined) from their activities
In responding to these drivers, there are several options: The EFSP model a single window approach E-Filing as an extension of each court
Within the EFSP model, there are also two options: Private sector organization (e.g. separate entity) hosting
138
9/11/02
Public sector (e.g. alliance or consortia) hosting
Before reviewing the pros and cons of each alternative, it is instructive to take a lesson from history when looking at this issue of alternate approaches. The particularly relevant history lesson concerns to invention of the telephone and its subsequent rollout across North America. In the early days of the telephone, there were many different telephone companies providing the service, each with its own set of cables strung across the skylines in major cities. This created chaos and huge duplication of costs, for in order to be connected to another party, that party had to belong to the same telephone company (i.e. system) because each telephone company had its own system like different electrical plugs in different countries. This state of affairs was clearly unworkable in the sense that to ensure 100% connectivity, one had to subscribe to each and every telephone company and its proprietary system. The solution was to create giant switching operations. This too became unwieldy and in short order caused significant consolidation among the telephone companies and eventually settlement on one standard. It was a long and painful process, however, and one that in retrospect many wish could have been averted.
Fast forward to 2002, and electronic filing is facing much the same situation. Each court could have its own system, but that would mean that each and every party wishing to connect to a particular court, would have to have a system capable of connecting. If a party needed to connect to 3 different courts, s/he would need 3 different systems, unless each court utilized the same standard. Having one standard clearly makes a great deal of sense, for all concerned. However, if there is one standard, why not take the model to the next logical step, which means that rather than each court building and maintaining a full blown technology infrastructure, the technology infrastructure is centralized with one or more EFSPs. Of course there are other considerations as well. In creating a framework
139
9/11/02
against which to evaluate these alternative approaches, these other considerations include: Cost the ability of the alternative to reduce costs (technology based) for individual stakeholders Coordination the ability of the alternative to improve coordination across the system and reduce coordination costs for individual stakeholders Needs how well the solution meet the initial needs of individual stakeholders Implementation risk how risky is the solution re: ease of implementation Future potential what sort of platform for the future might be created Control how easy will it be for stakeholders to exert control (i.e. have needs responded to on an ongoing basis) Skills how well does the solution address the shortage of IT skills Experience in other jurisdictions how well has the model worked in other jurisdictions (if applicable) Each of these will be discussed in turn as they relate to each of the alternatives.
6.1
Separate E-Filing
The separate e-filing model is by far the easiest to implement, as there is no need to coordinate efforts across organizations or jurisdictions. It also has the highest potential to meet individual courts needs and provide for the highest degree of control over future development. However, of the three alternatives, it has the lowest impact on costs both on a system-wide basis and for individual users and the courts, as there is limited opportunity to spread the costs across a large base of users. There is and will continue to
be a severe shortage of skilled information technology specialists, and separate e-filing initiatives will continue to run up against this shortage of skills and may in fact not be able to attract sufficiently skilled individuals to work on and maintain their individual systems. In addition, with often times limited negotiating power, individual jurisdictions may pay too much for their systems. Thus separate e-filing has a low impact on addressing the IT skills shortage and on costs. Separate e-filing also provides limited options for the future. For example, if each court continues to have its own e-filing system, not much will have changed save electronic filing instead of paper documents. Separate e-filing might be construed by some, in the words of Michael Hammer, to be paving the cow paths. The best analogy is to think of the still persistent problems that exist with multiple email systems in theory the mail should move seamlessly among then, in reality, it doesnt work that way they are still different.
In short, the advantages of separate e-filing initiatives are jurisdictional control, ease of implementation, and fulfillment of individual e-filing needs, whatever those might be. This option also represents what I would classify as a status quo option, in that it represents automation of an existing model of operation each jurisdiction pursues its own course.
6.2
EFSP
A single-window approach, whether public or private, has the greatest opportunity to lower costs across the system and costs of e-filing for individual users and court administrations. This is primarily because of the lower unit costs of delivery for such services, as the total costs could be spread over a larger user base. As cases in point, a U.S. study by Andersen Consulting (now Accenture) found that a typical banking transaction costs $1.07 at the branch, $0.27 at the ATM and $0.01 on the Internet. Similarly, a travel reservation costs $10.00 if agent assisted, and $2.00 on the Internet. A
stock brokerage transaction costs $150.00 at a full service broker, $69.00 at a discount broker, and $10.00 on the Internet.
In terms of coordination, the EFSP model would improve the ability of different jurisdictions to coordinate their activities to a greater extent than is possible today. It would also provide a platform for future functionality not yet possible or possible with the separate e-filing approach. The EFSP model also addresses the IT skills shortage issue to a greater extent than the separate e-filing approach, by creating an entity that could attract scarce technology skills and that would have greater negotiating power with vendors. I would also argue that the likelihood of successful execution is higher with the EFSP model, as the best technologists could be attracted to set up the organization. This may not be the case with separate e-filing approaches, as hot IT specialists are looking for technology-centric organization to work for and hone their skills something not typically equated with public sector organizations for which technology is often considered a necessary evil.
On the other hand, the EFSP model most likely could not address the specific needs of all jurisdictions to the same extent as the separate e-filing model would. Similarly, each jurisdiction would have more control over e-filing and its direction, in the separate efiling model. It might also be easier to implement separate e-filing as there would be limited requirement to work across jurisdictions. As noted above, however, this benefit in terms of coordination costs would likely be offset by the increased risk in execution. Another caveat is that individual jurisdictions may not have the negotiating power with vendors that multiple jurisdictions would, and might pay too much for their individual efiling systems.
142
9/11/02
In short, the advantages to pursuing an EFSP model are most notably in the areas of cost, access to IT skills, future potential, and cross-jurisdictional coordination. While difficult to quantify, the EFSP model represents a significant departure from the current filing approaches, and is not merely automation of the existing ways of filing but represents a significant change to the ways things are done, and may provide options for the future that separate e-filing doesnt. 6.3 Public versus Private EFSP
The public versus private sector entity argument is an ancient one in the public sector, the central issues being: Can the public good be served adequately by a private entity? A private entity is in business to make money; therefore wouldnt we always be paying more for the services than if the public sector provided them? What happens if the private entity goes out of business will we be stuck?
Counter arguments to these issues are as follows: Many years of experience in outsourcing at both the federal and provincial levels, has shown that the public good can be safeguarded appropriately. A certification process as discussed above would help in this respect. Ongoing performance reviews also help to mitigate the risk associated with this. Additionally, some sort of private-public sector joint venture might be appropriate. It may, however, be difficult to convince a private sector entity that this sort of arrangement might be in their best interests. Finally, it may all be possible to consider some sort of agency (arms length to the government) structure to facilitate the creation of a quasi-public sector EFSP.
143
9/11/02
Experience has shown that it is uncommon for public sector organizations to deliver the same service levels at a lower cost than the private sector, even if theoretically possible to do so. Historically, there are a myriad of reasons for this, not the least of which is the profit motivation of private organizations as well as a focus on customers. As such the price to the end user is often the same, if not lower. Experience in outsourcing arrangements also indicates this to be the case.
Private sector entities have a profit motivation, but this serves to motivate it to provide better service, lower prices, more options, etc. to ensure they stay in business.
Private sector competition will ensure that there will be at least one company alive and well. If there is a market, there will be a company. Table 2 summarizes my overall assessment of each of the alternatives against the identified criteria. A score of LOW implies minimal impact on the identified issue. A score of MODERATE implies some impact on the identified issue. A score of HIGH implies a significant impact on the identified issue.
Note that there is no weighting factor applied to the criteria; however, I believe the private sector model to have several advantages (as outlined in the table) discussed earlier with respect to critical success factors for ASPs in general.
Separate E-Filing Cost Coordination LOW LOW
EFSP Public MODERATE MODERATE

144
EFSP - Private HIGH HIGH

9/11/02
Needs Control IT Skills Ease of Implementation Future potential Success in other jurisdictions
HIGH HIGH LOW HIGH
MODERATE MODERATE MODERATE LOW
MODERATE LOW HIGH MODERATE
LOW TBD
MODERATE TBD
HIGH TBD
Table 2 Summary of Comparison of Alternative Approaches
145
9/11/02
Critical Issues and Risk Factors
Critical success factors for the execution of a private entity EFSP model include: Provision of a solution that meets needs of users o reduction in coordination costs o reduction in technology costs o provision of additional value add however defined o security o privacy o availability Agreement on XML standards Appropriate organization(s) found/created Critical mass of users achieved early Effective governance structure
Each of these critical success factors translates into an identifiable risk factor that must be managed and/or mitigated. In any new venture there are always risks. The key is to identify the major risk factors and employ mitigation strategies and/or provide contingency plans to address each of the major risks. In reviewing the critical success factors just described, they can be categorized as follows:
146
9/11/02
Technology risks technology doesnt work, is late, not user friendly Standards risks slow or limited adoption of standards Organizational risk inability to put together the right organization User risks slower than anticipated adoption Stakeholder risks lack of agreement among stakeholders regarding EFSP execution, limited buy-in that slows adoption
In addition to these entity based risk factors, there are other risk factors: Public perception (e.g. concerns about privacy, security) Politicians perception is not favourable
Each of these risk factors and potential mitigation strategies will be discussed in turn:
Strategy 1: Choose exceptional organizations to be EFSPs A highly successful organization with an established track record, reputation and customer base in a complementary line of business to e-filing, is the best strategy for mitigating the technology, organizational, user and stakeholder risks. I suggest it would be prudent to look for several established organizations and/or start-ups with an exception team (e.g. contacts, knowledge, experience) to become the first EFSP. It would be very risky to rely on a pure start-up to execute this model.
Strategy 2: Adopt LegalXML Courtfiling 1.0

As discussed earlier, this standard appears to have the best chance of success. It is the most advanced, it has a large constituency behind it, it is evolving and is inclusive of many stakeholder needs. One is reminded of the battle for the VCR standard. Sonys BETA standard was the better technology but it was the VHS format that one the day because of its critical mass of device manufacturers and users. Thus the mitigation strategy is thus to choose the standard, quickly build some critical mass around use, and it will become the de facto standard.
Strategy 3: Manage implementation with court administrations as a major change As discussed earlier, I believe the court administrations to be a significant group of stakeholders that could make or break EFSP. They will need to understand how it will affect their jobs (in a positive fashion in this case), what they will need to do to make it a success and whats in it for them. In other words, the entire move to e-filing regardless of which approach should be managed as a significant organization change not just as a new piece of technology. E-filing will fundamentally change how courts operate over time, and the transition needs to be carefully thought out.
Strategy 4:
Manage stakeholder expectations and perceptions
A major communications strategy should be put in place to manage stakeholder expectations and perceptions. This strategy would also have to include the media. Specifically, the benefits of and EFSP approach need to be clearly articulated and progress on the execution of the model would need to be communicated on a regular basis. The build it and they will come approach could be disastrous.
Strategy 5: Manage public perceptions
148
9/11/02
I would not propose a very proactive strategy to manage public perceptions, but rather that a contingency plan be developed to handle any potential crises e.g. breach of confidentiality etc. These must exist for the current approaches, but should be re-thought in light of EFSP.
Strategy 6: Develop a certification process for EFSPs I believe this to be a critical part of managing stakeholder perceptions, as well as ensuring quality of service delivery. There are a number of possible approaches to certification. First, the courts could utilize a third party certifying agency such as those that give websites the privacy and security stamp of approval and essentially outsource this process. At the other end of the spectrum, the courts could undertake their own certification process and create a certification body that would establish criteria and conduct the audits. An intermediate approach would be for the courts to partner with one of the established on-line certification authorities to develop a custom approach that would meet EFSP needs, and one that could be carried out by the outside parties.
In any new venture, there are risks. In summarizing the risks as they relate to an EFSP, my opinion that is there are doable strategies for mitigating the key risks, the most important of which is to find a superb team to undertake the EFSP.
149
9/11/02
Summary Commentary
In summary, it is my assessment that e-filing will become the standard mode of filing court documents, just as the use of the electronic documents and files is the norm in many corporations and is becoming the norm in even traditionally conservative industries such as banking. The real questions are related to the timing of e-filing (when is the right time) and the mode of e-filing (EFSP versus individual e-filing approaches).
With respect to the timing issue, I would suggest that the time is ideal for e-filing to be launched, and ideal for the following reasons: All the technology pieces exist and are commercially available at reasonable cost i.e. hardware, databases, applications, telecommunications/network infrastructure Suitable and sufficiently developed standards (i.e. LegalXML) exist The conceptual model is viable and has been and is applied successfully in other contexts (i.e. ASPs) Individuals are comfortable enough with computers and the Internet, that adoption rates would be reasonable
In terms of the mode of e-filing individual court systems versus EFSP I would suggest that the benefits of the EFSP model outweigh those of the individual court efiling approaches. In addition, I believe that an private EFSP has benefits over a public sector based organization. In particular: Lower cost system wide and for individual courts
150 9/11/02
Platform for the future the only way to create one Implementation risks are much lower for private sector entity vs. public sector
In addition to these benefits, history has demonstrated, via the not-too-distant experiences related to the advent of the telephone, the futility and expense associated with attempts to establish multiple standards and proprietary systems among people and organizations that do and must communicate regularly with one another. Thus it is forward thinking to approach e-filing from an EFSP perspective and build the ability to have ubiquitous access to electronic court filings right from the beginning.
As a final comment, success in any new venture relies primarily not on having a viable business model, but on the ability of a committed and passionate team to pull all the pieces together and make the business work. Bottom line: EFSP success will rely heavily on the organization(s) chosen to execute the model, with the first one as the critical one.
151
9/11/02
The Courts In A Digital World: Building A Canadian Electronic Filing Marketplace James C. Middlemiss, LL.B. March 2002
152
9/11/02
Executive Summary
Legal jurisdictions around the world are motoring down the digital highway and embracing electronic filing as means to enhance their justice systems. While some jurisdictions in Canada have joined this movement, most remain on the sidelines and run the risk of becoming judicial road kill in a cyber world.
The obstacles preventing some jurisdictions from introducing electronic filing range from a lack of monetary and technical resources to a lack of "critical mass" in filings to justify the up-front investments needed to bring their courts into the 21st Century.
A proposal under discussion between the Federal and Supreme Courts and the private sector has the potential to eliminate some of those obstacles and digitize the flow of information among litigants, their lawyers and the courts by using the Internet and secure Web-based technology. This is a practitioner's perspective on this proposal and a look at the benefits, challenges and risks associated with it.
1.1
How would it work?
As part of the federal Government Online Pathfinders Project to explore alternative approaches to secure delivery of government services, the Supreme Court of Canada has commissioned discussion papers to foster dialogue on the feasibility of Canadian courts adopting an Electronic Filing Service Provider (EFSP) model. The EFSP model could revolutionize how the legal community manages its paper flow and help create standards for e-filing of documents in courts across Canada
153
9/11/02
What is the EFSP model? Basically, it is a secure Web-based electronic gateway that legal counsel would use to file documents in electronic form. This so-called "single electronic window" for filing documents with courts would also allow for secure exchanges of documents among litigants. The EFSP effectively operates as an electronic courier and potential online information broker identifying subject matter, timestamping it, and processing documents and accompanying notices through the filing system.
To ensure a high level of service and technological expertise was available, the EFSP model would comprise one or more third-party Application Service Providers (ASPs) private sector businesses offering custom-designed electronic applications or services through a Web-based portal on a user-fee or subscriber basis. At present, three entities have agreed to work with the Federal and Supreme Courts to investigate the feasibility of the model: SOQUIJ, a Quebec legal research and data provider; Quicklaw Inc., a legal research and data provider; and Juricert Services Inc., an initiative of the Federation of Law Societies offering digital authentication for members of the legal community
To ensure confidence in the quality of information submitted electronically and allow it to be managed and "mined" (e.g., searched, indexed, etc.), the EFSP prototype would be based on the LegalXML Court Filing 1.0 standard an international protocol for electronically formatting and tagging key information in court documents.
154
9/11/02
Adopting the open-based LegalXML standard eliminates the likelihood that one technology vendor would build a proprietary system that would effectively shut out other parties and create a monopoly. It means any organization wishing to offer e-filing services need only create a LegalXML Court Filing 1.x compliant interface, allowing them to accept and direct filings from any litigant to any participating court.
1.2
The Opportunities In An EFSP Model
This practitioner's perspective discusses the potential benefits to the legal profession and justice system in creating an electronic filing marketplace using EFSPs. These include: Provides law firms with a low-cost entry into e-filing. Eliminates the need for law firms to develop their own electronic connection to courts, relying instead on "thin-client" solutions, where a computer, Web browser, Internet connection, and word processing or document creation software (such as Adobe Acrobat) is all a firm needs. Reduces the need to continually upgrade software applications that connect to the court. Creates an integrated, comprehensive database of legal pleadings that can be searched across multiple jurisdictions, fostering the advancement of legal research. Allows the courts to acquire technology at little cost and permits them to automate some of their processes. Spreads the cost of technological development across many users, providing for economies of scale and lower filing fees. Allows courts to transfer the court record more easily between jurisdictions.
155 9/11/02
Provides law firms with an effective data back-up service something many lack.
Creates standards for filing court documents electronically and eliminates the likelihood Canada will have 12 different e-filing models (10 provinces, two federal courts), each possibly using different technology and imposing different obligations upon law firms in terms of software usage.
If the courts finance the development and operation of their own e-filing systems, there is an incentive to increase the number of documents/filings required by the courts as a means of recouping investment, when the focus should be on reducing the number of documents required to bring a matter before the courts.
As for e-filing in general, the legal community should see benefits in: Reduced courier, duplication and other disbursement costs for litigants. Reduced data entry costs. More efficient use of legal and court staff time (i.e., won't be photocopying documents, shuffling files from point A to B. Rather, staff can focus on servicing clientele). More efficient document management.
1.3
The Challenges In An EFSP Model
This perspective also discusses potential challenges for the legal profession and justice system in the ASP-based e-filing model and possible solutions to overcome the hurdles:
156
9/11/02
The EFSP model has privacy issues. Creating an integrated searchable database on the Web opens the doors to many more members of the public accessing information than has traditionally been the case. As such, personal information could be more widely circulated than under the present model, which could negatively affect litigants and innocent third-parties involved in litigation. For example, in sexual assault cases, the facts detailing the offense could be easily accessed and disseminated among voyeurs. Sensitive details about divorce cases could get wider exposure than would normally be the case. Currently, courts have varying privacy and access standards and procedures. Some courts charge a nominal amount of money to see documents, some do not. This hodge-podge approach creates inequities in rights of public access and protection of personal information and likely opens the courts to constitutional challenges over their policies.
The EFSP model has copyright concerns. By putting documents written by lawyers into the hands of the private sector for possible resale or to supply some other "value-added services" the lawyers' copyright and control over their work is at risk.
The EFSP model has the potential to create multiple litigation documents under control of parties outside of the court and litigants, although the primary court record would remain in the court's custody.
Digitization of court records and allowing others to access them through the EFSP's document repository raises the spectre they could be altered and used for fraudulent purposes. However, that's the case now with paper records.
Because the meta-tagging would appear to apply only to the electronic envelope and not the attachments, the legal database of documents that would be created could not be easily searched and would be unwieldy. However, full-text retrieval engines should eliminate some of these concerns.
157
9/11/02
Turning to third parties for storage of the litigation documents during proceedings could negatively affect the court's independence.
A lack of court information systems and case management systems in some provincial jurisdictions could reduce the benefits of the EFSP model.
Law firms may incur additional, indirect costs, such as time spent formatting documents in accordance with the e-filing rules particular to each court. That said, it's likely their direct costs, printing, staff time devoted to document production and filing would decrease. Whether it's enough to offset their indirect costs or whether the actual savings are achievable is not clear until the prototype is developed. Caution must be maintained to ensure the system is cost-neutral to law firms and litigants or the adoption rate will likely be low.
As for E-filing in general, the concerns are: By law, the provincial governments are responsible for the "administration of justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts."1 This affects the ability of courts to mandate any national standard regarding filing models. However, if the courts were to form a voluntary standards body, they might be able to set out general principles or guidelines that would go a long way toward harmonizing basic processes. E-filing has the potential to reduce court access to pro se litigants if counter service is eliminated.
The Constitution Act, 1867, s. 92(14), 91(27). 158 9/11/02
A lack of standards among attachments filed in the electronic envelope has the potential to create "version anarchy" and could result in problems when it comes to opening and reading the attachments. This is a problem faced by any e-filing system. There is a trend toward using Adobe Acrobat PDF documents because they maintain formats.
There is a strong possibility that e-filing will merely shift the burden of printing documents from the litigants who are required to file paper versions of their pleadings to the courts, thus calling for additional resources and creating increased costs on the courts. This is a challenge of e-filing in general and not the EFSP model. It's unlikely the courts will require every page of every file to be printed.
Any type of e-filing system would require amendments to court rules. Although having the potential to reduce overall costs of litigation among parties, a move to electronic filing will require that the courts increase operational funds or re-allocate resources to build and manage a dual system one that allows counter service and e-filing. This comes at a time when there are constraints on government spending.
1.4
Getting "Buy-In" From The Profession
Apart from the pros and cons of the EFSP model itself, one of the biggest challenges may be convincing practitioners to change their ways quickly enough for the e-filing initiative to prove itself. "Selling" the EFSP idea and its benefits to the profession will require special attention and effort. Some points to consider:
159
9/11/02
Lawyers are traditionally slow to adopt new technologies and they will be reluctant to invest great sums of money or time for an experimental exercise unless there's a clear benefit to the firm or the client, such as reduced litigation costs, streamlined processes or greater efficiencies.
The number of cases going to the Federal and Supreme Courts, even in the largest law firms, are negligible in relation to the many files being managed at lower court levels, necessitating the need for an expanded roster of courts, agencies, boards and tribunals.
The vast majority of lawyers work in small practices and the infrastructure of firms varies greatly across the country with wildly varying levels of technological expertise, online access and computer equipment.
Any requirement imposing a burden on lawyers in the preparation of an electronic document (e.g., requiring them to scan photos or tag documents) will likely not meet with success.
Lawyers will be attracted to a seamless system that is simple to use, inexpensive and provides lawyers with an attractive alternative to the paper-based system.
The fee for such a service must not be onerous and preferably be cost-neutral to the existing filing regime.
Realizing that other courts and jurisdictions have tackled these issues, this perspective also looks at other e-filing initiatives, such as those in the United States and other parts of Canada. Some of these projects offer valuable insights into overcoming the hurdles and seizing the opportunities.
160
9/11/02
1.5
Recommendations
The challenges in building an effective e-filing system for Canadian courts can only be met and overcome by wading in and taking on the hurdles one-by-one. Waiting until someone else resolves all the problems means waiting a long time. This perspective suggests the Supreme Court of Canada is actually among the best-positioned judicial institutions to test this type of initiative. The key to effectively managing this initiative and convincing the legal profession and judicial community of its value is a measured step-by-step approach involving a series of progressive "wins." Recommendations include: Recruit 2-3 major law firms or appellate counsel as early participants in testing and using the EFSP system with filings to the Federal or Supreme Court. Ask these participants to use the system on a "closed-loop" (nonpublic) basis for 3-6 months and then get their feedback. Survey the legal profession to determine their level of computer know-how and Internet capabilities with the aim of identifying areas of weakness and misunderstanding, including possible price points for such a service. Carry out a cost-benefit analysis to determine the potential size of the e-filing market and cost reductions that could arise through the automation of the pleading process. When the prototype is functional, form a national organization of judges and court administrators to provide feedback and help develop standards. Establish the principle that in any EFSP system developed, control over the database that contains the court record lies with the court and not the private sector. Make it clear that the EFSP system ensures courts continue to receive revenues from the filing of documents.
Examine more closely the issue of secure electronic signatures and the type of technology required to satisfy the evidentiary requirements of the Personal Information Protection and Electronic Documents Act and other admissibility issues surrounding electronic evidence and integrity of an electronically filed document.
Develop a communications strategy for the profession, judiciary and general public to effectively sell the benefits of e-filing and calm any concerns.
Similar to U.S. courts, establish a joint committee of federally and provincially appointed judges to oversee electronic filing issues. This committee should specifically look at setting guidelines around the following: Privacy and copyright issues. Document standards for the creation and use of attachments by legal counsel in electronic filings. (e.g., PDF, Word, etc.).
Form a joint committee of public-private sector interests to look into the practicality of establishing a public-private sector consortium that could develop the LegalXML standards in Canada. The consortium could also possibly be charged with the task of advancing and maintaining any middleware component of the technology needed for courts to operate the single window electronic filing gateway, similar to the way CDS, Inc. manages the technology for public filings under the SEDAR system.
162
9/11/02
Embarking Down The Electronic Filing Road
As part of the federal Government Online Pathfinders Project, the Supreme Court of Canada has issued a discussion paper that seeks comment on a model for filing documents electronically.
The Electronic Filing Service Provider (EFSP) model, known as a horizontal e-filing system, would revolutionize the way the court manages paper filings, reduce costs of litigation and could possibly lead to the creation of standards for the electronic filing of documents that could be adopted by courts across Canada. It would provide an electronic gateway through which legal parties could file their documents with courts through thirdparty service providers using a Web interface to the courts under the form of an Applications Service Provider model. Before embarking on a discussion of the EFSP model, it is helpful to understand the concept of an Application Service Provider, as it forms the basis for the EFSP model.
2.1
What Is An ASP?
An application service provider is not a revolutionary concept. It finds it roots in the service bureau. What is new with this proposal is the extension of such a service delivery model into the realm of filing legal documents electronically.
Law firms have long relied upon third parties to provide them with turnkey services when it comes to managing their data and documentary needs. For example, many law firms have relations with private copying firms who have established service bureaus onsite to assist in the preparation of litigation documents.
As well, information service providers such as QuickLaw, estimated to be used by 78% of Canadian lawyers according to the firm, and West Law provide access to legal research electronically. What once required dial-up proprietary access to the information can now be had for a fee with a browser, computer and an Internet connection. ASPs are an extension of such services, leveraging the Internet as the delivery mechanism.
Research firm TowerGroup defines an ASP simply as "an automated way of accessing software and services online, provided by a third-party, and priced based on usage."2
In the traditional software development model, internal IT staff develop their own applications either on a proprietary basis or by purchasing or licensing off-the-shelf products from vendors to be used at the client's site. Vendors would charge a set fee regardless of the use made of the software by clients. The client is left responsible for managing and maintaining the technology, with the result that firms are locked into the products they purchase or license.3
Under an ASP model, IT development and maintenance rests with the ASP, reducing the need for firms to focus their IT staff on such functions. Users pay on the basis of usage,
Rising Tides of ASPs in the Capital Markets Industry, Dushyant Shahrawat, Sept. 7, 2000.
TowerGroup 2000 TeleForum Series slide presentation, p. 6.

