E-FILING AND THE LITIGANT
E-filing is a major development which is quickly changing the way North American courts operate. An electronic court filing system enables a litigant to submit court documents electronically rather than using the traditional and more costly methods of dropping them off in person or sending them by fax.
The desire for such a system has existed for years. In 2002, the registries of both the Supreme Court of Canada and the Federal Court commissioned a survey among members of Canada’s legal community to explore issues related to electronic filing. The results were clear: 73% of respondents wanted the ability to initiate proceedings and file documents electronically.
THE PROLIFERATION OF E-FILING
Paper-intense courts were at first ill-equipped to handle the demand for e-filing. They lacked the necessary computer systems to accept and manage electronic documents. Indeed, despite the legal community’s desire for e-filing, 63% of respondents in the 2002 survey felt that documents sent or received electronically were less secure than documents sent or received by hand delivery.
However, jurisdictions across Canada have slowly warmed to the idea of e-filing and have been implementing pilot projects to make e-filing a reality. For example, the past few years have seen the introduction of e-filing, in some shape or form, in the Supreme Court, the Federal Courts, and the Alberta, British Columbia, and Ontario courts.
The success of e-filing in the US is nothing short of astonishing. According to LexisNexis, the Federal Courts’ sole e-filing service provider, its system currently has more than 85,000 registered users who file and serve 30 million documents per year in 1.3 million cases in 228 U.S. courts. The American Bar Association offers a website with a select list of jurisdictions and links to their rules regarding e-filing.
HOW E-FILING WORKS
In order to be successful, an e-filing system must be reliable and secure. Different jurisdictions have implemented various procedures to meet these goals. A good example is the system used by the Federal Court. In October 2005, the Federal Court launched a pilot project by which documents can be filed electronically in intellectual property proceedings. Ogilvy Renault LLP was selected as a participant in the Federal Court’s early pilot project. As a testament to the system’s success thus far, on May 14, 2007, the project was expanded to also include documents in immigration and admiralty proceedings. LexisNexis is apparently working with other courts and tribunals in Canada to launch a nationwide e-filing system.
The nuts and bolts of the process are set out both on the LexisNexis website and in a Notice to the Profession on the Federal Court’s website. Some highlights include the following:
- Only legal counsel can use the system.
- The document must normally be in a PDF format (this requirement is one that varies widely among jurisdictions).
- E-filers are not required to file paper copies of most documents shorter than 500 pages.
- Signatures are not required on e-filed documents, as long as filers keep signed copies of sworn documents such as affidavits in their own files.
- Documents placed under seal by law or documents for which the filer will be seeking a court order for confidentiality should not be filed electronically.
The failure to follow these procedures when filing a document may result in costs against the filer. For the moment, service of electronically filed documents must still be done by the traditional means as set out in the Federal Courts Rules.
ADVANTAGES OF E-FILING FOR THE LITIGANT
The benefits of an e-filing system to a litigant, especially in large litigation files, can be enormous. A prime advantage of this system is that a party can e-file as late as just before midnight Pacific Time. The Federal Court, for example, accepts the filing of paper copies until 4:30 p.m. only. That additional seven hours can mean the difference between a winning motion and a hurried panic. In addition, e-file systems typically provide the filer with a confirmation that a document has been successfully filed. This eliminates the last-minute uncertainty and stress (and courier costs) that often result from filing in person. Another advantage is one that may seem small but can accumulate significantly over time: photocopy costs. In major litigations, in which the parties are obliged to make multiple copies of documents which are sometimes thousands of pages in length, e-filing is a simple method to reduce the costs associated with this duplication of paper.