LAAC is happy to report that the Judicial Council has listened to our community’s concern about mandatory e-filing in California.
In late 2012, the Judicial Council asked for comments on a proposal to allow California courts to adopt mandatory e-filing for civil cases. LAAC staff convened our Directors of Litigation and Advocacy group to form three working groups, each led by members of the legal services community. LAAC submitted general comments on behalf of the group and created a template letter for other organizations to comment. IOLTA-funded organizations focusing on disability rights submitted a comment addressing key disability access concerns. The third group created a comment template addressing language access concerns.
June 2013, the Judicial Council working group assigned to create a final proposal for adoption released their report, including a chart of all comments and the full public comments. The Judicial Council voted to adopt the recommendations at its June 28 meeting. Below are the highlights of that proposal.
1. The working group listened to our comments on exempting self-represented litigants.
Self-represented parties are exempt from any mandatory electronic filing and service requirements adopted by courts under this rule and Code of Civil Procedure section 1010.6.
2. The working group followed our recommendations on e-service.
First, the current rule on electronic service by consent of the parties provides that a party can consent either (1) by serving notice on all parties that the party accepts electronic service and filing, or (2) by electronically filing any document with the court. (See amended rule 2.251(b)(1)(A)–(B).) Based on the comments, the committees recommend changing this rule so that electronically filing will not be deemed consent for self-represented parties; they must affirmatively consent to electronic service. The reason for this change is that, as the commentators persuasively argued, electronic filing and service need to be treated separately for self-represented parties. Many self-represented parties, who might be able to receive assistance with electronic filing from self-help centers and legal aid organizations, might not be able to electronically serve or receive service of documents—for example, because they have no computer. Thus, it is unreasonable to assume that e-filing by self-represented parties constitutes consent to e-service. Furthermore, this presumption may actually discourage these parties from seeking assistance with e-filing because the filing would result in their being compelled to accept e-service which they are unable to do.
3. The working group followed our recommendations about fee waivers.
To implement the new statutory provisions, the following paragraphs would be included in rule 2.253(b):
(5) Any fees charged by the court shall be for no more than the cost actually incurred by the court in providing for the electronic filing and service of the documents. Any fees charged by an electronic filing service provider shall be reasonable.
(6) Any fees for electronic filing charged by the court or by an electronic filing service provider must be waived when deemed appropriate by the court, including providing a waiver of the fees for any party that has received a fee waiver.
4. The working group recognized disabiltiy and language access concerns (page 19, 38, and more), and the working group’s response is on page 40.
In summary, the working group points to exempting self-representing litigants as one solution, and courts should work to: “ensure that, as e-filing is implemented and expands, it is developed in a manner that addresses the needs and situations of persons with disabilities, low-income individuals, and persons with limited English proficiency.”
LAAC believes that additional work will be needed as each court considers adopting mandatory e-filing or e-service. The technology chosen must be accessible for all litigants so as not to serve as a barrier to those who want to opt-in nor prevent attorneys with disabilities from participating in e-filing and e-service.
If you have any questions about mandatory e-filing and legal services’ reponse, please feel free to contact LAAC Interim Executive Director Salena Copeland at firstname.lastname@example.org. Salena is currently working with a group of volunteers to summarize our position on mandatory e-filing and e-service for all future proposals on this subject.