3
Ibid., page 10. 164 9/11/02
often on a sliding scale depending on the number of users or volume of transactions. Users have more flexibility in selecting best of breed applications.4
What the EFSP model means for lawyers, then, is that they would simply need a computer, browser and Internet connection to be able to connect to the courts. For the courts, the ASP model means they would not have to individually develop their own efiling systems on a jurisdiction-by-jurisdiction basis, although there would be a maintenance cost.
Analysts at International Data Corp. estimate that in 2000, the ASP industry had worldwide revenues of US$296 million. That figure is expected to rise to $7.8 billion by 2004.5
Analysts at Aberdeen Group are more optimistic, estimating that worldwide ASP revenues have already hit $3 billion and will reach $16 billion by 2005. It predicts compounded annual growth of 52.5%. It sites key areas of growth for ASPs: Enterprise Research Planning (ERP), Human Resources, Financial and Accounting, Education and Training, Customer Relationship Management (CRM), e-Commerce, Communications, and Collaboration. 6
Ibid. "U.S. asked to oversee system," Higgins, Alexander, Associated Press, May 3, 2000. "Aberdeen Group forecasts Worldwide ASP Revenues Will Approach $16 Billion in 2005,"
Business Wire, July 11, 2001. E-Filing Service Provider Model Feasibility Study 165 9/11/02
Recognizing the potential, a number of technology vendors that have an interest in growing the ASP market have formed the Application Services Provider Consortium "the ASP Consortium."7 Started in 1999 with 25 firms, in a few short years the ASP Consortium has grown to more than 700 members in 30 countries, including some of the biggest names in technology providers IBM Corp., Compaq Computer Corporation and Microsoft Corporation. Its goals are to spread the gospel about ASPs and specifically: Educate the marketplace. Develop common definitions for the industry. Serve as a forum for discussion about the industry. Sponsor research in the industry. Foster open standards and guidelines. Promote best practices.8
Efforts such as this among the world's largest technology providers will likely bear fruit for the growth of the ASP market and indicate that it is not simply a passing technological fancy.
http://www.allaboutasp.org. http://www.allaboutasp.org/builder.asp?cname=about&cg=1. 166 9/11/02
2.2
The ASP Model In Canada
According to research firm IDC, actual ASP usage in Canada is extremely low at 3.4% and a little more for services firms, 5.3%.9 "Lack of awareness" has been one of the main barriers to ASP adoption and growth in Canada.10 The problem is that it is early in the ASP life cycle and while awareness is increasing, ASPs have been slow to develop in Canada. More than 48% of medium and large companies say they have only very limited knowledge of the ASP model, while a mere 9.3% say they have detailed knowledge.11
Moreover, only 3.4% of companies indicate that they have detailed knowledge of vendors and 47% say they have no knowledge of vendors.12 Awareness in the small business segment (defined as companies with fewer than 99 employees) is worse, with more than 84% indicating they have not heard the term ASP, and only 4% say they had some knowledge of vendors. Generally, the smaller the company, the less the knowledge.13
The current appetite for using an ASP is also weak. More than 73% of companies would not consider using an ASP, although the number was minimally lower for business/financial companies, which includes professional services. Only 23% of those
2001 Canadian ASP User Preference Report, Dellazizzo, Lise: IDC Canada Ltd., p 58. Ibid., p. 1. Ibid., p. 15. Ibid., p. 16. Ibid., p. 18. 167 9/11/02
10
11
12
13
companies would consider using an ASP.14 Concerns about ASPs range from reliability (84.2%) to security (76.8%) and price (70.2%).15
IDC estimates that the revenue potential in Canada remains "quite small" at the moment, under $100 million. However, the firm predicts rapid growth and expects that ASP revenues will hit $1 billion by 2006, leading IDC to conclude that the "market is not going to go away."16
2.3
ASPs And The Legal Market
According to a 2000 study by the Legal Technology Institute, the U.S. legal profession is not yet familiar with the ASP model.17
Of the 9% of law firms that currently use an ASP, legal research was the overwhelming function, cited by 71% of users. Time, billing and invoicing, was second, used by 46% of respondents.18
14
Ibid., p. 58 Ibid., p. 39 Interview, January 21, Lise Dellazizzo, IDC Analyst. Application Service Providers: an in Depth Look into the Future of ASPs in the Legal
15
16
17
Profession, The Legal Technology Institute, University of Florida, Fall 2000, executive summary p. 6.
18
Ibid. 168 9/11/02
While 85% of users indicate they were reasonably satisfied with their ASP, security (44%) and reliability (36%) remain the top concerns and there are also concerns about integration into the law firm's infrastructure. Firms indicated there were benefits to using an ASP, including low investment costs, cited by 19% of respondents and 31% of actual ASP users, and low initial costs (13%).19
While 90% of firms indicate they have Internet access, about one-quarter still use slow technology and modems with speeds less than 56K, although 40% of respondents say they would upgrade to high speed access to take advantage of an ASP. 20
In Canada, ASP use seems to be picking up, although the penetration rate is likely exceedingly low due, in part, to a lack of offerings from vendors. QuickLaw has large penetration among legal firms and indicates 90% of lawyers access the service via the Internet, suggesting Internet access penetration is high in the legal profession. Moreover, it appears law firms are starting to turn to an array of technology providers that are using the Internet for delivering such services as research and document management. Also, a growing number of legal technology vendors indicate they are eyeing the ASP model as a means to deliver their services. 21
19
Ibid. Ibid. "Don't underestimate the ASP," The National, Middlemiss, Jim: Nov 2001, p. 43. 169 9/11/02
20
21
The interested companies provide a range of services from time and billing to document management, case management, accounting, litigation support, human resources, document collaboration and customer relationship management.22
The economic benefits of an ASP service model for the delivery of e-filing services are distributed between courts and law firms as follows:
Cost System Development
Courts Significantly lower
Law Firms N/A
System Maintenance
Significantly lower
N/A
Technical Support
Significantly lower
N/A
Customer Relationship Management Usage Fees
Significantly lower N/A
N/A
Significantly lower as a result of economies of scale and focus
22
"Beware the two Ss," The Mobile Lawyer, Nachman, Sherrie; SCOTIS Newsletter,
August/September 2000, Volume 2, number 1; supra, note 21. E-Filing Service Provider Model Feasibility Study 170 9/11/02
There are both pros and cons to using ASPs for all participants in the judicial process the courts, lawyers and litigants.
On the plus side:
Court Benefits There's a low cost of entry to building the systems needed for e-filing. Information technology resources are freed up for other tasks. You eliminate the need to constantly upgrade software to the next version.
All Stakeholders Depending on the company and its technology infrastructure, implementations can be rapid. It's easy and cost-effective to scale up or down according to your needs. You can focus on best of breed solutions.
Lawyers/Litigants Eliminating the need for lawyers to dedicate staff time and resources to document production should reduce the overall cost of litigation.
171
9/11/02
On the downside: The ASP's system could crash or it could go out of business, leaving the user scrambling. (This is less of an issue if there are multiple providers.) If paying on a per transaction basis and usage is high, then costs tend to be high.23 That's not the case for subscription-based models.
However, the legal industry has experienced some growing pains involving ASPs. RedGorilla.com, a U.S. online time-management firm went bankrupt, leaving lawyers without access to sensitive and important information and casting a pall over ASPs. As well, the West Group, one of the major legal technology vendors is said to have spent as much as $100 million on its ASP offering to date with little to show for it and there's speculation that it is backing off its commitment to the ASP model.
23
Ibid., pg. 11. 172 9/11/02
The Single Window EFSP View
Under the plan, private and public sector organizations have entered into a cooperative agreement to jointly explore the technical feasibility of establishing the EFSP model. The partners include: Supreme Court of Canada. Federal Court of Canada, which had submitted its own separate project proposal for funding to Pathfinder.
Services providers include: SOQUIJ, a Quebec legal research and data provider. Quicklaw Inc., a legal research and data provider. Juricert Services Inc., a digital authentication firm geared to the legal community, which is an initiative of the Federation of Law Societies.24
Under the agreement, the service providers will bear the cost of developing a prototype and middleware that will provide an interface to the court's case information or management systems. The prototype is to be based on the LegalXML Court filing standard and the service will be bilingual. The parties agree that the model under consideration should allow for the development of a competitive e-filing market and will
24
Business Case: Electronic Filing Service Provider Model, Murray, W.A. January 14, 2002;
Press release, Aug. 10, 2001. E-Filing Service Provider Model Feasibility Study 173 9/11/02
not provide SOQUIJ or QuickLaw with an exclusive or protected market. The service providers shall retain ownership of intellectual property rights to the middleware and related software it develops. However, the contract provides that courts across Canada will receive a royalty-free license to use the software in perpetuity, which includes the right to free upgrades. In an era of government cost-cutting, this is a significant advantage to courts in smaller judicial centres that might be contemplating ways to enter the digital filing world.
The system would provide a single electronic window access to the courts through which documents could be securely exchanged among litigants and the courts. Rather than having clerks stand in line to file documents, law firms could turn to third parties, EFSPs, and file their documents electronically from their offices through the service provider, which would have an interface with the court via the Internet. The EFSP effectively operates as an electronic courier because the documents would be placed in a secure electronic envelope and sent to the court.
As such, the EFSP would not concern itself with the content or format of the digital document being sent. The information required to complete the transaction is confined to source and destination addressing, identification of the subject matter, time stamping, third-party notice and instructions on how to process the contents.
By basing the solution on the open LegalXML standard, it will eventually allow private sector companies wishing to compete as an EFSP with the opportunity to provide
174
9/11/02
services to lawyers by developing their own e-filing application and making it LegalXML compliant.25
It is not clear yet what an EFSP would charge for filing such documents, although at the moment the price would seem to be minimal, akin to the cost of couriering a document. Theoretically, the market will determine optimum pricing.
As well, Juricert will not have a protected market, but will benefit from the market that Quicklaw SOQUIJ and EFSPs are able to build. Juricert is also free to provide the same secure infrastructure services to potential EFSP competitors. Everyone filing through an EFSP needs to be authenticated to prevent fraud. One approach involving Juricert that is now under consideration would require those seeking to file documents electronically to visit a notary with two pieces of ID, including one with a picture, to have their application form witnessed. That form will then be sent to Juricert and an online username and password will be provided. However, the authentication process is still in the design stage.
It's not clear how firms filing electronically would remit their filing fees, but there appears to be no negative revenue impact on courts in terms of those fees. The different jurisdictions would continue to control the price of admission to their court systems.
25
Ibid., p. 2. 175 9/11/02
The EFSP system has the potential to create pools of electronic pleadings and arguments held by different parties. However, in all instances, the courts will exercise full control over the primary source documents, allowing for a searchable database of filings.
The parties are examining two approaches. In one, an EFSP would take a "snapshot" of the document during filing and transmit the original to the court. In the snapshot approach, courts would exercise record management functions on the primary copy and the EFSPs would use their version for value-added services. The downside to this approach is version control. For example, how will the original be distinguished from the copy? How would amendments be accounted for in the copy?
A second, more feasible approach is the "pointer" system, which functions similar to a search engine. The EFSP transfers the document to the court and creates a "file pointer" to the document, which resides only at the court. EFSPs would then develop any valueadded services using an index of pointers to provide searchable databases, litigation support, etc.
3.1
The EFSP Feedback: What People Are Saying
Generally, there is support for the notion of electronic filing of court documents. The EFSP model, however, has been met with both optimism and skepticism, indicating that there is an uphill climb for proponents of the system and many communication hurdles to overcome.
Generally, private sector lawyers from smaller firms and judges were more optimistic and supportive, or neutral, towards the EFSP model. Court administrators familiar with
technology projects, public sector lawyers and lawyers from larger firms tended to be more judgmental. There appears to be skepticism as to whether the model under discussion meets the needs of the various parties involved in the court system, and whether there is a business case for such a model. Parties who have had experience with such technology projects tended to be more skeptical and saw more potential for problems than those who simply considered themselves to be technology users and supportive of its expansion into the court systems.26 The benefits of e-filing cited by the optimists (who tended to include judges and lawyers from the private sector moreso than court administrators or public sector lawyers) include: Lawyers seem ready for e-filing. Government moves to close courthouses makes e-filing compelling. Reduction of photocopying costs. Reduced court administration costs. Reduced storage costs.
The appeal of the EFSP model included: It makes e-filing feasible for jurisdictions with lower volumes and resources. Speed and convenience. XML would promote standards.
26
Confidential interviews with a small sampling of legal participants, including court officials, law
firms, judges and segment of the legal profession taken between January - February 2002. E-Filing Service Provider Model Feasibility Study 177 9/11/02
Private sector involvement was seen as positive for likelihood of the project moving forward.
Better access for lay litigants.
In terms of the skeptics, their concerns focused on both e-filing in general and the EFSP model. Some concerns are legitimate, others less so. While many issues were raised, they are far from insurmountable and most sticking points will be encountered whether or not courts opt to pursue an EFSP model versus some other type of e-filing service.
The specific concerns are set out here simply as a sampling of the stated fears within the community. Most will be addressed later: Inability to see advantages of the systems or benefits to their own operations. Belief there is no market or need for cross-jurisdictional filings so e-filing is best developed as a local initiative. The model clashes with the local government's approach to online access to government institutions and courts are part of that umbrella. Private sector participation takes away from independence of the court. Concerns about privacy and broader access to court records, including the belief that the public should not get wide access to personal information of litigants and this would open the doors to such access; Concerns about private sector control over sensitive information within court filings and the use that might be made of the documents;
178
9/11/02
While courts would get a "middleware" solution, they would still incur additional costs to support and administer the system so, no real savings, in their opinion.
Belief that the method proposed for attaching and filing documents would not withstand court scrutiny in terms of evidentiary requirements and provisions of the Personal Information Protection and Electronic Documents Act , particularly sections pertaining to secure electronic signatures.27
Questions over whether EFSPs would be subject to Personal Information Protection and Electronic Documents Act , which could impact their ability to provide valueadded services and therefore reduce their interest in the project;
Belief that private sector involvement would impede the court's ability to make decisions around access to documents.
Doubts that a single model could accommodate the varying approaches courts nationally have towards issues, such as access to court records.
View expressed that Juricert authentication is unnecessary and it would be better to use PKI authentication technology.
Concerns over who would be responsible for and cover the costs of digitizing court forms in all provinces.
Litigants will see additional filing fee as a cash grab. Belief that the prototype is easy to build, but the policies will take time to work out. Printing costs shifted to courts. Lack of confidence in service providers ability to deliver.
27
Personal Information Protection and Electronic Documents Act, S.C.2000 C. 5, ss.40-48. 179 9/11/02
Lack of discussion with provinces. Doubts that less paper means lower costs to litigants. Belief that many courts don't have infrastructure needed to support e-filing. Belief that courts will lose access to current filing revenues. Lack of confidence in public-private partnerships: "Don't know of any public-private partnerships that have worked in the courts."
Possible contractual challenges.28 Fears that lawyers would have a third-party asserting copyright over their documents. Concerns about ability to develop bilingual meta tags. Belief that LegalXML standard is U.S. centric.
3.2
Analyzing The Strengths Of E-Filing And The EFSP Model
One of the biggest benefits of e-filing in general is that it would increase public access to courts by creating 24/7 connectivity to the filing office and court record. From the law firm's perspective it reduces the cost of printing and producing documents, although by how much is not clear. While they will no longer have to print copies for the court and other litigants, law firms will likely have to print some of the documents that the opposing side would traditionally provide, so the savings from printing may be insignificant.
28
For example, contract between the private sector parties and courts could breach some
provincial procurement laws because it implies possible future benefit to partners, i.e., ability to compete for future contracts. E-Filing Service Provider Model Feasibility Study 180 9/11/02
In the EFSP model, there are a number of strengths in developing a system allowing parties to file documents electronically. It has the potential to: Create standards for filing court documents electronically and eliminate the likelihood that Canada will have 12 different e-filing models (10 provinces, two federal courts), each possibly using different technology and imposing different obligations upon law firms in terms of software usage. Provide law firms with a low-cost entry into e-filing. Eliminate the need for law firms to develop their own technological connection to the courts, relying, rather, on the trend toward thin-client solutions, where a computer, browser and Internet connection is all a firm needs, along with minimal investment in a word processing or document application, such as Adobe. Reduce the need to continually upgrade applications that connect to the court. Create an integrated, comprehensive database of legal pleadings that can be searched across multiple jurisdictions, thus fostering the advancement of legal research. Allow the courts to acquire technology at little cost and permit them to automate some of their processes. Spread the cost of technological development across many users, providing for economies of scale and lower filing fees. Allow courts to transfer the court record more easily between jurisdictions. Provide law firms with an effective data back-up service something many lack.
181
9/11/02
3.3
Analyzing The Weaknesses Of E-Filing And The EFSP Model
The legal profession is staunchly conservative by its nature and slow to change. Despite the potential benefits that e-filing and an EFSP model could bring to the system, it carries with it some disadvantages and obstacles. E-filing has the following weaknesses: By law, the provincial governments are responsible for the "administration of justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts."29 This impacts the ability of courts to mandate any kind of national standard regarding filing models. However, if the courts were to form some type of voluntary standards body, they might be able to set out general principles or guidelines that would go a long way toward harmonizing basic processes. E-filing has the potential to reduce court access to pro se litigants if counter service is eliminated. A lack of standards among attachments filed in the electronic envelope has the potential to create "version anarchy" and could result in problems when it comes to opening and reading the attachments. This is a problem faced by any e-filing system. (There is a trend toward using PDF documents because they maintain formats.) There is a strong possibility that E-filing will merely shift the burden of printing documents from litigants who are required to file paper versions of their pleadings to the courts, thus calling for additional resources and creating increased costs on the courts. Again, this is a challenge of e-filing in general and
29
The Constitution Act, 1867, s. 92(14), 91(27). 182 9/11/02
not the EFSP model. It's unlikely the courts will require every page of every file to be printed. Any type of e-filing system would require amendments to court rules. Although having the potential to reduce overall costs of litigation among parties, a move to electronic filing will require that the courts increase operational funds or re-allocate resources to build and manage a dual system one that allows counter service and e-filing. This comes at a time when there are constraints on government spending.
The EFSP model has these weaknesses: The EFSP model has privacy impacts in that creating an integrated searchable database on the Web opens the doors to many more members of the public accessing the information than has traditionally been the case. As such, personal information could be more widely circulated than under the present model, which could negatively impact litigants and innocent third-parties involved in litigation. For example, in sexual assault cases, the facts detailing the offense could be easily accessed and disseminated among voyeurs. Sensitive details about divorce cases could get wider exposure than would normally be the case. Currently, courts have varying privacy and access standards and processes. Some courts charge a nominal amount of money to see documents, some don't. This hodge-podge approach creates inequities in rights of public access and protection of personal information, and likely opens the courts to constitutional challenges over their policies. The EFSP model has copyright concerns. By putting documents written by lawyers into the hands of the private sector for possible resale or to supply some other "value-added services" the lawyers' copyright and control over their work is at risk.
The EFSP model has the potential to create multiple court records under control of parties outside of the court, depending on whether or not the system elects to go with the "snapshot" versus the pointer model.
Digitization of court records and allowing others to access them through the EFSP's document repository raises the spectre they could be altered and used for fraudulent purposes. However, that's the case now with paper records.
Because the meta-tagging would appear to apply only to the electronic envelope and not the attachments, the legal database of documents that would be created could not be easily searched and would be unwieldy. However, full-text retrieval engines should eliminate some of these concerns.
Turning to third parties for storage of the court record during proceedings could negatively impact the court's independence.
A lack of court information systems and case management systems in some provincial jurisdictions could reduce the benefits of the EFSP model.
Law firms may incur additional, indirect costs, such as time spent formatting documents in accordance with the e-filing rules particular to each court. That said, it's likely that their direct costs, printing, staff time devoted to document production and filing would decrease. Whether it's enough to offset their indirect costs or whether the actual savings are achievable is not clear until the prototype is developed. Caution must be maintained to ensure that the system is cost-neutral to law firms and litigants or the adoption rate will likely be low.
3.4
Impact Of The EFSP Model On Practitioners
Lawyers are traditionally slow to adopt new technologies. Asking them to buy into an ASP model for the electronic filing of documents based on a model that is confined to the Federal and Supreme Courts will be a difficult sell. The case flow to the Federal and
Supreme Court tends to be a minimal component to most law firms. A lawyer at one of Canada's largest firm notes that his firm might have thousands of litigation files, but Supreme Court of Canada cases are "very, very marginal to our practice."30 He estimates five filings a year involve Supreme Court of Canada matters and an additional 40 relate to the Federal Court.
Rather, the litigation bar's bread and butter lies in provincial and superior courts within their home province. That is why it is essential that any attempts to establish a private sector EFSP market encompass the broadest range of courts, agencies, boards and tribunals as possible, at the federal, provincial, and even municipal level. By spreading development costs among the largest pool of organizations that receive filed documents, it will drastically lower their cost of development and provide the scale of economy needed to maintain low transaction fees for users. That, in turn, should foster greater use among litigants.
Further, the legal profession is broadly diversified, ranging from sole practitioners to large firms comprising 600 lawyers or more. As such, the infrastructure of law firms varies greatly across the country. Sole practitioners tend to have fewer resources at their disposal than larger firms, where the cost of technology investment can be spread across partners. While the consensus is that most lawyers now maintain some type of online access, it varies from high speed to slower dial-up access. Slower online access can impact the ability of firms to transfer and receive documents electronically.
30
Confidential interview, February, 2002. 185 9/11/02
Moreover, lawyers still rely on paying filing fees using cheques, although electronic payment is gaining ground within government services and will likely become more popular over time. It's not clear what impact the EFSP model would have on their payment processes. However, any requirement that law firms invest in technology to accommodate this proposal would likely lead to higher litigation costs for the clients. Moreover, any requirement that would impose a burden on lawyers in the preparation of an electronic document, i.e. forcing them to be responsible for scanning photos or tagging documents or using software programs that are foreign to their current operations, would likely have a negative impact on the uptake.
However, a seamless system which is simple to use, cheap and provides lawyers with e-filing access to the institutions where they conduct most of their business would provide an attractive alternative to the current paper-based system. It would likely have the impact of reducing resources dedicated to preparing litigation, including the need to print and bind multiple copies of court pleadings. It's been estimated that receiving documents electronically, can reduce costs by one-third and make it easier to search documents than traditional paper means.31 However, it could also mean that firms will need to invest more in larger computer monitors to make it easier to read electronic documents and avoid printing them.32
31
"Make e-discovery compatible with your firm's e-conomy," Terry, Christopher, Chicago Lawyer,
Vol. 24, No. 5, May 5, 2001.

