Law Office Computing
Proprietary versus Open Electronic Filing Systems-- Proposed Rule 124 and the “One Size Fits All” Approach to Judicial Innovation
One of the most exciting applications of modern multimedia technology in the legal field is the rapidly developing interest in the filing of court pleadings and briefs, including multimedia briefs. Using state-of-the-art Windows and Internet technologies, a number of courts around the country have been experimenting with the filing of such documents. Currently there are at least seven large organizations actively involved in the development of electronic projects: Federal Administrative Office of Courts, CLAD (Lexis-Nexus); JusticeLINK, LawPlus, LegalFile, Law-on-Line and Microsoft/Choice/PCDocs. The National Center for State Courts has a web page on the topic that shows the huge variety of systems in place around the country. http://www.ncsc.dni.us/NCSC/TIS/TIS99/Electr99/Elecfil1.htm
In Arizona there is a proposed New Rule 124 that would limit electronic filing two formats one of which is years away from implementation. The effect of the proposed rule is therefore to limit electronic filing to a single, proprietary format called PDF. In my view, this is a step back in State that is known for its innovative uses of technology in the judicial system.
Electronic filing can reduce costs associated with printing and distributing, reduce costs and time taken to file documents, make briefs and associated materials more portable to permit review out of the office, make materials more useful by permitting searching and hyperlinking and many other enhancements. One of the biggest questions in electronic filing is the computer file format in which filing should be allowed. There are a number of formats that work well but no one of them is ideal. The general thought is that a new format known as XML, will become the standard in three to five years. XML is the grist of the new Microsoft Internet strategy that has just been announced. Today, however, there are many formats that are promoted by various vendors and actually used by law firms.
Examples in the three most common formats can be found at: (1) [PDF] http://www.reinhartlaw.com/appell/appbrief.pdf; (2) [HTML] http://www.schnader.com/brief.htm; and, (3) [realLegal] http://www.reallegal.com/softwarebriefdnload.asp.
The above three briefs are each in a different format. The first is in the proprietary format known as PDF. The second is in HTML, the core language of the Internet and can be opened in any standard Internet browser. The third is in a proprietary format created by a company called realLegal and has been used for filing briefs in a variety of courts. In addition, briefs have been filed in Microsoft Word and WordPerfect, both of which allow for the easy creation of multimedia briefs. The proposed Arizona rule effectively limits filings to PDF until the XML format arrives in few years. PDF, however, restricts the use of multimedia briefs in a number of ways and its adoption as the only available format will inhibit the development and use of multimedia briefs and other creative uses of electronic documents.
Multimedia briefs and documents share a common set of general characteristics. The first and most important is the hyperlinking of text in the brief to documents, depositions, transcripts and exhibits that have been filed in court. The second is the fact that these briefs can be filed on the internet or a single CD ROM that contains all of the information necessary to review the presentation made to the court. The great value here is that the judge is able to take with her the equivalent of several bankers boxes of exhibits and transcripts stored on a single CD ROM.
From the perspective of the reader, a multimedia brief is whole different kind of animal. The core of the function that has caused the Internet to so rapidly dominate our culture is the remarkable ability to move between masses of material and information with speed and freedom of choice. That freedom and functionality is now being brought to the courthouse. There are a number of important policy considerations that must be confronted when adopting an electronic filing system.
The first, and probably most important, question must be answered is whether or not the court will adopt proprietary standards that tie them to the whims of particular vendors or whether they will adopt filing standards that allow people to utilize software that already exists on their computer systems. There are two sides to this question. Consideration must be given to allowing documents to be easily filed remotely as well as supporting utilization of documents that have been filed by others. The distinction between the two perspectives is often blurred. For example in PDF, which is the most common document management system in place today, special software is required to create and to read PDF documents. On the other hand, HTML which is the current format of the Internet can be created with existing up-to-date word processors and read by anyone with an Internet browser. Court administrators are often attracted to the PDF format because it provides an an ostensible “one size fits all” solution to document management. Lawyers however are often attracted to the more open standards that allow for a greater variety, flexibility and experimentation in the construction and use of electronic documents. This is a large an important topic which cannot be dealt with in detail here. It is sufficient to know, I think, that there are a variety of viewpoints held by knowledgeable people that must be considered. In one sense, almost everybody agrees that whatever is done today is likely to become irrelevant in three to five years as the new Internet language known as XML becomes standardized and widely adopted.
