Six Months into the Mandatory E-Filing Roll-Out

By: Jackie Cooper 

     The “e-filing revolution” has its roots back in Jefferson County in 1995.  Since then, e-filing systems popped up ad hoc in various counties, each with their own protocols.   Effective January 1, 2014, e-filing is mandatory for all cases in the Supreme Court, Court of Criminal Appeals, and appellate courts, as well as for all non-juvenile, non-criminal matters in Bexar, Collin, Dallas, Denton, El Paso, Fort Bend, Harris, Hidalgo, Tarrant, and Travis Counties. All courts throughout the state are expected to be using e-filing in civil cases by 2016.

     According to Chief Justice Hecht, “E-filing promotes the efficient and uniform administration of justice…. I think historians will look back on this time period and see that e-filing revolutionized our courts for the better.”  We are six-months into mandated e-filing for the 10 most populated counties in Texas, and the question is – are we better off yet?  

     While most would agree that, in theory, e-filing is for the greater good (it has been touted as being more green, less expensive, and more accessible), in practice, there have been significant challenges.  E-filing can sometimes take an unexpected amount of time, and there is certainly a learning curve, particularly with respect to local e-filing rules, which vary from county-to-county and court-to-court. 

     At this point in the roll-out, everyone is still learning the ropes.  The process is new for many, and attorneys and their clients still have questions about costs, timing issues, and changes in the procedural rules to accommodate the circumstances created by mandatory e-filing. For those initially wading into the world of e-filing, as well as those who just want a refresher, here are a few things to note:

• The mandate is set out in Amended Misc. Docket No. 13-9092, dated June 24, 2013.
• Anyone can file electronically through a certified EFSP. Pro-Se litigants, ie. those who are not represented by an attorney, are permitted, but not required, to e-file.
• Texas Rules of Civil Procedure, Rule 21(f) specifically addresses procedures related to e-filing.
• The process begins at the state’s Web portal for e-filing - eFileTexas, available at efiletexas.gov. 
• The standards for e-filing are promulgated by the Judicial Committee on Information Technology (“JCIT”), the members of which are appointed by the Texas Supreme Court, and are set forth in version 1.2 of the Technology Standards.
• Documents must be text-searchable, converted directly to PDF rather than scanned, and must not be locked or protected. TRCP 21(f)7
• A document is considered to be timely filed if it is e-filed at any time before midnight on the filing deadline. A document is deemed filed when transmitted to the filer’s EFSP, except on a weekend or legal holiday, in which case it is deemed filed on the next day that is not a weekend or legal holiday. 
• Attorneys required to e-file must consent to use electronic service as well, pursuant to TRCP 21(b).  Even if parties are using e-filing voluntarily, there is consent to electronic service, pursuant to TRCP 21(a)6.
• As before, Rule 21c of the Texas Rules of Civil Procedure requires that documents containing sensitive data be redacted by the filer prior to submission. This is applicable to e-filed documents.
• Texas Rule of Civil Procedure 21(f)4, addresses the only noted possible exceptions to e-filing – 1) wills and “documents to be presented to a court in camera, solely for the purpose of obtaining a ruling on the discoverability of such documents” are not required to be filed electronically; and 2) documents sealed pursuant to Texas Rule of Civil Procedure and “documents to which access is otherwise restricted by law or court order” are not permitted to be filed electronically.

     A few of the more frequent issues to arise are the time and expense of e-filing.  It may take more time to prepare documents for filing to ensure compliance with the new state and local rules.  In addition, while the eFileTexas system is theoretically available around the clock, there is no lack of anecdotal evidence about glitches and technical issues turning attorneys’ hair prematurely gray and taking months or years off of their lives.

     The rulemakers anticipated that some of these issues would arise, given the nature of computer systems, and somewhat accounted for them in amendments to the procedural rules. According to Texas Rule of Civil Procedure 21(f)5, where there is a “technical failure or a system outage” resulting in untimely filing, the filer “may seek appropriate relief from the court.” Thus, there is a pathway to request relief, such as additional time, but there is no guarantee. Nor is there any discussion in the Rule of the role, if any, when seeking relief, as to the cause of or fault for any such failure or outage where an answer or dispositive motion is “untimely” due to technical difficulties.  Does it matter whose system was to blame, or is the mere existence of a glitch or failure sufficient grounds for relief?  Not enough time has passed to fully evaluate the courts’ responses to these issues. 

     With respect to filing fees, the mandate implemented a standardized fee structure to replace the wide range of fees that varied by court and type of document. However, in addition to the document filing fees, there is also a $20 e-filing fee associated with each civil and probate case, and each appellate action. There may also be an additional fee incurred for the service of an electronic filing service provider, or EFSP.  Counties are also permitted to charge a $2 fee to recoup their costs for maintaining their e-filing systems.  Client expenses may now include unfamiliar fees that require explanation. There may be overhead costs to lawyers and firms associated with infrastructure and software necessary to e-file. However, the fees associated with e-filing and service should be weighed against the potential for cost savings on paper, printing, postage and delivery of hard copies.  

     Attorneys and courts alike will undoubtedly continue to work on best practices for e-filing, although it will take time and effort, because ultimately, as former Chief Justice Jefferson proclaimed, “[t]he era of big paper is over.”