32
Ibid. 186 9/11/02
How Other Jurisdictions Manage E-filing Initiatives
One does not have to look far to find electronic filing projects in the legal profession. Courts around the world are examining methods to allow for the electronic filing of documents, including U.S. Federal and State Courts and courts in Singapore, New Zealand, Australia and Canada. The projects range from simple email-based systems to more complex and elaborate offerings that incorporate cutting edge security systems, use leading Web document standards such as XML, and rely on third-party technology vendors to make it all happen.
4.1
The U.S. Experience
There are 16 U.S. states where courts currently use some type of e-filing system. The 11 Federal Circuit Courts and the District of Columbia Circuit court also permit e-filing.33 The courts involved include civil, criminal, bankruptcy and even an online "clearinghouse" created for class action litigation, which mandates that the parties must post their filings to the Internet for all to see.34
The systems used depend on each court. Some courts have chosen to develop their own system, while others have turned to third-party vendors. Many of the projects appear to be an extension of case management systems that the courts are adopting. One common denominator is that the courts remain firmly in control of the court record. Below is a
33
http://www.abanet.org/tech/ltrc/research/e-filing. Stanford Law School Securities Class Action Clearinghouse (http://securities.stanford.edu/). 187 9/11/02
34
sampling of projects selected as a reflection of how most jurisdictions appear to be approaching the issues.
4.1.1
The Fairfax Pilot Project
The Fairfax County Circuit Court implemented an e-filing pilot project in March 2001. It contracted with a local technology vendor to develop the system. It is open to all Virginia attorneys who register. They then receive a password and user name, which allows them to log into the pilot project. By using their ID and Password when filing a document electronically, the lawyers are deemed to have signed them, an interesting approach to electronic signatures. To avoid the complication of paying court filing fees during the pilot, the original pleading was filed in paper. If the parties agreed to move the case forward electronically, they would sign a consent order and the original pleadings would then be scanned into the system. Further documents would be filed electronically and service would be by fax. The filing fee remains the same for electronic filing as it does for paper, an important distinction from this proposal, which simply adds an additional fee. Lawyers require a computer with Internet access and a browser. They have to purchase Adobe Acrobat 3.0 or higher in order to file documents and if documents for the pleadings are not in electronic form, it is up to lawyers to scan them using their own scanner or they could receive assistance from the court. The Court relied on Adobe to preserve formatting. This is so that the documents are consistent in style, form, spacing, pagination, etc., when viewed by the different parties, no matter which computing platform they were using.35
Lawyers create a word processing file and convert it to a PDF document. They then log in, enter their case number and type in the title of the document they intend to file. They
35
Virginia Supreme Court Rule 1:17; http://ecf.co.fairfax.va.us/FAQ.htm. 188 9/11/02
then use their browser to locate it in their computer and click on a file document button on their screen, which transmits the document. Lawyers automatically receive a timestamped e-mail verification stating the case name, number and document ID number. An email is also sent to counsel of record in the matter, and it is their responsibility to view the document. The time of service is when the document was finished transmitting and any document filed after 4:30 was deemed to be filed the next day that was not a Saturday, Sunday or legal holiday. Lawyers have to file a paper version of sworn pleadings, which are scanned into the record by court staff and the original signed document remains with the court. Hyperlinks are permitted only to internal references within the document and not to external documents or Web sites.
The Fairfax project is noteworthy because it was undertaken before the case management system was in place, suggesting that e-filing can be successful without such structures in place.
While the Fairfax project is typical of a U.S. e-filing initiative, there are, nonetheless, subtle differences in many of the U.S. initiatives, indicating a lack of consensus on policy issues and processes surrounding e-filing. In Delaware, for example, lawyers can file 24 hours a day, seven days a week and can even use hyperlinked CD-ROM disks. The public can access court documents for free from a computer in the Prothonotary's office.36 Now, some courts are eyeing XML. For example, New Mexico, which piloted its first e-filing project in 1994, is developing cutting edge XML standards for its e-filing system.37 Its Advanced Court Engineering (ACE) allows for electronic filing over the Internet and it
36
http://courts.state.de.us/superior/tech.htm#tech1. http://www.nmcourt.fed.us/xci/xcihome.htm. 189 9/11/02
37
has been developing the Extensible Markup Language Court Interface (XCI) to encourage standardization of independently developed electronic filing systems.38
Private sector companies have also been making their mark in the U.S., assisting to develop systems that reflect the direction of the EFSP model. E-Filing.com, created by document management technology provider IMAGE-X of Santa Barbara, CA, provides e-filing services to the public. It allows users to file documents over the Internet to a variety of courts with which it has arrangements. For example, lawyers in the Yolo Superior County Court in Northern California, whose catchment area includes San Francisco and Sacramento, allows documents to be filed through e-filing.com. Users can create an account online and receive ID, a password and instruction on how to use the system. They can file using PDF documents or TIFF files. The lawyers simply need, an email address, a computer, a modem, Internet connection and computer.
Legal data provider LexisNexis bought CourtLink, a service that allows users to access court records and file documents online. It also provides back-office technology to courts and is an example of the type of value-added services that the private sector is developing in the U.S. legal market. CourtLink covers state and local courts and provides access to more than 200 million court records. The service covers 95% of the U.S. District Courts and has more than 90 courts online and over one million pages electronically filed and served per month. Users can receive alerts and track cases.
38
For an excellent discussion of how the court registrar developed the ACE program, got buy-in
and actual costs see: http://www.nmcourt.fed.us/dcdocs/files/ACEFAQs.html. E-Filing Service Provider Model Feasibility Study 190 9/11/02
CourtLink and E-filing.com's business objectives parallel that of the proposed EFSPs under discussion and they are positioning themselves to capitalize on growing U.S. efiling market. E-filing.com notes in marketing materials that about 25 million documents are already filed electronically in the U.S.
4.2
The Ontario Experience
Ontario was one of the first Canadian provinces to dip its toes in the e-filing water. It began to pilot the system in September 1997, when it allowed almost 100 Toronto firms to file documents electronically at what was then known as the Ontario Court, General Division. That court saw more than 225,000 cases filed annually in the Toronto office in 1996. At the time, the government estimated e-filing would save taxpayers almost $9 million in warehouse storage costs for documents and it was part of a wider initiative known as the Integrated Justice Project, which continues today. 39 The e-filing system was based on the SUSTAIN court management system, which was already used by the Toronto court. Initially uptake was slow. Firms were provided a software package with templates in either Microsoft Word or WordPerfect that covered 200 types of actions. Firms were required to purchase a code from SUSTAIN that would attach to each filing and identify them to the court system. To file a document, lawyers would select the EFile menu from their desktop computer using either Microsoft or WordPerfect. The user would be prompted to complete the document and fill-in appropriate information and then save it. The pleading would be mailed to an electronic post office, where it was scanned for viruses and then opened by the e-filing computer. The system reviews the document and authenticates it. If the document passed, it was assigned an authentication number and the lawyer received a confirmation receipt.
39
"Ontario Launches electronic filing pilot to bring civil justice system into 21st Century," Press
Release, Ontario Ministry of the Attorney General, Sept. 9, 1997. E-Filing Service Provider Model Feasibility Study 191 9/11/02
Today, the pilot continues and an initiative to develop a province-wide system is underway, building on what they learned in the Toronto project. The Ontario experience provides some insight into the challenges that an e-filing project faces. The project was dependent on the word processing packages used by lawyers. Vendors constantly upgrade such packages and some users upgrade and some don't. As people upgrade, the complexity of managing the system grows. It required a lot of maintenance and system updates.
Ontario is now moving to more of an XML standard, testing a revamped e-filing system in three courts as part of the Early Adopter Program. The goals are to obtain practical and valuable feedback from real users. The courts include the Superior Court of Justice Civil in Hamilton, the Superior Court of Justice Civil, in Cochrane (also the site of some bilingual testing) and the Superior Court of Justice Small Claims, Toronto. There are 12 organizations involved in each jurisdiction. They were chosen based on a number of factors, including: They have an interest in technology and are willing to experiment. They use PC compatible computers and have Internet access. They file a minimum of 10 court documents per month in one of the locations. They are willing to provide feedback and participate in focus groups and surveys.40
40
http://www.justiceontario.net. 192 9/11/02
Notably, users must register for a Personal Security License (PSL), based on PKI security from Entrust Technology. This allows the user to be authenticated, provides proof of who sent the document and indicates that the document has not been tampered with. Participants are required to install certain software applications on their computer in order to participate.
Attachments are limited to certain formats, with PDF being the preferred format. JPEGs, TIFFs and RTF files can be used in limited situations.41
Users are responsible for complying with limitation periods. The court endeavors to process documents within four hours, but does not guarantee that will happen. The onus is on law firms to check the system regularly to determine whether their filings have been accepted or rejected by the court. Lawyers are responsible for ensuring the completeness, correctness and quality of images. Participants are required to pay only statutory fees and a one-time $50 set-up fee. At the time of writing, Ontario was waiting for an evaluation of the latest project, although users of the first go around were generally satisfied with its performance.
The primary nuggets of wisdom that we can draw from experiences in other jurisdictions are that: There generally seems to be a demand and willingness by lawyers to test efiling. The adoption rate will likely depend on the ease of use.
41
http://www.justiceontario.net/GettingStarted5.html 193 9/11/02
In the U.S., the use of private sector e-filing firms is growing. There are many twists and turns to overcome in building the system and the challenge lies not so much in the technology, but in the business processes around using that technology. The devil is in the details.
4.3
The Need For A Single Window Standard
Over the years, the practice of law has seen a breakdown in provincial barriers and the creation of national law firms and the rise of lawyers as specialists, rather than generalists. There is much more transborder legal activity, both nationally and internationally. However, the bulk of law is still practised in a lawyer's home jurisdiction the local court. Courts have little interaction across provincial boundaries. (In fact, neither the Supreme Court of Canada nor the Federal Court has offices in all of the major regions of the country, let alone smaller centers.) The exchange of court records is vertical, from provincial Appeal Courts to the Supreme Court. As such, there's been little need to interact and exchange communications horizontally or across provincial boundaries and therefore no real driver for a system that would allow such transfers or foster standards in the way courts process or file documents. Rather, the opposite seems to be the rule, with courts developing policies and procedures on a provincial and even local basis. That has led to a divergence in policies across courts and jurisdictions towards things like access to court filings, where fees can vary, and the extent to which courts will hold that records of judicial proceedings are public. Such a decentralized approach leads to multiple standards.
An EFSP model would encourage a single standard, creating greater efficiencies among court resources. It would eliminate the need for different jurisdictions to spend money, experiment and develop their own e-filing models. It would allow the growing array of
194
9/11/02
national law firms to more efficiently develop their litigation technology infrastructure across multiple sites, and eliminate the need for them to develop multiple systems to accommodate different jurisdictions. A browser-based, EFSP model would encourage technology vendors to develop litigation solutions that integrate into existing law office management systems.
195
9/11/02
Critical Issues Challenging An EFSP Model
There are a number of critical issues that need to be addressed in an EFSP model. 5.1 1. Privacy
When it comes to accessing court records, there is a general concern that creating an electronic document repository will shift the delicate balance between the principle that courts must be seen to be open and accessible and the privacy concerns of individuals. An open court is considered fundamental to the justice system. In dealing with access to judicial records, the Supreme Court of Canada has noted in Vickery v. Nova Scotia Supreme Court (Prothonotary)42 that "courts must, in every phase and facet of their processes, be open to all to ensure that so far as is humanly possible, that justice is done and seen by all to be done." Openness in judicial proceedings is the norm, not the exception.
However, there are instances where openness is curtailed by concerns about privacy. It can arise through statute or during litigation and requests for publication bans on sensitive information. The Young Offenders Act , for example, prohibits the publication of an offender's name. States secrets, sexual assaults, medical records, sensitive business records, divorces, child custody cases, are some of the situations where concerns are raised about protecting privacy interests. In Vickery, the court noted the importance of the right to privacy, stating that it "inheres in the basic dignity of the individual."43
42
[1991] 1 S.C.R. 671, paragraph 44. Ibid., paragraph 43. 196 9/11/02
43
From the lawyer's standpoint, the degree of privacy sought often depends on which side of the fence you're on and what the battle is that you've been retained to fight. In criminal cases, most lawyers and their clients prefer little attention and exposure. The same for those defending corporate interests, especially of publicly traded companies. As well, in many cases sensitive information is revealed ranging from sexual assaults to personal financial information in bankruptcies and divorces to sensitive corporate information in civil matters.
Privacy is a major concern facing e-filing projects in other countries. In the U.S., for example, the Judicial Conference of the United States, asked the Committee on Court Administration and Case Management (COCACM) to examine privacy issues related to public access to electronic court files. It stemmed from the development of PACER (Public Access to Court Electronic Records), a service of the U.S. Judiciary. Pacer provides the public access to case and docket information from Federal Appellate, District and Bankruptcy courts, and from the U.S. Party/Case Index. 44 Each court maintains its own database and the PACER system allows users with a computer, Internet connection and browser to access most of the Federal Courts and their documents.
To examine the privacy issues, COCACM established a Subcommittee on Privacy and Public Access to Electronic Case Files, comprising eight judges. In November 2000, the Subcommittee produced a document entitled "Request for Comment on Privacy and Public Access to Electronic Case Files." The comment period ran from November 2000 to January 26, 2001. The committee received 242 responses, ranging from lawyers and private citizens to journalists, data resellers and private investigators. It then developed
44
http://pacer.psc.uscourts.gov/pacerdesc.html. 197 9/11/02
policy recommendations that were adopted by the Judicial Conference in September 2001.
It included a set of general principles:45 1. There should be consistent, nationwide policies in federal courts in order to ensure that similar privacy protections and access presumptions apply regardless of which federal court is the custodian of a particular case file. 2. Notice of these nationwide policies should be given to all litigants in federal court so that they will be aware of the fact that materials, which they submit in a federal court proceeding, could become available on the Internet. 3. Members of the bar must be educated about the policies and the fact that they must protect their clients by carefully examining the documents that they file in federal court for sensitive, private information and by making the appropriate motions to protect documents from electronic access when necessary. 4. Except where otherwise noted, the policies apply to both paper and electronic files. 5. Electronic access to docket sheets through PACERNet and court opinions through court Web sites will not be affected by these policies. 6. The availability of case files at the courthouse will not be affected or limited by these policies.
45
http://www.uscourts.gov/Press_Releases/att81501.pdf, 198 9/11/02
7. Nothing in these recommendations is intended to create a private right of action or to limit the application of Rule 11 of the Federal Rules of Civil Procedure.
The Subcommittee then recommended specific rules pertaining to: Civil case files: Social security cases should be excluded from electronic access and litigants should be responsible for editing from the record, social identifiers, such as Social Insurance Numbers, dates of birth, financial account numbers and the names of minor children. The committee pondered creating separate levels of access to electronic court records, but determined that it was too complicated in relation to the privacy benefits that would result from multiple levels of access. It would also result in unequal remote and physical access between the electronic record and the paper record at the court, which could spawn a cottage industry of data collectors.
Criminal Cases: It decided that remote public access to criminal records should not be available at this time, but be reviewed within two years of the Conference adopting the principles. Here the concern was that the public access benefits would be outweighed by safety and law enforcement risks that such access would create. There were concerns that users could examine the electronic file to determine how much people were co-operating with authorities and then use that information to intimidate or harass victims, witnesses, co-operative defendants or their families.
199
9/11/02
In Canada, public access to much of the court record is confined to a geographic location. It's unlikely that a member of the public living in Vancouver could easily access a case filed in Central Ontario. As well, some courts impose a fee on accessing court documents, which acts as a further deterrent to courthouse voyeurism.
The concern in Canada appears to be that by providing Web access to electronically filed documents, courts would be engaging in activity that is detrimental to the privacy concerns of litigants and third parties. Some suggest that the court be responsible for sanitizing the record that is in the public domain. This would require additional resources on the court's part and could result in a lack of uniformity in privacy standards among different courts. It also raises many questions. Who would be responsible for making the determinations of what should or shouldn't be public? How does massaging the public record advance the need to ensure that "justice is done and seen by all to be done?"46 The court should not take on the role of electronic editor. It has neither the resources, nor the time. Nor should lawyers be required to cleanse the record without the guidance of the courts on what does or does not constitute sensitive information. One needs to remember that there are mechanisms in place to protect members of the public from being damaged by the dissemination of false information. The danger of providing Web access to court records falls on publishers, not the courts. It's the use of the data where the peril lies and laws around defamation and the Personal Information Protection and Electronic Document are already in place to police such use.
As well, there are concerns that the database holding the court records could be "mined' for purposes unrelated to justice and that even after an accused has been declared not guilty, the allegations of guilt could linger in some accessible database. That's already the
46
Supra, note 39. 200 9/11/02
case today. Media databases and microfiche are full of such information, which can be easily drudged up at the local library or through online databases.
Moreover, firms like debt rating agencies already "mine" the court record and track litigation developments in relation to publicly traded companies and those who access capital markets. Awareness of litigation is part of the due diligence process for lenders and investors
One area that does seem problematic, however, is that an EFSP model based on the "snapshot" approach would result in multiple records of the electronic documents filed with the courts. Each EFSP would be in possession of a copy of a document filed by its client, in effect, part of the unofficial court record. The question then becomes what happens to these documents? Can they be used for commercial purposes? What happens if a court strikes a pleading? While the official court record will reflect that finding, the unofficial records lying in the computer banks of the EFSPs will not. The pointer system eliminates this concern.
It's also been said that Imposing a fee on those who seek to access court documents, similar to how the paper record is managed, can alleviate some of the concerns around wider distribution of information. However, such fees negatively impact litigants who have little money.
It should be noted that attempts by a court to restrict access to information on the grounds of privacy would be met with resistance by groups supportive of open courts, including media organizations and public rights advocates. By the same token, a court could expect
201
9/11/02
some support by privacy commissioners and advocacy groups supportive of privacy initiatives.
5.2
Who Owns What In An E-Filing Environment?
Another area that has drawn much concern about making court filings accessible through the Web lies in copyright. Factums appear to qualify as a literary work and would be accorded copyright protections.47 As such, it has been suggested that the court would have to establish and administer some type of permission-based system that seeks approvals from law firms for making their pleadings accessible through the Web. That would require additional resources to manage.
However, it might not be necessary. The Copyright Act permits copying in certain situations. First the Supreme Court would appear to qualify under the Act as a "library, archive (emphasis added) or museum," which is defined as:
"an institution, whether or not incorporated, that is not established or conducted for profit or that does not form a part of, or is not administered or directly or indirectly controlled by, a body that is established or conducted for profit, in which is held and maintained a collection of documents and other materials that is open to the public or to researchers...."48
47
Copyright Act, R.S.C. 1985, c. C-42. Ibid., s. 2. 202 9/11/02
48
Clearly a court is open to the public and would not appear to be established or conducted for profit. If that's the case, then section. 30.1(1) of the Act provides a copyright exemption when copying works deposited in the archive:
"It is not an infringement of copyright for a library, archive or museum or a person acting under the authority of a library, archive or museum to make, for the maintenance or management of its permanent collection..... a copy of a work or other subject-matter, whether published or unpublished, in its permanent collection:
(d) for the purposes of internal record-keeping and cataloguing49 "
As well, the fair dealing provision of s. 29 allows copying for research or private study.
As for posting such works on the Internet, it could be argued that it does not constitute a publication and therefore does not infringe copyright. Section 2.2 notes that publication does not include "...the communication to the public by telecommunication, of a literary, dramatic, musical or artistic work..."
This would appear to require that the central filing repository lie with the court as part of the archive and not with any private-sector party. The problem then becomes the use
49
Ibid., s. 30.1. 203 9/11/02
made of such information in the central database by private-sector parties that may want to mine the database and sell the information or create additional products, such as precedents. It appears that the copyright exemptions would not apply to such activity and the copyright holder could seek redress against EFSPs under the Act. Of course, EFSPs could request the filers give up their copyright when filing or it could possibly be argued that there is some type of implied or express consent to use the document if electronically filed; however, such positions would dissuade many lawyers from filing if they thought that their work would be used for commercial gain without some form of remuneration. It might be a different case if such uses were simply limited to research purposes, in which case it might arguably be protected under the Act.
5.3
Stopping Hackers And Preventing Fraud
Any EFSP model must ensure that it is providing impregnable security. The model under discussion would see Juricert Services Inc. play a role in developing the security around the filing system. Juricert was launched in August, 2000, an initiative of the British Columbia Law Society and the Federation of Law Societies. Its mission is "to reduce the risk, improve the certainty and enhance the trust in professional dealings over the Internet."50
Juricert has developed technology known as "Trusted Digital Credentials," a digital registration system that authenticates and validates users who exchange documents. Juricert provides the foundation for incorporating digital signatures into an online exchange of communications between parties. Think of digital certificates as individual
50
"www.juricert.com. 204 9/11/02
passports with digital signatures. They protect data traveling in cyberspace and ensure that the computer you are talking to is who it says it is.
