Law Office Computing
July 2000
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.