There are large issues surrounding the cost of implementing electronic filing in public institutions. Adobe Systems, the creators of the PDF format, provide a free reader available over the Internet that allows anyone to read a PDF document. The creation of the PDF document, however, is an entirely different matter. In order to create a PDF document one must purchase the entry-level software for creating PDF documents at a cost of $250 per seat. Additional software for managing and using PDF documents can add a great deal more. Remember the $250 fee is on a per user basis so that firms with large numbers of computers may find the cost quite high. Some firms and some users will simply find that cost to be an insurmountable barrier and therefore forego participating in electronic filing program or opportunities at all.
One of the best things about electronic documents is the fact that one can cut and paste from one document to another. For example, Judge James Rosenbaum, United States District Judge in Minneapolis, takes electronic files with him when he travels so that he can work on opinions and orders at his convenience. He says the ability to clip a quotation from brief that he intends to insert into an order is a matter of great importance to him. Judges on the Arizona Court of Appeals use electronic documents in a similar fashion as do many lawyers and other judges. One of the problems with the proprietary formats such as PDF is that they are actually designed to prevent such cut and paste use. That is supposedly done to insure document integrity. There are other ways, however, to insure document integrity that do not require the hobbling of one of the most important aspects of electronic documents. Those options need exploration and development in the coming months and years.
Another aspect of electronic documents will be familiar to almost everyone. Ever since Westlaw and Lexis introduced us to the power of Boolean full text searching lawyers and judges have been addicted to the unique characteristics of electronic documents that permit what is known in the trade has full text searching. Open format electronic documents in HTML, Microsoft Word and WordPerfect are fully searchable using a variety of tools such as ISYS or dtSearch. The proprietary formats are searchable only with the search tools provided by the Company and those tools are much less powerful than the ones we are used to. In addition, there is the complicated problem of what is called “metadata.” Metadata are bits of information contained within a file that provide data about data, hence “metadata.” Metadata (as opposed to just full text) permits functionality that makes database use and administration far easier because it allows such things as:
* field-limited searching (e.g., IBM where IBM is a party, not where one of the IBM cases is mentioned or an IBM computer is mentioned)
* Sorted output, arrange cases by plaintiff, or by defendant, or by court, or by date filed, or by date disposed of.
* Formatted, columnar reporting
There is a tremendous amount of information available when metadata is accessed. This can be both good and bad. Metadata may reveal matters that are privileged or work product such as document revisions, authors, etc. but they also provide tremendous organizational tools. XML uses metadata in a much more efficient way than any existing program but proprietary formats such as PDF substantially constrain access to metadata. Again, there are an almost endless set of policy concerns in regard to the amount of information that should be contained or removed from electronic files. These policies relate not only to electronic filing but to the production of documents in discovery and the provision of electronic documents in the ordinary course of lawyer communication. The problem with privilege logs reflecting redacted information is one of the most obvious. Once again these issues are far too important to be dealt with summarily. There is no indication that the interface between metadata and rules relating to privilege and work product was even discussed during the drafting of the rule. It is worth noting that in the final analysis the Proposed New Rule 124 adopts an internally inconsistent position because it embraces both PDF and XML. The former constrains metadata and the latter exhalts it. We cannot have both access to metadata and exclusion of metadata at the same time. We need careful rules developed after substantial discussion of the profound professional issues relating to privilege and work product that are implicated by this decision.
The Arizona courts stand at a crossroads. We can continue to encourage innovation by allowing for a local option to implement electronic filing standards or we can slam the door to such innovation with a one size fits all solution. Allowing a local option permits those judges, lawyers and court administrators who wish to continue to experiment to do so, at little or no discernable cost to the judicial system.