It does this by encrypting code that is unique to each persons digital certificate, which sits on their computer, and imprints it on communications they send. Receivers compare the digital certificate with the one that they have on file for the sender and they can verify that the information they are receiving comes from the appropriate computer and hasnt been tampered with in transit. Its based on public key infrastructure (PKI) in which each party essentially has its own private key to unlock the exchange of documents. The certificates are issued by a number of competing businesses, known as a certificate authority (CA). One of the big benefits is that digital certificates provide an audit trail that makes it difficult for someone to later repudiate a transaction by claiming they never authorized it.
Juricert, however, is not the provider of digital signatures. Rather, third-party technology providers (the Certification Authorities), can incorporate Trusted Digital Credentials into their PKI-secure digital courier services, which allows for encryption of documents during an exchange and permits them to be "electronically signed." Organizations are placing more attention on digital signatures since the passage of legislation in Canada, federally and provincially, and the U.S., to allow for the use of electronic alternatives to written documents.51 These legislative changes are expected to fuel the demand for encryption services moving forward. Aberdeen Group, a Boston-based research firm,
51
For example, the Personal Information Protection and Electronic Documents Act, S.C. 2000 c.
5; Electronic Signatures in Global and National Commerce Act (15 USCA 7001); Electronic Commerce Act, 2000, S.O. 2000, c. 17. E-Filing Service Provider Model Feasibility Study 205 9/11/02
predicts that the number of global companies using digital certificates will surge from 30 per cent in 2001 to 98 per cent by 2003.52
If there's a downside to digital certificates it's that they can be expensive to deploy and maintain. Moreover, they merely authenticate the computer upon which they rest and not necessarily the actual user. The Juricert authentication procedure, which requires photo identification, would put a face to the ID number it provides. However, it is also an extra step that users must go out of their way to complete. New York had a similar requirement, which proved to be an early stumbling block to adoption. The New York Unified Court System saw five cases electronically filed in 14 months. The court required that attorneys present themselves with photo ID at the court to receive a password, which was later relaxed in favor of an affidavit that could be mailed.53 Conventional approaches to e-filing typically have the same challenges the significant difference with the EFSP model being that one set of secure credentials would be sufficient to file documents across all jurisdictions.
5.4
Are Practitioners Ready For E-filing?
Computers pervade the practice of law and it's nearly impossible to practice today without some type of computer support for at least composing documents. As well, anecdotal evidence suggests that Internet penetration among lawyers is high. What is fuzzy, however, is the extent to which lawyers are using high-speed access versus slower, dial-up modem connections. This is important only because the bandwidth differs and
52
http://www.cica.ca/cica/cicawebsite.nsf/public/E_01March7. "Federal Courts, Lawyers Gear Up for New Age of E-Filing,"Edward, Jim, New Jersey Law
53
Journal, Dec. 21, 2001. E-Filing Service Provider Model Feasibility Study 206 9/11/02
those using 56K dial-up modems or less will experience significant delays in transmitting large documents, particularly if there are graphic elements incorporated into them. While surfing the Net has become a common-day occurrence for many lawyers or their staff, it's less likely that they have familiarity with PKI technology. However, given the nature of confidential communications and various law society Rules of Professional Conduct requiring lawyers to keep client information confidential,54 there is an onus on lawyers to consider security measures in the adoption of technology that would prevent unauthorized disclosure of their client's information. As electronic communications among law firms, clients and courts increase, lawyers will have little choice but to keep pace with technological developments and implement systems that will ensure they meet their professional responsibilities when communicating client information.
5.5
Lawyer "Buy-In"
A critical issue facing the success of an EFSP model is getting buy-in to the system from the small- and mid-sized firms. Small firms note that they can simply walk up to the court counter and file their paper documents. It's a tried and true system that they have become comfortable with, know and understand. Many will not see the need to change. While the courts could take a build-it-and-they-will-come approach to e-filing, there's no guarantee that small and mid-sized firms will flock to use it. This will particularly be the case if the system is overly complex, expensive to use or requires substantial investment in technology. The EFSP model is predicated on building a market for such services. The bulk of that market will be small- and mid-sized firms. While there appears to be many benefits to them adopting the service, proponents of the model will still have to engage in
54
For electronic access to lawyer Professional Codes of Conduct, see
http://www.flsc.ca/english/lawsocieties/acts/actsregulations.htm. E-Filing Service Provider Model Feasibility Study 207 9/11/02
an information campaign touting the benefits of e-filing and explaining to the profession how it will work. Otherwise, it has the appearance of courts engaging in a cash grab.
5.6
Lack Of Court Information Systems
The EFSP model is being presented at a critical economic time in the Canadian court system. Many provinces have gone through budget cutting processes that have frozen or reduced spending on technology in the court systems. Some provinces have even closed local courthouses, reducing access to justice in communities. The EFSP model can be a tonic to some of these ills.
While large provinces, such as B.C. and Ontario, have both the resources and the case flow to justify building their own e-filing and case management information systems, that's not so for smaller provinces, such as those in Atlantic Canada and the Prairies. Individually, those provinces lack both the resources and the scale of economy to justify developing their own province-wide e-filing and case management systems. However, as a combined market, those courts along with local agencies, boards and tribunals could plausibly create a large enough filing market to make it attractive for private sector filing firms to step in and provide services. By adopting the EFSP model, the cost of development will be spread across the interested jurisdictions.
While the EFSP model has a number of positive aspects to it, the real benefits will be somewhat limited unless the courts receiving the documents have an information or case management systems that integrate with the e-filing system. Many courts also appear woefully inadequate on this front. However, the EFSP model and a willingness of courts to share technology developed by taxpayers dollars can actually advance the technological development of participating courts, agencies, boards or tribunals. The Alberta Court of Appeal, for example, does not have a case management system.
However, the Supreme Court of Canada is providing it with one as part of an effort to share source code developed with public money. The EFSP model, combined with a willingness of courts to share technology, can make for a powerful combination that will open the doors to technology for courts that might otherwise be shut out from the digital revolution.
5.7
The Printing Conundrum
The notion of a paperless society is seductive. However, the reality is that paper is pervasive. Many people still prefer to print documents and read a paper version. Paper versions are particularly helpful when dealing with complex legislation or contracts, where readers must "bounce" around the document, assessing multiple sections to get a true reading of the document's intent and meaning. While hyperlinking can assist the electronic reader in this task, drafters have yet to embrace online writing tactics and tools that aid the reader. Chances are, most parties will want to print pleadings. Currently, courts have requirements that lawyers file tabbed briefing documents, which must follow set formats.55 This places the cost of printing upon the litigants or accused. To achieve the benefits of e-filing from a law firm perspective, those rules would have to be eliminated, otherwise there's no reason to file the document electronically. Once you do that, you shift the burden of potentially printing hundreds of thousands of documents to the court, which would likely require additional resources and increase the court's cost of managing its docket. As well, the court will need to continue offering counter service, adding to its costs. It's likely that not all electronically filed documents would need to be printed, which would reduce the overall printing costs associated with litigation in Canada, as some costs will be redistributed and some removed.
55
Rules of the Supreme Court of Canada, s. 3; http://www.scc-
csc.gc.ca/actandrules/rules/rules/index_e.html#3. E-Filing Service Provider Model Feasibility Study 209 9/11/02
How much and exactly where in the system costs can be reduced is not clear without a better evidence of the business case. What is clear, however, is that litigants will be charged an extra fee for filing documents electronically a cost that is readily identifiable and will appear on their legal bill as a disbursement. There's no guarantee that lawyers will pass on any savings to their clients that might accrue from printing and producing fewer documents. As well, there's no incentive for lawyers to modify their behaviour and utilize an EFSP. They're simply charged an extra fee. It should be noted that some of the U.S. pilots have waived fees for lawyers who file documents electronically system.
5.8
Cost-Benefit Concerns
Although the private sector parties continue to examine the business case for building an EFSP marketplace, the economic potential could be substantial. In the U.S., there are approximately 90 million cases filed in 17,500 courts annually, generating more than 1.5 billion documents. An estimated U.S.$11 billion is spent delivering these documents to courts and more than U.S.$2.5 billion is spent annually to store documents. Personnel costs for handling paper filings can take as much as 90% of a court's operating budget.56
Numbers in Canada are sketchier. The Ontario government has suggested that it cost taxpayers $9 million annually to store civil court documents.
56
"It's still slow going for E-filing," Law Technology News, July 11, 2001. 210 9/11/02
In B.C., more than two-thirds of law firms and legal departments use an external agency, such as a filing service or courier company, to file their documents, suggesting that the private sector already plays a large role in this activity at least in that province. The volume of filings impacted the use of an external party. The more filings, the greater the likelihood a firm turned to an outside party. As well, 41% of firms indicated that their delivery costs exceeded $10 per case package. Only 11% suggested it was under $5. The average delivery cost was $15.20 per case package.57
What's interesting to note is that there already is a private sector market for filing of documents. Most jurisdictions have businesses that provide paper filing services, whether it's a courier or filing agency. So, the concept of outsourcing that task to a third-party is not entirely foreign to law firms.
As to the size of the litigation filing pie, it continues to grow. Spending on civil legal services in Canada has grown in dollar value from $1.9 billion in 1973 to just over $11 billion by 1993. Inflation adjusted growth is 2.3% annually.58
"Of the average 2.3% per year real annual growth, 19.2% of that growth is attributable to increases in the growth of consumer spending. Government
57
Electronic Services Initiative Market Research Project, R.A. Malatest & Associated Ltd., 1999,
pgs. 20,21.
58
Trends in Canadian Civil Justice, Lippert, Owen; Easton, Stephen and Yirush, Craig: The
Fraser Institute. (http://www.fraserinstitute.ca/publications/books/laws_markets/state_of_canadian_judicial_stati.html) E-Filing Service Provider Model Feasibility Study 211 9/11/02
spending has increased at a rate of 2.9% per year annual real growth, and as over half of all spending on civil legal services is by governments, it accounts for 66.9% of the overall 2.3% per year growth in total spending on legal services. At 0.9% per year, business spending on civil legal services grew at a rate well below that of the other two sectors of the market for civil legal services."59
The size of Canada's practising bar is approximately 66,000 lawyers, comparable to that of California where a number of e-filing initiatives underway. Even if you factor out B.C. and Ontario, the pool of practising, insured lawyers remains relatively large at about 27,000 four times that of B.C. a sizeable base to deal with. It's not clear how many of those lawyers would practice litigation or administrative law and need to file documents with courts, boards, agencies or tribunals, but barristers likely outstrip solicitors. Below are the Federation of Law Societies statistics. Membership as at December 31, 2000 Practising Members - Insured British Columbia Alberta Saskatchewan Manitoba Ontario Barreau du Qubec Female 1,607 1,256 350 314 4,068 5,077 Male 5,060 3,761 999 1,089 13,151 7,939 Total 6,667 5,017 1,349 1,403 17,219 13,016
59
Ibid. 212 9/11/02
Chambre des Notaires New Brunswick Nova Scotia Prince Edward Island Newfoundland Northwest Territories Yukon TOTAL
1,384 213 448 43 125 20 20 14,925
1,747 679 1,074 95 316 47 38 35,995
3,131 892 1,522 138 441 67 58 50,920
Practising Members - Exempted From Insurance British Columbia Alberta Saskatchewan Manitoba Ontario Barreau du Qubec Chambre des Notaires New Brunswick
Female
Male
Total
829 551 47 116 2,503 2,800 0 84
923 778 92 157 2,989 3,032 0 142
1,752 1,329 139 273 5,492 5,832 0 226
213
9/11/02
Nova Scotia Prince Edward Island Newfoundland Northwest Territories Yukon TOTAL
0 29 47 23 21 7,050
1 25 88 24 26 8,277
1 54 135 47 47 15,327
5.9
Will E-filing Impede Access To Justice Of pro se Litigants?
Electronic filing means simply opening another delivery channel to the court. Provided that courts continue to offer counter services, it's unlikely there will be much impact on the ability of litigants to access the judicial system. In fact, there might be a positive impact on do-it-yourself litigants. By automating the filing process, there will be less need for law firms to require counter service. That frees up court staff to assist parties at the counter who have inquiries. As well, an EFSP could offer e-filing services to members of the public who have elected to represent themselves, thereby reducing demands on counter service and shifting it to the e-filing provider. Moreover, litigants living in jurisdictions without courthouses would have improved access to their legal systems under an EFSP model.
5.10 Has The Supreme Court Selected The Right Partners? A number of provinces have undertaken initiatives to computerize their justice systems. These are complex, costly undertakings and normally involve large multinational
214
9/11/02
consulting firms. They have met with mixed results and provide some cautionary tales about the tribulations of modernizing the court systems. They are raised here not as an indictment of technology projects or the parties involved, but as an example of how difficult it can be to foster change through technological innovation in the justice system. There are ample examples of similar growing pains in the corporate sector, when it comes to large-scale technology undertakings.
The New Brunswick Integrated Justice Initiative saw the then-named Andersen Consulting propose to create an "uniform, integrated operational, framework for administering and delivering justice in the province." Estimated costs for the project ranged between $8 million to $45 million. It was a common-purpose procurement project that would see Andersen finance the modifications and be paid from the savings generated. "No savings, no pay." However, in the end, financing could not be arranged on time and the parties agreed to sever their relationship. The government spent $4.3 million, including a $2.9-million termination payment to Andersen and $1.4 million for other goods and services. However, the Report of the Provincial Auditor General 1998 concluded that the value received for the $2.9-million payment was intangible and "may not be achieved."60 The auditor did note that the Andersen payment was "significantly less than amounts billed for the work completed" and likely saved the government other costs.61
The Government of Ontario entered a similar agreement with SHL Systemhouse Co. (later bought by technology giant EDS) as the lead vendor to its own Integrated Justice
60
Report of the Auditor General 1998: Province of New Brunswick, p. 112.
(www.gov.nb.ca/OAG-BVG/1998/chap9e.pdf).
61
Ibid. 215 9/11/02
Project, which objective is to "improve information flow by streamlining existing processes and replacing older computer system, and paper-based information exchanges with new, compatible systems and technologies."62 It involved case management systems for the Crowns and courts as well as electronic filing, document filing and court scheduling systems, and initiatives for the police and corrections officials. The project included a cap on the amount that would be paid to the lead vendor of $220 million.
Original project costs were estimated at $180 million, which were to be recovered from cost reduction benefits estimated to be $326 million. An Auditor General's review of the project found that the timelines in the original business case were "aggressive" and "did not adequately take into account the magnitude of change introduced by the Project, the complexity of justice administration particularly that of the courts (emphasis added) or the ability of vendors to deliver the Project's computer systems in the required time frames. By March 2001, the cost estimates for the project had risen to $359 million, while benefits were reduced to $238 million from $326 million and it's unlikely that the project will meet its contractual deadline. The auditor estimates that the cost benefits are still overstated by $57 million, but notes that the government prudently capped the payment at $220 million protecting it from any project overruns.63 The auditor's comments were particularly illuminating in discussing the "magnitude of change." The court system was expected to generate up to 70% of the benefits by eliminating the paper-based system. However, the plan to implement new systems, "incurred a measure of resistance from court staff and the judiciary. Project management also underestimated the time needed for extensive consultations with the justice system's many users, including not only
62
2001 Annual Report, Office of the Provincial Auditor of Ontario, p. 67
(http://www.gov.on.ca/opa/english/en01/e01t.htm)
63
Ibid., p. 70. 216 9/11/02
government staff, but also federally and provincially appointed judges and other staff who operate independently of the administrative and legislative arms of government."64
The EFSP project under discussion pales in comparison to what the governments attempted in the instances cited above. However, it's equally complex in the fact that it proposes to create a model that can be extended across jurisdictions. Some governments have already invested millions of dollars in the systems they are using, including the jurisdictions with the largest number of filings Ontario and B.C.
To date, they have spent years developing and implementing components of their plans and laying the groundwork among judicial partners and would likely be unwilling at this stage to modify their plans to adopt an EFSP model that would deviate from their current direction.
It's fair to say the partners in this project under discussion have an optimistic timetable for developing a prototype. It remains to be seen whether other jurisdictions accept or reject the model.
To its benefit, this proposal is focused on one small part of the court system, electronic filing unlike the integrated justice initiatives, which attempted to swallow the whale whole. As well, the technology vendors responsible for developing the technology, or those behind them, have deep roots in the justice system, unlike the lead vendors involved in the integrated justice initiatives. It should also be noted that this project is
64
Ibid., p. 76. 217 9/11/02
being driven by a court and not a government, which should also reduce some of the tensions that can arise when dealing with the independence of the judiciary.
In terms of the partners, though, there are some weaknesses. Juricert is a relatively young company that is still proving itself. In terms of providing technological consulting services and developing technological solutions, neither SOQUIJ nor Quicklaw are of the stature of an Andersen or an EDS. Their strengths lie in collecting and disseminating legal information, in which they gather and disseminate the court's final product. QuickLaw also has experience developing retrieval systems used by governments and the private sector, which will be a necessity for such a project. Unlike large consulting firms, the parties also have a long history working within the legal community and have a brand name and familiarity with lawyers, judges and court personnel. Nonetheless, it remains to be seen whether they have the wherewithal to transfer their strengths as publishers of legal information into technology service providers and traffic controllers for the filing of court documents.
5.11 LegalXML Central to the EFSP model is the LegalXML Court Filing 1.0 standard upon which the prototype will be based. Founded in 1998, LegalXML, Inc. is a non-profit organization, comprising volunteers from the private sector, non-profit organizations, government and academia. Its mission it to develop open, non-proprietary technical standards for legal documents, which will allow for them to be filed electronically via the Internet.65 The standard defines the data elements and data tags to be used in the applications that make up the electronic filing system. It includes requiring any electronic filing system to have
65
http://www.legalxml.org/about.htm. 218 9/11/02
the ability to return an electronic acknowledgment to a filer, date and time stamping, multiple filings and confirmations and requirements for the electronic envelope, among other elements.
XML, which stands for extensible mark-up language, is a rapidly growing standard for data sharing among applications that is being used by a growing array of industries. XML dates back to 1996 and is a set of rules or guidelines for designing text formats that allow developers to structure their data. It is license-free and platform independent.
Standards or protocols for communicating electronic information might be foreign to the legal community; however, they are common in other industries, particularly financial services. Financial institutions have long relied on protocols and standards such as FIX or SWIFT to send electronic communications to financial counterparts that direct a range of instructions, including monetary transfers and settlement instructions for stock trades. One of the standards currently being developed is Financial Products Markup Language (FpML), based on XML. "It's intended to automate the flow of information across the entire derivatives partner and client network, independent of the underlying software or hardware infrastructure supporting the activities related to these transactions."
66
The decision to adopt the LegalXML standard would appear to be a wise choice. It has the backing of the Joint Technology Committee of the Conference of State Court Administrators and the National Association of Court Managers.
66
http://www.fpml.org. 219 9/11/02
Its members include lawyers, developers, application vendors, judges, and court personnel. The organization has working and discussion groups dedicated to different aspects of standards development in the legal community, including the Court Filing 1.1 standard, which at the time of writing was under final review and was expected to become the de facto standard in February. A note of caution, the LegalXML standard is being developed by U.S. organizations. There might have to be modifications to accommodate Canadian courts.
5.12 Other, Less Critical, Issues While a number of critical issues have been outlined above, there are additional issues that while likely not critical will impact upon the ability to develop the EFSP model in a timely fashion.
5.12.1 Disparate Computing Systems & Applications Among Users While the EFSP model purports to be an electronic envelope that does not concern itself with the applications used to create the attachments (pleadings), unless some type of agreement is reached as to what programs are acceptable, the plan could become bogged down due to disparate technologies. Some might choose to turn their documents into Adobe files, others might select Microsoft Word, WordPerfect or even possibly Lotus Notes or some other word processing system from a bygone era. Firms will possibly have to support multiple programs and versions. This can be eliminated by imposing restrictions on the software applications that firms use for creating documents, but that is best left to individual jurisdictions to decide.
220
9/11/02
5.12.2 Electronic Evidence There is a concern that in preparing the electronic pleadings, firms will have to develop more extensive back-office operations for document creation to accommodate scanning technology for graphics and other non-text related items that will be used as evidence, such as photos. However, it must be remembered that most evidence, aside from affidavits, is entered at trial and roughly only 4% of cases reach that stage. The issue then becomes two fold. Does the document need to be turned into a digital format as part of the court record and, if so, whose responsibility will it be to turn that evidence into a digital format? These are policy issues that will need to be addressed by courts and apply to e-filing in general, not simply the EFSP model.
5.12.3 Possible Legislative & Regulatory Changes Required E-filing would require that courts revisit a few issues. First, Court Rules would have to be amended to accommodate electronic documents. Currently, most Rules outline the format of the printed document, but make no reference to the format of electronic pleadings.
Second, courts will have to revisit their hours of operation for filings. By automating the filing process, it opens the doors to 7/24 hour access to the courts. The Rules, however, dictate hours of operation and times for computing deadlines.67 Courts will have to determine if a litigant can file a document up until midnight on the date it is due or whether it's filing deadlines accord with the traditional hours of operation.
67
Supra, note 51, ss. 10,11. 221 9/11/02
Third, rules on who may file documents and how they may file them would have to be reviewed. For example, Rule 15 allows a party to file documents in person, by his counsel or the counsel's agent, or with leave of the Registrar, by correspondence, but there is no reference to filing electronically. Correspondence could cover that scenario but would need to have the Registrar's consent, which simply slows down the process.
As well, courts will need to make rules accommodating digital signatures as proof of signed documents. The issue with having to amend Rules or laws is that the changes take time to wend their way through the system, particularly if they require legislative action or endorsement.
5.12.4 Role Of The Agents Electronic filing at the Supreme Court of Canada could spell the end of the role of agents, which might be met with trepidation from the Ottawa bar. By the same token, it could provide Ottawa firms with an opportunity to expand their services and become an official e-filing service provider to the court, an extension of their current agency services. Ottawa firms have a rich history in providing valued advice on Supreme Court matters. It's unlikely that will be negatively impacted by a move to an EFSP model.
5.12.5 A National Standard: Getting Court "Buy-In" The key to building an EFSP market lies in the ability to get other courts on side and adopt a compatible e-filing model. This will not be an easy task. There are
222
9/11/02
many jurisdictions involved and disparities in technology among the courts. One direction the parties may want to consider is examining how financial regulators deal with a similar situation involving public filings.
Ignoring the criminal law for a moment, in their simplest form, civil courts are the regulator responsible for resolving disputes. As such, they have established a set of rules and procedures for doing so. This requires parties to disclose the grounds of their dispute in the form of documentation. Where your dispute is heard depends upon the type of dispute, where it took place and the level you're at in the dispensation process. Essentially, then, there are multiple regulators overseeing the dispute process, but little interaction among them.
If one look at securities regulators there are some parallels. Unlike the U.S., Canada does not have a national securities regulator. Rather each province has been responsible for overseeing securities regulation. In order to harmonize their approach to regulatory issues, they have formed the Canadian Securities Administrators, a forum of representatives from the 13 securities regulators of Canada's provinces and territories. They collaborate on rules and regulations to eliminate duplication and provide some consistency in rules across the country, particularly as they apply to public filings. Publicly traded companies are required by law to file a range of annual documents. In 1997, the CSA developed SEDAR, the System for Electronic Document Analysis and Retrieval (SEDAR) (www.sedar.com.) It is now mandatory that most reporting issuers file their documents with SEDAR. The CSA sets the rules for document filing and has appointed the CDS, Inc., a subsidiary of the Canadian Depository for Securities Limited, as the filing service contractor for the SEDAR system. As such, "CDS administers and operates the system, provides assistance to the filing community, and works with both the regulators and the filers to plan future enhancements to
223
9/11/02
the system....Documents that are filed in the SEDAR system may be retrieved electronically by the applicable securities regulatory authorities for review, where required, and acceptance."68 Once accepted, the documents can be accessed free of charge by the public through the SEDAR Web site.
The Securities regulators' approach to solving their harmonization issues provides a model that the legal profession can adopt to tackle the issue of electronic filing and create consistent and harmonious standards that can be deployed across legal jurisdictions. Much in the same way that Law societies have banded together as the Federation of Law Societies to tackle issues of mutual interest, an organization comprising representatives of various levels of courts could come together and develop a common standard for electronic court filing. This could include representatives from the Association of the Canadian Court Administrators, the Canadian Judicial Council and the Canadian Association of Provincial Court Judges. They could then address many of the issue, such as privacy, necessary Rules changes, etc. As well, a private/public sector consortium could be formed that is charged with the task of developing and maintaining the middleware and LegalXML standard to ensure that the system receives the appropriate attention needed to advance it as technology develops.
68
http://www.sedar.com/sedar/background_on_sedar_en.htm. 224 9/11/02
Conclusions And Recommendations
It's clear the legal profession is motoring down the digital highway. In the not-so-distant future, lawyers will likely be turning to ASPs to provide a range of technological and support services in their law firm environment, including document management and time and billing. As such, the ASP delivery model will become better understood and accepted by the profession and EFSPs would likely become an accepted part of the litigation cycle in the same way that e-filing has become an accepted means of filing tax returns. The growth of Internet and email communications, along with the automation of document processing means that it's only a matter of time before lawyers will be asking, if not demanding, that courts accept electronic pleadings.
However, many jurisdictions in Canada have yet to respond to this trend. One of the obstacles would appear to be a lack of resources. As such Canada's justice system runs the risk of becoming judicial road kill on the cyber highway if steps aren't taken to advance the legal community down the e-filing path.
A filing model based on third-party providers appears to be a viable alternative for those jurisdictions where the filings numbers are smaller and the investment dollars are scarce.
Such a model has its challenges, both real and imagined. First, it is not clear if there is a market to support the creation of an EFSP system without the participation of larger provinces such as B.C. and Ontario. Early indications are there might very well be the necessary numbers, provided it could be extended broadly to include agencies, boards and tribunals, as well as courts. It's clear, though, that more work needs to be done
225
9/11/02
fleshing out the viability of this marketplace. Success of the EFSP model hinges on such a business case.
Second, there are challenges around building a system that balances the private sector's ability to provide enhanced services to the marketplace with the court's need to control its records. Privacy and copyright will also prove challenging in this context. However, the experience of other jurisdictions suggests that these issues are surmountable.
Third, some court jurisdictions in Canada have not had the greatest success with privatepublic sector partnerships. In some cases, millions of dollars, have been spent little to show for it. However, many of the initiatives undertaken to date, have been mammoth, large-scale ventures involving large technology firms unfamiliar with the trappings of a legal marketplace. It's not surprising there have been growing pains. The attractiveness of this initiative is that it involves parties who have a solid understanding of both the processes and culture of the legal system and it is narrowly focused on one achievable task e-filing.
The greatest hurdle facing the project would appear not to be the technology, but the ability of the legal community to coalesce into a cohesive working group that can push the initiative forward. Building the technology is not the challenge. The challenge lies in getting buy-in from the various components of the legal system and building acceptable business processes that takes into consideration concerns around privacy and the sanctity of copyright. As such, the project is as much about communication as it is about building technological solutions.
226
9/11/02
The evidence is clear e-filing is the way of the future. The advantages of electronically filing and accessing court information far outweigh the disadvantages. In theory, e-filing should save time and money for all concerned while enhancing the amount and quality of information that can be quickly searched or accessed.
Naysayers will rightly point out that there are many difficult challenges to be overcome before that theoretical world becomes a reality. However, if pioneering initiatives were to be halted on the basis of that kind of thinking alone, humankind would still be stuck in the Dark Ages. The challenges in building an effective e-filing system for Canada's courts can only be met and overcome by wading in and taking on the hurdles one-by-one. Sitting back and waiting for problems to be resolved by someone else means waiting a long time.
The Supreme Court of Canada is among the best-positioned judicial institutions to test an undertaking of this type. The Court's relatively low volume of cases compared to other courts, the sophistication of appellate counsel, and the high-level intellectual content typically argued in its proceedings lend themselves to some degree of experimentation. It is analogous to other pioneering initiatives of the Court, such as allowing proceedings to be televised.
The key to effectively managing this initiative and convincing the legal profession and judicial community of its value is a measured step-by-step approach involving a series of progressive "wins." Introducing mandatory e-filing on a broad basis before all the legal and technological issues are resolved will do more harm than good.
227
9/11/02
6.1
Recommendations
The following recommendations are offered as one approach to creating an EFSP marketplace:
Implement the EFSP model on a "closed loop" basis that prohibits access to the electronic database by the public until issues involving public access, copyright and privacy are adequately dealt with.
To facilitate the development of the EFSP model, recruit 2-3 major law firms or appellate counsel as early participants in testing and using the EFSP system with filings to participating court test sites. Ask these participants to use the system for 3-6 months and then get their feedback.
Survey the legal profession to determine their level of computer know-how and Internet capabilities with the aim of identifying areas of weakness and misunderstanding, including possible price points for such a service.
Carry out a cost-benefit analysis to determine the potential size of the e-filing market.
Undertake an independent work-flow study to examine the cost savings that might entail to the justice system under an EFSP model. The study should remain independent of the courts to avoid bias and focus on how an EFSP model would modify internal staffing resources and cost structures in terms of document preparation and handling in both the courts and law firms to ascertain if there are, indeed, cost reductions that could arise through the automation of the pleading process. The study should examine how small-, medium- and large-sized firms prepare documents and survey a sampling of the profession to assess the average cost firms spend on document preparation for litigation purposes.
228
9/11/02
When the prototype is functional, form a national organization of judges and court administrators to provide feedback and help develop standards.
Establish the principle that in any EFSP system developed, control over the database that contains the court record lies with the court and not the private sector.
Make it clear that the EFSP system ensures courts continue to receive revenues from the filing of documents.
Examine more closely the issue of secure electronic signatures and the type of technology required to satisfy the evidentiary requirements of the Personal Information Protection and Electronic Documents Act and other admissibility issues surrounding electronic evidence and integrity of an electronically filed document.
Develop a communications strategy for the profession, judiciary and general public to effectively sell the benefits of e-filing and calm any concerns.
Similar to U.S. courts, establish a joint committee of federally and provincially appointed judges to oversee electronic filing issues. This committee should specifically look at setting guidelines around the following: Privacy and copyright issues. Document standards for the creation and use of attachments by legal counsel in electronic filings. (e.g., PDF, Word, etc.).
Form a joint committee of public-private sector interests to look into the practicality of establishing a public-private sector consortium that could develop the LegalXML standards in Canada. The consortium could also possibly be charged with the task of advancing and maintaining any middleware component of the technology needed for courts to operate the
229
9/11/02
single window electronic filing gateway, similar to the way CDS, Inc. manages the technology for public filings under the SEDAR system.
Respectfully submitted,
James C. Middlemiss, LL.B. March 2002
230
9/11/02
E-Filing for the courts in Canada (an idea whose time has come): A response to a discussion paper published by the Supreme Court of Canada recommending strategies for the selection of an E.F.S.P. The Honourable Jean-Jacques Fleury A retired Justice of the Superior Court of Justice for Ontario March 2002
231
9/11/02
I was asked to provide a critique of a discussion paper put forward by the Supreme Court of Canada for the development of a competitive standard of e-filing available to all courts in Canada. Let me say at the outset that I do not purport to have any expertise in the field of e-filing technology nor for that matter do I purport to have any expertise in the field of computer technology. I was told repeatedly that what was being asked of me was my reaction to this proposal as a retired trial judge who is not afraid of a computer.
I intend in this paper to firstly review in some detail the pros of the technology being offered. After completing this review of the positive aspects of the proposal put before me, I intend to consider its more negative aspects and at the end, I will give my opinion as to whether it could fly in trial courts across the land.
232
9/11/02
What is e-filing?
To understand what is at stake here, one must first take cognizance of what this e-filing technology is all about. I came across a handy definition of electronic filing, which I think would assist all of us if reproduced here:
Definition:
Electronic filing is the process of transmitting documents and other
court information to the court through an electronic medium rather than on paper. Electronic filing lets people get more of their work done with their PCs, to send and retrieve documents, pay filing fees, notify other parties, receive court notices and retrieve court information. (From: A Guidebook for Electronic Court
Filing written by J.E. McMillan, J.D. Walker and L.P. Webster.)
E-filing is still in its infancy in so far as the Canadian courts are concerned and it may become desirable before too much time elapses to have all courts adopt a common standard. What there is out there, in the real world, are attempts by various courts to allow plaintiffs and defendants to file all their pleadings electronically. Why is this a
desirable outcome? Primarily, to cut down on the cost of storing all these bulky files in registrars offices all over the land. Secondly, to accelerate the administration of justice, in that electronic filing can take place at any time of the day or night and it does not require any one to attend before a registry office person in order to file the necessary papers. As we all know there is a lot of truth in the old maxim: Justice delayed is justice denied. Anything that can be done in order to accelerate the pace of justice will
obviously benefit all participants in the process. Also with speedier processes, will come economies as far as civil litigation is concerned. And with economies, will also come
greater access to the civil justice s ystem as well as a greater acceptance of the system by a greater number of citizens.
E-filing is already available in the Superior Court of Justice in Ontario. It has started to find its way in Ontario, in Toronto, where it has been the subject of a pilot project. I will draw on experiences developed in Toronto in order to lay out some of the characteristics that should accompany any e-filing system. I am also aware of other e-filing experiences, in the United States, in Australia, as well as in British Columbia. However, because of time limitations, I have chosen to only deal with the Toronto experience.
234
9/11/02
What does one need in order to e-file a document?
What is required before e-filing can be implemented? Obviously one would require access to computing facilities as well as a modem or some other means of communication. One would also have to have access to common forms to be used in e-filing. Finally one would have to have access to the point where it is contemplated to do the e-filing. As trivial as these elements may appear to be, we will see as this paper is developed how crucial some of these elements may become in order to determine the feasibility of any e-filing system.
As we all know, any proceeding must be commenced by an originating document of some kind. This would obviously constitute the defining moment where the file is created and where a response becomes required. If no response is filed within a set period of time, then default judgment readily becomes the next step open to the instigator of the proceedings. However, because of the speed with which e-filed documents can be produced and because of the tendency of individuals to avoid facing up to unpleasant realities, it may become necessary to grant more time to individuals to consult a lawyer once the first document is issued. It is hoped that as a result of more time being given initially, this will cut down on the fairly common practice of making a motion to re-open the pleadings.
235
9/11/02
Case management
Because case management goes hand in hand with e-filing, it is difficult to mention the latter without mentioning the former. There has been a healthy but fiery debate amongst members of the bench concerning our new role as case managers. The debate has been mostly between the old style former barristers (whose views could be summarized as follows: why should anyone dare to second-guess experienced counsel who are taking cases to court?) and the newer style former business lawyers (whose views might go like this: why waste the courts time with litigation that should be settled and would be settled if counsel were experienced?). In the overwhelming majority of cases, however, nearly every one has finally decided to accept the position laid out by our chief justices and that is that all cases need some type of case management. As can be expected where parties have been very adamantly opposed to an issue, however, the level of response has been uneven to say the least and less than enthusiastic in certain cases. This is the type of reception I anticipate these same individuals will give to any iteration of an e-filing project.
236
9/11/02
Benefits of e-filing
E-filing should not be seen as a magic wand that will solve all the courts problems. It will basically reduce the amount of paperwork required around the court house and will be of great assistance to counsel (especially, the less organized ones) in finding their pleadings in any given case. It will be of assistance to the trial judge as well who will be able to have a more ready access to the file than is presently the case. It should also help in ensuring that fewer and fewer cases fall through the cracks and are allowed to sit there waiting for trial for inordinate amounts of time. With the project put forward by the Supreme Court, we are being invited to reach the following objective and I quote, from the discussion paper:
In this sense, our mission was not to propose E-filing standards or models for adoption by Canadian Courts, but to engage other jurisdictions and private/public sector constituencies in exploring the feasibility of private sector interests competing for the provision of secure, low cost e-filing services to practitioners in Canada with limited financial commitment from courts.
While compatibility or interoperability is a desired outcome, it is more a by-product of the EFSP model than the objective. The objective is to reduce the cost to courts to provide an E-filing service channel (that is to be in a position to accept and process electronically filed documents), and to reduce the cost for litigants to file documents.
Because of the British North America Act and its devolution of powers between the provinces and the federal authority it is always somewhat difficult to harmonize matters before the courts. Each provincial authority fixes its priorities and courts must then deal
with these priorities as opposed to those of some higher court. That is one of he reasons why it is so comforting to have obviously dedicated members of the Supreme Court staff describing an approach to e-filing which may make economic sense to some jurisdictions and describing some of the ancillary benefits (network effects) of this model to those who might choose to participate. It is only through initiatives of this kind that real cooperation may be envisaged by all the courts in this land of ours. This approach has one major advantage to it: it might make the costs of e-filing technology available to all courts in the land in that, notwithstanding the lack of the so-called proverbial critical mass in a specific jurisdiction, the same service would then be available from coast to coast, thanks to the universal accessibility to the system.
238
9/11/02
Differences in documents to be filed
However, let me point out at the outset how different the documents that form part of the record might be between the various courts. In Provincial court proceedings, there is generally very little by way of documentation that is required. Very often these are courts of summary jurisdiction, thereby underlining the flexibility and the greater amount of informality involved during the actual hearing. Whenever a party chooses to avail himself of the superior court system available in his province, however, he or she can be sure that a lot more will be expected of him than simply showing at trial to have his or her day in court. It is customary to file formal documents in response as well as in support of the claim filed by anyone. It is also customary to have an opportunity for cross-examining a party prior to the day when the trial takes place. There is a need for disclosure that far surpasses the burden placed on the parties at the lower level of courts. He or she is likely to have the need for a lawyer to represent his or her interests. When the time comes to consider an appeal then again there is a significant difference in the documents required. The difference is significant enough to make even seasoned veterans in the litigation field consider hiring a lawyer who specializes in appeals.
239
9/11/02
Need to teach e-filing technology
It is assumed for purposes of this paper that lawyers will be teachable and that they will adapt to whatever systems are chosen by the judiciary. As documented in the Toronto pilot project, there is a significant need for the teaching of the law firm staff. Since they are not likely to know about their pending case, it is unlikely that self-represented litigants would even bother to appear at these seminars organized for the law firm staff. It is safe to say that a large number of self-represented parties will require extensive coaching from court staff before they can file their documents using e-filing. This will obviously further tax a system already straining at the seams. Hence, the need for a satisfactory determination by the provincial authorities to subsidize any new initiative proposed by the Courts.
This is one of the cost components often not factored into the E-filing business case what I would generally call supporting a digital client base. This would include upfront costs related to training (which will also have a residual given that we can expect continual turn-over in the client population), as well as real-time support costs the demand for real-time telephone support for e-commerce applications is so large that it has spawned an entirely new industry in the form of call centers it has also been shown to be a critical factor in overall satisfaction ratings, i.e. if you do it poorly, it will reflect poorly on the overall service as well as the organization.
Assuming for the moment that, through some legerdemain, it could be established that there will not be a need for any further employee to be hired as a result of the adoption of e-filing technology by all the courts in the land, then we must ensure that all of our critical personnel receive the proper training required in the circumstances. As this
training is likely to be somewhat difficult and may require the acquisition of new skills,
there is likely to be some reluctance on the part of our most established employees who may not wish to learn another computer program as they are contemplating retirement in a few years. Some new incentives may have to be thought out by the government in order to bring these very senior employees on board. But allow me to be realistic for the moment and to not necessarily mouth off what the government wants to hear. It is highly unlikely that there will be substantial savings in terms of personnel in the next few years as a result of the introduction of e-filing technology. It is more likely that there will in fact be an increase in personnel as a result of e-filing. Why should that be? Simply to cope with the dual system that is bound to be with us for a few more years. It is simply down the road when everyone has converted to the e-filing system of doing things that there may be some real savings in time and personnel. In the meantime, it is a simple question of wondering who is best equipped to carry the load as between the government and private industry.
241
9/11/02
XML Language
It is supposedly a very simple language to learn and become proficient in in a few hours of dedicated training. The same comment can be made about a close relative of this language HTML. This last language HTML is the language of the World Wide Web and is to be used in creating pages by anyone who wishes to have his own page appear on the web. Unfortunately, while I have been a keen user of the web, and while I have been intrigued by the HTML standards, I have never bothered to sit down and investigate this language. And while there are a large number of programs purporting to simplify the task of writing in HTML, it remains a big puzzle for me. I assume that my lack of knowledge when it comes to the HTML language is not that exceptional especially if one considers that some of the most common Word Processing packages, such as Word Perfect and Word include in their most recent versions simple ways to save all of ones typing in an HTML format. Even with these simple conveniences, I have yet to try to conserve anything in HTML language. These last comments are only intended to be illustrative of the frame of mind of individuals like me who, although quite familiar with computer technology, nevertheless do not wish to engage in mastering any computer language because of a fear of failure. I am afraid that this might be the lot of many of my colleagues on the bench. Hence the difficulties inherent in introducing a new computer language in this equation.
As I understand it, this new language has already existed for some time and is being used as a dedicated language, particularly in legal applications. I have no doubt that its use is a must in the proposal put forward by this task force and as such, I may have to rally around it depending on my overall conclusions.
242
9/11/02
However, I cannot ignore the difficulties that such a language will have to overcome both with the bar and the bench. Especially if, as can be imagined, none of the major players in the word processing field is sufficiently interested to give its users the option of converting every thing in the XML language through a simple command. Obviously, none of the parties appearing in their own defense will be knowledgeable in this language which might trigger a request that there be a trained duty counsel available at all times whenever a document has to be filed (a factor again representing a cost component.).
243
9/11/02
Perceived reluctance on the part of judges to learn a new language
It does not matter how we cut it, I am reasonably certain that very few of my brothers and sisters on the bench will bother to learn the new language. If it can be made to function in this kind of hostile environment, then I have no doubt that the system will eventually rule the day. However, if it is predicated on a large number of judges learning the new system, then I am afraid that we will be in for a very slow implementation of this e-filing system. During the work on this paper, I was fortunate enough to have access to additional documentation provided by Mr. Murray. Amongst other things, he was kind enough to provide me with additional information on XML which seems to answer my initial questions as to the need for others having to learn the SML language. Here is what he had to say:
XML among other things is an inter-operability standard there is no requirement here for litigants to create XML documents or for Judges or Court staff to learn the XML standard. The XMLing of the document is embedded in the interface. The diagram below may prove helpful:
244
9/11/02
XML <court>Suprem e Court of Canada</court >

<applicant>John Smith</applicant>
Middle Ware
Connector
- Resides within Court

- Records filing - Holding area pending clerk review
- Resides within Court

- Maps XML tagging to custom data elements in Court case management
Court Case Managemt
1. Filers would only see the filing form and attach their MS WORD, WORDPERFECT, PDF, etc. documents to the form and submit 2. The data would be reformatted by the system according to the XML standard 3. The middleware component would receive and process the data 4. This component has been developed by project partners for free distribution to courts. 5. The connector maps the XML tags to the custom data elements in the case management system in each court 6. Each participating court would have to develop the connector component.
The benefits of this architecture are as follows:
1. Any interested organization (E-filing Service Provider) can compete by creating a web form that packages the data in an XML Court Filing 1.0 compliant fashion.
245
9/11/02
2. Any interested organization (E-filing Service Provider) can transmit filed documents to any court using the middleware component. 3. The E-filing form/service works with any case management system because the XML tag definitions are mapped to the custom data elements of the particular brand of case management system in use by the court.
Notwithstanding these honest words of re-assurance, I am still left with a sense of malaise vis--vis the introduction of XML in the equation. It is as though I did not believe the words of re-assurance. I also hark back to the words: 4 a) Each participating court would have to develop the connector component. and immediately think of the worst scenarios. For some reason, I tend to think that many of my fellow judges will share this feeling of malaise and will be therefore repelled at the idea of adding a new language to what seems to work quite well without any specific intervention. Why fix something that aint broken?
246
9/11/02
Difficulties
In any event, it its debatable whether this new technology will genuinely cut down on the amount of paper being stored in the registrars office. Because of the natural tendency of individuals to prefer handling paper rather than reading off a computer screen, it stands to reason that all documents will still be filed in a paper mode or printed by one of its users. If one couples that innate tendency to want paper products in hand with the complete lack of unanimity in the various court houses with what constitutes a legitimate and reliable means of preserving documents for posterity, one can see that a real e-filing system is still a few years away. For such a system to fly right off the bat, there would be a minimum of five requirements:
1. A lead organization committed to its implementation 2. The necessary funding to cover the change management costs of implementing a new system. 3. The necessary transition funding to cover the increased operational costs of duplicate service channels over a 3-5 year period. 4. A cross-jurisdictional body charged with overseeing the development of information management and information technology standards specific to the Courts. 5. An ISP (Internet service provider) who believes there is opportunity for return on investment in the development and support of an E-filing system for legal practitioners in Canada.
247
9/11/02
The present proposal does address items 1 and 5 but does not appear to me to address items 2, 3 and 4, which are essential to its viability.
Furthermore, there is a problem with the choice of any ISP. As I understand the situation, at the moment, the project is predicated on the near gratuitous services of QuickLaw Inc., SOQUIJ and Juricert Services Inc. developing a prototype that may become usable in the future and may allow them to recoup their initial investment. In other words, the courts are invited to become partners with private enterprise in developing a system that will be limited to a set of paying participants. Just putting the problem in those words highlights the difficulties which many of my colleagues will experience I am sure.
Why should government have to go to bed with any private entrepreneur? While I acknowledge that the proposal as it is being put does not contemplate any single entrepreneur holding the bucket, it will turn out, in fact that only QuickLaw and Soquij will have the universal appeal to attract large numbers of subscribers. This may have something to do with their present position as holding a virtual monopoly on legal databases or it may have something to do with the level of satisfaction that they give their present clients but no matter what, they will hold all of the trump cards I presume, especially when it comes time to register documents in a Canada-wide database searchable on the internet. I hasten to add that I see nothing wrong with these two companies having a near monopoly position but I wonder if all of my colleagues will be of the same opinion. Further more there is something inherently wrong when government is seen as in some way facilitating the financial success of one particular entrepreneur over others.
248
9/11/02
10 Right to privacy
However, there is a more fundamental problem that is not highlighted in the preceding discussion and it is the invasion of privacy to which such a system will likely expose all of the parties. Granted the litigation process is one that by its very nature is prone to invasions of what one might consider his or her privacy. Because of the requirement that justice must not only be done but must also appear to be done, there is a general requirement that everything that forms part of the record become part of the official file. Because the official file is normally opened to public scrutiny the problem arises as to the rights of privacy of the individuals concerned in the litigation process. As things stand presently, there is enough of a disincentive in the fact that any individual must attend at the individual courthouse where the papers are filed and that he must ask specifically to have access to the file in question. The fact also that he must make his own notes on any file does make the process somewhat cumbersome.
249
9/11/02
11 The chill effect
However the same natural impediments to simply satisfying ones curiosity do not apply when one simply has to join a site on a computer and click on a few keywords in order to gain access to any and all records containing these few keywords. One can imagine that some individuals with a lot of time on their hands could easily surf the various files in order to find out the juicy details of each case and use them for their own gratification or for publishing them in some sleazy magazine. In such an instance, one could hardly protest or take the individual to court for invading ones privacy and yet nobody in his right mind contemplates seeing the murky details of all his dirty laundry being aired in public. Because of the power of search engines, to-day, and because of the need to protect individuals who may wish to avail themselves of the public court system as it stands now, there will have to be a safeguard built into the e-filing format that will prevent this kind of unreasonable use of materials which have become part of the official record. Granted parties may apply for the sealing of individual documents such as income tax records, and other financial documents as well as medical reports. However, it will be much more difficult to block out from publication the transcript of an individuals testimony even though a judge hearing the case has decided that such evidence was not truthful. Normally, under present conditions, such a transcript would not find its way into the record until the appeal process was well along the way and only an individual who had access to the trial testimony would have found out about this evidence.
I can easily foresee situations where, say in a historical sexual assault case, the victim might not want the whole world to know the intimate details of what was done to her but where the publisher of a sleazy magazine might wish to titillate his readers by publishing the sordid facts in their entirety. It is difficult to ascertain what the chill effect might be to prospective witnesses but some hesitation is to be expected if there are no exceptional
safeguards put into place. However, that chill effect should not be sufficient to rule out the potential for e-filing and the convenience of having a central database. It may be advantageous to postpone the benefit of the central database until such time as the appropriate safeguards have been put into place. This last mentioned postponement may have the benefit of reducing the objections to the EFSP drastically. What kind of safeguards can one devise to prevent such indiscriminate use of private matters. If it were not for freedom of the press, I am sure that all sorts of solutions would spring to mind. However, because of this constitutionally protected right, life in the fast lane has become somewhat more complicated. It is obvious that any restrictions will have to be finely drafted and will sooner or later have to face the requirements of the Supreme Court of Canada. In the meantime, why not secure the site with clear undertakings of any would be members that they will not use the site for the purpose of digging out the filth on any party or other individual with a view to publishing it. With this undertaking would come also a clear acknowledgement of the foreseeable harm that could be caused by such conduct as well as there would be some formulation of the amounts of dollars that could be claimed as a result of the violation of these undertakings. Also it should be open to any individual party about who some materials may be filed to apply to the court to have same clearly red-circled, so that same may never be published because the negative character of the information outweighs the interest of the general public in being told of the wrongdoing of some of the individuals who make up this same public.
251
9/11/02
12 The case for a competitive EFSP
I am particularly impressed by pages 5 to 12 of the document entitled: Discussion Paper: Electronic Filing Service Provider Model. It does contain a very logical argument towards the selection of a competitive e-filing Service Provider. It starts off by stating the two principal arguments in favour of a competitive EFSP (Electronic Filing Service Provider:) that of the economy of scales and that of focus. Obviously the more concentrated the industry of electronic filing will be the better the chances of saving some money and also the better the odds of having a specialized and focused EFSP who will seek to keep his clients happy. It then goes on to argue in favour of private investment as opposed to government investment, pointing out the obvious savings together with the savings inherent in any private industry that has to compete with others. It then points out the advantages that accrue from having single window access to an integrated information base of case-filings across all jurisdictions. While I am not satisfied that the argument concerning loss of privacy is addressed appropriately, I would not like this project to bite the dust simply because of this difficulty. It then goes on to argue how constructive the use of standard forms might be if all courts in the land were to use such a common database. It also points out the obvious savings to the profession from using a common Service Provider for filing documents in any court across the land. It then goes on to state that there is room for growth on the part of the EFSP as well because of its ability to address issues such as records management and effective litigation support systems which to this stage have been avoided by small and medium sized law firms because of cost features.
252
9/11/02
13 The electronic envelope
The single most compelling argument remains however, the type of service that is being offered: it is described as an electronic envelope and courier. What is meant by that is that it is primarily interested in transporting digital information between litigants and the courts. It does not matter what word processing package a particular law firm may be using; what matters is the electronic envelope not the contents of the file. The information required to complete the transaction is limited to source and destination addressing, identification of subject-matter, time stamping, 3rd party notification, and instructions on how to process the contents. It is strange how resistant one can become to what is obviously being said. I am sure that a lot of the people reading these words will say to themselves: what do you mean when you say that the contents of the file do not count? Well, I mean exactly what I am saying: the contents of the file do not count at this stage of the proceedings, all that counts is the electronic envelope in which these contents were placed. It will be up to the EFSP to ensure that I can have access to the contents if I so wish. In other words it will be up to the EFSP to ensure that I can retrieve the information contained in the envelopes and I will not have to upgrade my own word processing package to gain access. It could be done through my browser or through some other tool provided by my EFSP.
253
9/11/02
14 The Toronto project
There already have been efforts at setting up e-filing systems in Canada. I am thinking in particular of the Toronto pilot project that met with a lot of success to the point where they are now moving to spread the project across the province. Why was no mention made of this project? In particular, since I gather that any project worth its salt will have to be tied to a case management system. That is one of the crucial criteria retained by the Center for State Courts in the United States. In a book published on the occasion of one of the seminars organized by the Center for State Courts it outlined in great detail the requirements of any such e-filing system. The book is worth reading and I commend it to anyone having to make any decision in the field of choosing a specific e-filing technology. It is called: A Guidebook for Electronic Court Filing and is downloadable from the Internet. This book only covers part of the argument raised in the discussion paper. It does not address some of the underlying obstacles to the implementation of an e-filing system especially in those jurisdictions with lower volumes of filings and lack of resources. It also does not consider the central point proposed in the discussion paper that of the benefit of considering emerging e-commerce models in the private sector that is so central to the proposed EFSP model contemplated in this matter. I gather from reading the evaluation report prepared by the independent committee that had as its main function that of assessing the system that it concluded that it was an outstanding success. During the first eleven months of the project over 3,000 documents were successfully e-filed by less than 85 law firms. All the law firms participating in the project were enthusiastic and willing to continue down the road of e-filing technology provided that it was made available to them. Their interface dealing with e-filing was provided by the supplier of their case management package Sustain. Because of that close relationship, there never was any doubt that both systems would talk to one another.
254
9/11/02
One of the obvious targets of any e-filing technology would have to be the Toronto market. Toronto is the biggest municipal center in Canada and as such has the largest number of lawyers able to use such a system. Furthermore, it also has the largest number of judges in the country and obviously any goodwill to be obtained from participants in the project should not be overlooked. Furthermore, it is also the main seat of the Superior Court of Justice, which is the largest court in the land, and since that court has invested so much time and energy in its own pilot project, one would have thought that it would have been considered crucial to consult them along the way. Which brings up the question as to whether the private partners are interested in setting up a system where Ontario and British Columbia would have no part.
255
9/11/02
15 Pre-requisites
Before one even sits down to devise an e-filing system, one should grapple with a few fundamental principles: these are, firstly, to assess the needs of the individuals who will be using the system and secondly to devise a system that will meet those needs, without forgetting the need for expansion of any new system.
This gathering of information may reveal different needs amongst different participants. For example a busy trial court of general jurisdiction might need primarily a case management system while an appellate tribunal may primarily wish to have a document management system. Hence the need for a multi-disciplinary platform which can accommodate both needs in one envelope.
As will be readily apparent to anyone familiar with the Ontario system of justice, the requirements of a busy trial judge are diametrically different from the requirements that a court of appeal judge would have. As part of his case management functions, the trial judge would need to have access to all of the pleadings, the interim rulings of any judge, a calendar of events, both past and future as well as a list of available dates for trial. Whereas the appellate judge would want to see in some kind of order all notices of appeal, facta, transcripts of trial, as well as casebooks. Her interests are channeled more towards the orderly reading of all documents before her. Whereas the trial judge is not interested in reading the materials in great detail because he will not be the trial judge. His main function is to ensure that the trial take place within a certain reasonable time period. As part of these functions it would be imperative that the trial judge check to make sure that all of the necessary preliminary steps have been taken. Because of the structure of the case management system, it is essential that the judge have access to the data banks contained in the registrars office. Whereas the appellate judge could be
content with taking a diskette or a CD-Rom to her computer without having to bother with connecting to any databank after she has downloaded the particular information required for the case on appeal.
There is a lot to be optimistic about the system proposed in this case. Firstly it deals with the Internet as the main means of access. This should go a long way towards answering some of the critics of the Toronto project. Secondly, the prospective partner in this case, Quicklaw Inc. is very knowledgeable when it comes to legal matters and the kind of difficulties encountered by the Toronto project when accessing their help lines are unlikely to reappear when they deal with staff from Quicklaw. Thirdly, with the advent of cable and quick access from the bell telephone lines through ASDL, it is likely that the law firms will see their electronic filing go so quickly that they will even wonder if something went wrong. The only problem I foresee is the systems ability to link with Sustain in a meaningful way. If there is no possibility of linking with Sustain then I am afraid that there is very little likelihood of the Superior Court of Justice of Ontario joining the e-filing bandwagon at least in the next few years. If on the other hand, someone can devise a language that will speak to Sustain and also be able to collaborate with the internet, then I would hazard a guess that at least one half of the Toronto boosters would start rooting for this new device and that within a couple of years every one in Ontario would have migrated to the new EFSP.
As I now understand the XML language and its role in the running of the computers I cannot see any major difficulty in its being able to talk to the Sustain system. But in light of the resistance to change that is endemic in legal circles, it will take a lot of cajoling to convince Ontario key players of the wisdom of a move to a single EFSP. One thing I can say for sure is that this initiative will have to come from some highly placed source. I do not foresee, judges jumping at the chance to learn XML language. In fact, I simply dont see our judges getting excited about the new e-filing process unless
257
9/11/02
one of our star judges is himself sold on the idea and decides to make it a personal issue. With the judges growing familiarity with the Sustain project, I have some difficulty seeing them excited over the use of one form of e-filling as opposed to the other. Especially where the database will be much smaller and as a consequence is not likely to cause the same kind of concerns as might be the case if one were dealing with a national database where everyones pleadings would be filed and searchable by keywords. Since in the former case, access would have to be negotiated with one of the court staff, this also takes away a lot of the concerns. And the atmosphere is bound to be quite different than what might be prevailing were he or she simply left idle in front on his or her computer in search of gossip material.
258
9/11/02
16 Conclusions
As can be seen from my previous comments, I have only lukewarm feelings for this project. Let me explain myself. As much as I do believe in technology, I believe that it should be there to help us function, not simply to change things around. It is time for thinking seriously about using e-filing technology. However, it should clearly be understood that the needs of an appellate tribunal are not those of a trial court and that it is important to consider those disparate needs when figuring out how to arrange the efiling system . I am satisfied that it will be sufficient for a trial judge to continue using the old document driven approach for a few more years to come and that it will become apparent to trial judges that e-filing is far preferable when they will all have had extensive experience with case management. It is only at that point when judges have been repeatedly exposed to the frailties of the document driven approach that I anticipate that trial judges will embrace e-filing technology as a group.
Until such a time as my fellow trial judges are of a mind to adopt such a technological approach as their own, I think that it would be futile to attempt to force one down their throat. Especially after one considers their notorious jealousy over their own independence. Who knows, however? They might be able to set aside their differences to work in the best interests of the legal community as a whole.
I think that in the immediate future, this project should be encouraged to go ahead to cover the Supreme Court of Canada as well as the Federal Court of Canada and any other provincial court that may consider joining. Once the basics of the system are in place, then I would recommend that somebody contact the Toronto team with a view to determining whether their technology can be married together with the project put forward by the Supreme Court. If the answer is in the affirmative, then I would suggest
that somebody be dispatched to the Chief Justice of the Superior Court of Justice in order to make him come on board and that one of the courts star judges be appointed to the task of selling the project to his colleagues.
I have nothing but admiration for the team that Mr. Murray put together in order to press on with this task. I am also significantly impressed with the fact that Quicklaw Inc. and SOQUIJ have both decided to collaborate on the matter of setting up a system where they would be the single EFSP for their respective constituencies. And although Juricert is a newcomer to this retired judge, I have no doubt about their ability to secure the system so that only authorized users have access to it.
All of which is respectfully submitted
The honourable Mr. Jean-Jacques Fleury, Retired Justice of the Superior Court of Justice
260
9/11/02
APPENDIX 1: Discussion Paper: E-filing Service Provider Model William Murray, Government Online, Supreme Court of Canada Gary Pinder, Government Online, Federal Court of Canada February 2002
261
9/11/02
Executive Summary
1.1
Introduction
In response to the federal government's commitment to provide electronic access to government services by 2004, the Federal Court of Canada and Supreme Court of Canada submitted Government Online (GOL) Pathfinder project proposals in the area of E-Filing in the Courts. Project proposals were rated on the degree to which they advanced the GOL vision in their exploration of alternative approaches to the secure delivery of citizen-focused electronic services that integrate information sources across organizations and across jurisdictions. Both projects were approved as submitted.
Each proposal approached the subject of E-Filing from a different perspective. The Federal Court proposal focused on exploring standards that would enable the development of E-Filing solutions with potential application in any court that adopted the standard. The Supreme Court of Canada proposal expanded their existing E-Filing efforts to include the exploration of an alternative business model that would provide private sector hosted E-Filing services for courts across Canada. Despite the divergent approaches, these projects have rapidly converged around the exploration of a conceptual model for a standards based E-Filing Service Provider (EFSP) market, which could provide secure, low cost E-Filing services to legal practitioners in Canada.
1.2
Conceptual Model
EFSPs could potentially provide a common E-Filing/document management platform that would interface with individual court case management and records management systems. They could provide single window access for the initiation of cases and filing
of documents into multiple courts, and across multiple jurisdictions. In addition, filed documents and decisions could be accessed from the service provider, providing single window access to the consolidated digital case file from trial court to final appeal. Proponents of this model site many advantages, including: The cost, risk, and benefits of such a system could be shared across the entire community, providing an affordable approach to electronic service delivery for all jurisdictions. It provides for the seamless flow of cases between jurisdictions. It provides for a comprehensive cross-linked digital warehouse of decisions, transcripts, factums, summaries, and in process information not currently available. It promotes the consistent treatment of key issues relating to privacy, security, copyright, etc. It facilitates access for litigants by providing a common interface and single registration for the initiation of cases and filing of documents, regardless of court or jurisdiction.
1.3
Traditional vs. Internet Enabled E-Filing
The EFSP model is a significant departure from traditional E-Filing models in that it leverages the ability of governments to create a market for the delivery of low cost EFiling services to legal practitioners in Canada. Traditional models provide E-Windows into current court operations. This approach focuses on the operational requirements of an individual court, resulting in duplication of costs, and disparity of approaches across the system, and discrete islands of information within each court or jurisdiction. The Internet provides an opportunity for service providers to intermediate in the relationship
between courts and litigants. Service providers add value by sharing the cost of the service across a much broader community, ensuring a consistent approach, providing single window access to a broader information base, and relieving the courts of the complexities and expense of developing and supporting an electronic filing service.
1.4
Standards as a Key Enabler
For this to be technically feasible however, multiple courts must be capable of accepting and processing information entered through an EFSP as part of a filing. The LegalXMLs Court Filing 1.0 standard being considered by the Electronic Filing Project Advisory Committee (EPAC), a consortium of federal and provincial organizations under direction of the Federal Court, provides this necessary glue layer for the EFSP model. The standard is a key enabler in the creation of an EFSP market. Private sector interests wishing to compete in this market need only develop a Court Filing 1.0 compliant EFiling application to act as an E-Filing gateway to courts that have adopted the Court Filing 1.0 standard.
1.5
Private Sector Partnerships
With sufficient support from the courts, a potential investment opportunity for private sector partners interested in positioning as an EFSP within the judicial system is created. Given the specific mix of highly specialized skill sets, as well as the risk and capital cost involved in such a project, a private sector partnership may have significant advantages: The financial risk, including capital and operational costs would be born by the private sector, resulting in a low-cost solution for the courts. Private sector partners focus on electronic services, while the courts focus on managing, processing, hearing and deciding cases.
264
9/11/02
Private sector expertise in the development and operation of electronic services. Market forces will drive cost/quality improvements and service innovation.
A consortium of private sector interests (Quicklaw Inc., SOQUIJ, and Juricert Services) have committed to the development of an EFSP prototype based on the LegalXML Court Filing 1.0 standard. The prototype will validate the technical feasibility of the EFSP model, and assist these companies in assessing the business case for further investment. The Federal Court of Canada and Supreme Court of Canada have agreed to participate in the demonstration of this service with a targeted completion date of March 31, 2002.
1.6
Feasibility Report
Consideration of key policy issues will be undertaken through a feasibility analysis that will be conducted in parallel with the development of the prototype. The Feasibility Report will consider issues like security, privacy, and copyright that arise in the transition to E-Filing, and examine these issues in the context of the EFSP model. The report will include academic, practitioner, and judicial perspectives, and will be made freely available to interested parties. The target date for the report is March 31, 2002.
It is hoped that these efforts will provide an objective assessment of the feasibility of an EFSP market for the provision of secure, low cost E-Filing services to legal practitioners in Canada. For such a market to exist however, there has to be sufficient support from the Courts. It is therefore crucial that the Judiciary and court administrators be well informed of the potential benefits as well as the key issues that accrue from this approach, so as to provide every opportunity to consider the EFSP model as a potential E-Filing solution within their jurisdiction.
265
9/11/02
Background
The Supreme Court of Canada and Federal Court of Canada submitted separate project proposals for funding as Pathfinder Projects under Government Online. Both projects were approved for funding as submitted.
The Pathfinder Project funding provided an opportunity for federal government departments to explore approaches to the secure delivery of citizen-focused government services that integrate information across organizations and across jurisdictions. The Federal Court project focused on exploring information management standards to promote the development of commercial off-the-shelf E-filing applications, and data-interchange between jurisdictions. The Supreme Court Project focused on exploring the feasibility of relying on private sector service providers for the provision of e-filing services for Canadian courts. Despite their divergent approaches, these projects have converged around the exploration of a conceptual model for a standards-based E-filing Service Provider (EFSP) market, which could provide secure, low cost e-filing services to legal practitioners in Canada. These projects will conclude March 31, 2002.
266
9/11/02
Project Partners
In the context of this project, a consortium of public and private sector interests have entered into a cooperative agreement for the joint exploration of the technical feasibility of the EFSP model. The project partners include the Supreme Court of Canada, Federal Court of Canada, Quicklaw Inc., SOQUIJ, and Juricert Services Inc. The project partners have been brought together by a common interest in: Ensuring the availability of secure, low cost e-filing services to legal practitioners A concern with the problems arising from the isolated development of E-filing services as an extension of the operations of each court A recognition of the importance of information management standards to the development of commercial E-filing solutions and the interchange of data A recognition of the potential value in the application of emerging e-commerce business models for the provision of E-filing services
There will be no exchange of monies or other consideration between partners in the context of this project. The cooperative agreement forms the basis of understanding for the project partners, and is based on the following principles: The approach should not result in an exclusive or protected market for QL or SOQUIJ, but rather should enable the development of a competitive market space for the provision of E-Filing services in Canada. The cost of developing the system would be born by QL & SOQUIJ The Courts would only cover the cost of interfacing their case management systems with the E-Filing prototype system
SCC and Fct would retain the right to use, and QL & SOQUIJ agree to grant royalty-free licences for use of the middleware software developed as part of the Prototype to other federal and provincial courts and tribunals in Canada.i
There is no commitment from the courts beyond the life of this project, and their participation in the testing and demonstration of the technical feasibility of the EFSP model. The outcomes of this project will be broadly shared with all public and private sector interests. It is hoped that these efforts will promote the development of an E-filing service provider market which will provide secure, low cost e-filing services to legal practitioners in Canada.
268
9/11/02
Pathfinder Theme
Consistent with the pathfinder theme, the partners involved in this E-filing initiative are committed to fully exploring the feasibility of this model. This work includes: The consideration of Legal XMLs Court Filing 1.0 standard by the Electronic Filing Project Advisory Committee (EPAC) a group of federal departments and agencies under the leadership of the Federal Court. The development of an E-filing service prototype jointly funded by the private sector partners based on the Court Filing 1.X standard A broad examination of the key issues surrounding the EFSP Model and electronic filing in general by recognized authorities representing Judicial, practitioner, and academic perspectives. Raising awareness and understanding of the potential advantages of the EFSP model across jurisdictions
As pathfinders however, it should be recognized that this work does not constitute an endorsement of the EFSP model, but rather a commitment to the comprehensive and systematic exploration of an alternative approach to E-filing for the purposes of improving our collective knowledge in this area.
269
9/11/02
Business Models and Electronic Service Delivery
When we think of electronic service delivery, we immediately think of the Internet as the communications infrastructure. Add to this the fact that the browser has emerged as the standard for navigating the Internet, and an organization planning to provide access to and deliver services electronically, need only create a web interface to their current operations, and they are in business. We can think of this as using a traditional business model for the delivery of electronic services essentially, we have created an electronic window into the operations of the business. To make it all work smoothly however, the new service delivery channel its inputs and outputs must be integrated within the existing organization. Additional resources, skill sets are hired to manage and maintain the technology for this new channel. More technology, resources and skills are required to manage and support the new electronic client base. And still more technology, resources and skills are required to manage the digital information. Despite the potential gains from streamlining processes we have succeeded in adding considerable cost to the business.
In the private sector, the added costs are offset by closing down or transitioning from traditional means of service delivery to arrive at a viable business case. This scenario is not as easily applied in the public sector, and it is especially difficult in the courts. Given the current fiscal climate, workload increases, and resource constraints most courts operate under, it is difficult to justify the diversion of resources away from core activities like processing, hearing and deciding cases. Without significant increases in operating budgets to support electronic service delivery initiatives (E-filing), the added costs must
be financed through the diversion of resources from traditional service delivery mechanisms (in the end doing little to improve access to justice), and/or high service fees that are passed onto the litigants.
This approach to E-Filing however would be in many respects paving the cow path. Instead, we need to examine the potential value of applying emerging private sector ecommerce business models for the provision of E-filing services. Similar in the way networking computers within organizations in the mid 80s resulted in a restructuring of those organizations (business process re-engineering) to achieve significant cost/quality advantages, Internet enabled business models are restructuring entire industries by using the Internet to enable new relationships between organizations to achieve significant cost/quality advantages.
271
9/11/02
Traditional Vs. Electronic Filing Service Provider (EFSP) Model
Approaches to E-filing based on traditional business models involve the vertical integration of process layers within each organization in effect creating an EWindow into each courts operations. The components required to achieve this would be consistent across organizations, and would typically include a web interface (E-filing application), document management system for the management of electronically filed documents, and a case management system to track the disposition of cases. The Internet provides the infrastructure to communicate with clients and other business partners.
Each of these layers involves a one-time capital cost, as well as an on-going maintenance cost. Given that the acquisition, development and maintenance costs for the technology, as well as the support costs of an electronic client base would be replicated across the Judicial system, the high cost of this approach would make it difficult for any single jurisdiction to justify an E-filing initiative. If a cost-recovery strategy is employed, the resulting service fees would be prohibitively high and a deterrent to using the system. In addition, we can expect considerable disparity between these systems in terms of user interfaces, authorization procedures, security, computing platforms, and data models resulting in significant obstacles to sharing of data between them.
The Internet is potentially much more than a communications infrastructure however. It is a powerful and disruptive force that is transforming entire industries. While these
272
9/11/02
forces are extremely complex in nature, we can to some degree explain this transformation using the economic principles of Economies of Scale and Focus.
The principle of economies of scale suggests that unit costs will decrease as the volume of production increases. From an E-filing perspective, we can expect transaction costs (filing fees) to decrease, as the volume of filings increase, and accordingly, the lowest costs would be achieved where all filings (across all jurisdictions) were processed on a single platform.
The principle of focus suggests that quality is increased and cost is decreased through specialization. In this sense, organizations that attempt to internalize all of their various business functions and service delivery mechanisms ultimately add cost to their business, and sacrifice quality in other areas areas that are often core to the business i.e. the processing, hearing and deciding of cases within the courts. Conversely, we can expect better quality and lower cost E-filing services from organizations whose core business is in the delivery of electronic services.
Together, the principle of economies of scale & focus provide a powerful framework for understanding the economic advantage of the EFSP model over E-Filing strategies based on traditional business models. Simply put, where enough demand exists for a sufficiently homogenous service, (E-filing) the consolidation of that service on a single electronic transaction platform will result in increased quality and decreased cost of service.
273
9/11/02
6.1
EFSP - Economic Advantages
Looking at the EFSP model, the E-Filing component that was previously replicated across all courts/jurisdictions is now centrally operated as an E-Filing Service. As a result, we can expect decreased transaction costs and higher quality of service resulting from specialization (focus) and economies of scale. Conversely, the courts could avoid diverting scarce resources from core business areas to cover the development and maintenance of a new service delivery channel.
6.2
EFSP - Continuous Cost/Quality Improvements through a Contestable Market
Beyond the notion of consolidation in the EFSP model is the notion of a contestable market space. While conceivably some agency of the government could act as an EFiling service provider, they would be without the benefit of competitive forces. Monopolistic conditions do not produce client-focus competitive conditions do. Arguably in many cases government programming may be the preferred or only vehicle for the provision of services. Where sufficient demand exists, and public interest is not compromised however, the market provides the competitive forces necessary for continuous cost/quality improvements and service innovation. In addition, an investment opportunity is created for private sector interests promoting the development of industry within Canada.
6.3
EFSP - Document Management - Copyright and Privacy
Comparing the traditional E-filing model with the EFSP model, the function of Document Management has been un-bundled, with Document Archival (court of record) services being retained by the courts, and search & retrieval services provisioned by the EFSP. Again, the economic advantages of scale and focus apply here. Far more important
however are the advantages that accrue from having single window access to an integrated information base of case-filings across all jurisdictions.
Providing electronic access to case-filings raises concerns over copyright and privacy. While all documents filed in the courts are in the public domain, (and provisions exist for the protection of documents where conditions warrant), it is generally recognized that certain protections of privacy inherent in the burden of searching through hardcopy filings, do not exist in the electronic world. Given the accessibility (single window access), and the powerful search tools available, there is great potential for the misuse of electronic information bases of case-filings. With the publics concern over individual privacy, it is likely that public access to electronic case files may deter individuals from seeking Justice through the Courts. Conversely however, the notion of an open court is fundamental to our concept of justice, and the protection of documents filed in an open court should be by exception, and not by rule.
It may also be the case that copyright exists in the arguments contained in case filings. Providing access to electronic copies of case filings will facilitate (promote) the borrowing of legal arguments from similar cases. Furthermore, such access may constitute an act of publishing, both of which would infringe on the rights of the copyright holder.
The EFSP model has two significant advantages over the traditional model with regard to privacy and copyright. Firstly, service providers can be expected to levy a fee for access to the materials filed on cases. This may be bundled as a subscription fee, or a per transaction basis. The fee constitutes a burden to the access of this material, equivalent in nature to that which exists in a paper based world, deterring the misuse of such material. Secondly, the filing of and subsequent access to documents represents a transaction
between the service provider and the practitioners, and issues surrounding copyright would as a result be negotiated between these parties and not the courts.
6.4
EFSP - Movement of Cases within the Judicial System
There exists a significant cost and delay associated with the movement of cases within the system relating to the re-filing of authorities, transcripts, decisions, and related materials produced in lower courts. If courts follow a traditional business model strategy in the implementation of E-filing, information management standards will be decided in relative isolation, and these costs and delays will persist and perhaps be further aggravated in the transition to a digital case file. The EFSP model is based on a robust and mature information management standard that will enable service providers to play a crucial role in the interchange of documents between courts. While arguably each court would maintain a primary copy of all documents produced at that stage of the process, a service provider could provide an acceptable copy for reference as a case moves through the system, thereby removing cost and delay related to the transfer of material produced at earlier stages.
6.5
EFSP Client Perspective
It is essential that any E-Filing strategy consider the clients perspective. If the system does not provide significant value to the client, they will not use it, resulting in significant expense with little or no gain. We have already dealt with the matter of transaction fees.
Unless the courts are in a position to finance the development and operation of an EFiling system without concern for cost-recovery, the EFSP model is the most attractive approach to providing E-Filing services from a transaction fee perspective. Significant advantages accrue in the EFSP model beyond lower transaction fees however.
If courts follow a traditional business model strategy in the implementation of E-filing, we can expect significant differences in user interfaces, registration, identification and authorization procedures, etc. between courts/jurisdictions. Dealing with these differences translates into higher costs and delays to the litigants. Under the EFSP model, a practitioner could file documents in any court/jurisdiction through a single interface, with a single authorization procedure. While it may be argued that many practitioners work within a single jurisdiction, it is generally recognized that the practice of law in Canada is trending towards the development of areas of expertise which is being applied across jurisdictions, as opposed to practice based on traditional jurisdictional boundaries.
277
9/11/02
Extending the EFSP Model
Extensibility is a key factor in any service automation strategy. Extensibility refers to the ability to leverage the investment in a service platform to pursue other valuable service automation opportunities in the future. Again, from a client perspective, the EFSP model provides significant automation opportunities in the areas of records management and litigation support . Many small to medium sized law firms in Canada do not have the cost structure to support automated records management or litigation support systems. As a result, paper-based procedures and/or poorly maintained electronic systems are used to support these practices. Records management and litigation support services are a natural extension of the EFSP model, and provide a cost-effective solution to a growing problem for practitioners in small and medium sized firms. As courts are unlikely to provide services in these areas, E-Filing strategies based on the traditional business model do nothing to address this problem.
278
9/11/02
Obstacles to Cross-Jurisdictional Approaches to Service Automation
Discussions surrounding the prospects cross-jurisdictional approaches to service automation have been constrained by the perceived need to first harmonize procedures across jurisdictions. Given that formal and informal procedures have evolved to best fit each particular jurisdictional context, it is generally perceived that the potential savings from joint development would not offset the cost of compromise, implicit in a joint approach. This perceived trade-off remains as long as we view E-Filing as an extension of the operations of a court. When we view E-Filing as a service provided by an intermediary however, the opportunity for a cross-jurisdictional approach emerges. The EFSP model based on the Court Filing 1.X standard provides for court/jurisdiction specific procedures through a court policy data type definition that produces court specific views of the E-Filing system.
279
9/11/02
Public Perception Independence of Courts
The effect of common approaches and private sector partnerships on public perception is an important factor. A consideration of practices in the Canadian Banking industry however, serves to illustrate how common approaches to electronic service delivery can be achieved without affecting the identity or independence of the participating institutions.
In 1998, e-route inc. was created by six of Canadas leading financial institutions Canada Trust, CIBC, Mouvement des Caisses Desjardins, National Bank of Canada, Royal Bank of Canada, and TD Bank as a joint electronic billing settlement solution. Six fiercely competitive financial institutions shared the costs and risks associated with developing a common electronic service delivery infrastructure, while preserving their corporate identity. Each institution maintained its unique public identity by applying its own branding strategy without concern for the underlying ESD infrastructure. Similarly, the Courts, and any other stakeholder involved in the Justice process, are capable of participating in a common ESD infrastructure without loss of identity, by managing public perception through their individual branding strategy, similar to they way they currently do through their individual Web presence.
280
9/11/02
10 The Electronic Envelope & Courier
An E-filing service should provide a method for the secure transmission of digital documents between litigants and the courts. Similar to a courier service, the secure transmission need not concern itself with the contents or format of the digital document being transmitted. Rather, the information required to complete the transaction is limited to source and destination addressing, identification of subject matter, time stamping, 3rd party notification, and instructions on how to process the contents. As such, an E-filing system is properly concerned with creating an electronic envelope, and not an electronic file.
The distinction is important because there is great dissimilarity between courts in document format requirements, as well as in the word processing tools used by practitioners to create them, and this is often presented as an obstacle to a crossjurisdictional approach. The electronic envelope provides a method for secure transmission of digital documents without encountering the issues surrounding disparate document formats. The metaphor is also useful in pointing out from a common-sense perspective the questionability of creating a custom courier service for each court/jurisdiction.
281
9/11/02
11 Private Sector Investment Opportunity
With sufficient support from the courts, a potential investment opportunity for private sector partners interested in positioning as an EFSP within the judicial system is created. Given the specific mix of highly specialized skill sets, as well as the risk and capital cost involved in such a project, a private sector partnership may have significant advantages: The financial risk, including capital and operational costs would be borne by the private sector, resulting in a low-cost solution for the courts. Private sector partners focus on electronic services, while the courts focus on managing, processing, hearing and deciding of cases. Private sector expertise in the development and operation of electronic services. Market forces will drive cost/quality improvements and service innovation
A consortium of private sector interests (Quicklaw Inc., SOQUIJ, and Juricert Services) have committed to the development of an EFSP prototype based on the LegalXML Court Filing 1.0 standard. The prototype will validate the technical feasibility of the EFSP model, and assist these companies in assessing the business case for further investment. The Federal Court of Canada and Supreme Court of Canada have agreed to participate in the testing and demonstration of this service with a targeted completion date of March 31, 2002.
282
9/11/02
12 Standards as a Key Enabler
For this to be technically feasible however, multiple courts must be capable of accepting and processing information entered through an EFSP as part of a filing. The Legal XMLs (http://www.legalxml.org) Court Filing 1.0 standard being considered by the Electronic Filing Project Advisory Committee (EPAC), a consortium of federal and provincial organizations under direction of the Federal Court, provides this necessary glue layer for the EFSP model. The standard is a key enabler in the creation of an EFSP market. Private sector interests wishing to compete in this market need only develop a Court Filing 1.0 compliant E-Filing application to act as an E-Filing gateway to courts that have adopted the Court Filing 1.0 standard.
283
9/11/02
13 Positive Network Effects - Reaching Critical Mass
Potential benefits of information systems are often tied to the number of users. Consider e-mail as an example. Being the only user of e-mail has no real benefit. The benefits increase exponentially however as the number of users increase, and as the number of users increase, the demand for the system among potential-users increases as well. The result is a powerful network effect between the adoption rate of a system, and the benefits that accrue. The network effect is exponential in that as the number of users reaches a critical mass (the system is perceived as the de facto standard), the adoption rate increases dramatically. The relationship between Utility and Number of users is represented by Metcalfes equation Utility=Users2 . The resulting curve defined by Metcalfes equation is illustrated to the right.
As Metcalfes curve illustrates, if a common approach is to be successful, it must reach a point of critical mass before individual courts commit to an alternative direction. The benefits of the EFSP model begin to accrue exponentially once a critical mass is reached.
284
9/11/02
14 Conclusion
EFSPs could potentially provide a common e-filing/document management platform that would interface with individual court case management and records management systems. They could provide single window access for the initiation of cases and filing of documents into multiple courts, and across multiple jurisdictions. In addition, filed documents and published decisions could be accessed from the service provider, providing single window access to the consolidated digital case file from trial court to final appeal. Proponents of this model site many advantages, including: The cost, risk, and benefits of such a system could be shared across the entire community, providing an affordable approach to electronic service delivery for all jurisdictions. It provides for the seamless flow of cases between jurisdictions, removing a significant burden in the filing of cases on appeal. It provides for a comprehensive cross-linked digital warehouse of decisions, transcripts, factums, summaries, and in process information not currently available. It promotes the development of digital standards in the preparation and filing of documents, and publication of decisions. It promotes the consistent treatment of key issues relating to privacy, security, copyright, etc. It facilitates access for litigants by providing a common interface and single registration for the initiation of cases and filing of documents, regardless court or jurisdiction.
The EFSP model is a significant departure from traditional e-filing models in that it leverages the ability of governments to create a market for the delivery of low cost efiling services to legal practitioners in Canada. Traditional models provide E-Windows into current court operations, focusing on the operational requirements of an individual court, resulting in duplication of costs, and disparity of approaches across the system, and discrete islands of information within each court or jurisdiction. The Internet provides an opportunity for service providers to intermediate in the relationship between courts and litigants, adding value by sharing the cost of the service across a much broader community, ensuring a consistent approach, providing single window access to a broader information base, and relieving the courts of the complexities and expense of developing and supporting an electronic filing service.
For this to be technically feasible however, multiple courts must be capable of accepting and processing information entered through an EFSP as part of a filing. The Legal XMLs Court Filing 1.0 standard being considered by the Electronic Filing Project Advisory Committee (EPAC), a consortium of federal and provincial organizations under direction of the Federal Court, provides this necessary glue layer for the EFSP model. This standards based approach is a key enabler in the creation of an EFSP market. Private sector interests wishing to compete in this market need only develop a Court Filing 1.0 compliant e-filing application to act as an e-filing gateway to courts that have adopted the Court Filing 1.0 standard.
It is hoped that these efforts will provide an objective assessment of the feasibility of an EFSP market for the provision of secure, low cost e-filing services to legal practitioners in Canada. For such a market to exist however, there has to be sufficient support from the Courts. It is therefore crucial that the Judiciary and court administrators be well informed of the potential benefits as well as the key issues that accrue from this approach,
so as to provide every opportunity to consider the EFSP model as a potential e-filing solution within their jurisdiction.
Further information is available through the e-filing web site at www.e-filing.ca., http://www.depot-electronique.ca/
287
9/11/02
Contact Information: William A. Murray Government Online Lead Supreme Court of Canada william.murray@scc-csc.gc.ca Gary Pinder Government Online Lead Federal Court of Canada gary.pinder@fct-cf.gc.ca
The granting of royalty-free licences for use of the middleware software developed as part of the prototype to other federal and
provincial courts and tribunals in Canada is subject to the following conditions as defined in the cooperative agreement: provided that the Services Providers have been given equal opportunity by those courts and tribunals to compete for any contracts or arrangements which those courts and tribunals award or enter into with private sector service providers for such services as the interface work between the middleware and the court = s information management systems; the maintenance of the middleware and storage of any filed documents; the delivery of any filed documents to the court or tribunal from litigants and counsel; and the posting of any filed documents on the Internet.
288
9/11/02

Electronic Filing Service Provider Model Feasibility Report

Enviado por

Dados do documento

Direitos autorais

Formatos disponíveis

Compartilhar este documento

Compartilhar ou incorporar documento

Opções de compartilhamento

Você considera este documento útil?

Este conteúdo é inapropriado?

Direitos autorais:

Formatos disponíveis

Electronic Filing Service Provider Model Feasibility Report

Enviado por

Direitos autorais:

Formatos disponíveis

Feasibility Report : Electronic Filing Service Provider Model

E-Filing Service Provider Model Feasibility Study

E-Filing Service Provider Model Feasibility Study

5.4 5.5 5.6 5.7 6

E-Filing Service Provider Model Feasibility Study

The Need For A Single Window Standard................................................................................... 194

Conclusions And Recommendations......................................................................................................... 225 6.1 Recommendations............................................................................................................................ 228

E-Filing Service Provider Model Feasibility Study

E-Filing Service Provider Model Feasibility Study

E-Filing Service Provider Model Feasibility Study

Anne Roland Registrar, Supreme Court of Canada September 2002

E-Filing Service Provider Model Feasibility Study

E-Filing Service Provider Model Feasibility Study

E-Filing Service Provider Model Feasibility Study

E-Filing Service Provider Model Feasibility Study

E-Filing Service Provider Model Feasibility Study

E-Filing Service Provider Model Feasibility Study

E-filing service provider project

E-Filing Service Provider Model Feasibility Study

E-Filing Service Provider Model Feasibility Study

E-Filing Service Provider Model Feasibility Study

E-Filing Service Provider Model Feasibility Study

E-Filing Service Provider Model Feasibility Study

Filer Request for filing

Electronic File Manager (EFM) accesses Court Policy DTD document

Employee checks filings received using EFM

E-Filing Service Provider Model Feasibility Study

Private based on open, public standards

Private based on open, public standards Private

EFM: private API: public

Figure 3: Software environment for the electronic filing project

E-Filing Service Provider Model Feasibility Study

Experiences in jurisdictions outside Canada

Electronic filing in the Federal Court of Australia

E-Filing Service Provider Model Feasibility Study

E-Filing Service Provider Model Feasibility Study

E-Filing Service Provider Model Feasibility Study

E-Filing Service Provider Model Feasibility Study

External ASP service provider Internet-enabled (tasks split between

(tasks split between courts and service providers)

Service provider (unspecified fees) Service provider (unspecified fees)

User name obtained from court and password

E-Filing Service Provider Model Feasibility Study

E-Filing Service Provider Model Feasibility Study

E-Filing Service Provider Model Feasibility Study

E-Filing Service Provider Model Feasibility Study

Court (conventional) Court

Hybrid Service provider

E-Filing Service Provider Model Feasibility Study

E-Filing Service Provider Model Feasibility Study

E-Filing Service Provider Model Feasibility Study

E-Filing Service Provider Model Feasibility Study

Run by service provider (ASP) GCAC/Phase 1

GCAC/Phase 2 Singapore U.S. federal courts (PACER)

E-Filing Service Provider Model Feasibility Study

Sample technical framework for electronic filing

E-Filing Service Provider Model Feasibility Study

E-Filing Service Provider Model Feasibility Study

E-Filing Service Provider Model Feasibility Study

Specification 1 2 EFM Deployment Transmission Envelope

Court URL Directory

If/when directory is established.

Document Formats Electronic Signatures and Encryption

January 2001. Now.