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Within view of the offices of the District of Columbia Contract Appeals Board
is the hitching post used by Abraham Lincoln when he came by horse the two
blocks from the White House to the New York Avenue Presbyterian Church. Up until
October 9th of this year, Lincoln, as an experienced 19th
century contract litigator, (1) would not have
found the procedure for filing pleadings with our Board unfamiliar. Very little
has changed with regard to filing pleadings since Lincoln's day, except possibly
that messengers bringing pleadings now use bicycles instead of horses.
It became increasingly apparent to the Board that our filing procedures were
not consistent with the best law office practice. Although we now use
computerized research tools, and word processing has replaced typewriters, our
method of filing pleadings remained in the 19th century. As a result,
pleadings that are created and stored electronically within law offices, rather
than being sent to us in their electronic form, are printed on paper and then
individually delivered to our offices by a messenger or mail carrier. Not having
full confidence in the filing process, many attorneys further requested that a
hand-stamped copy be returned to their office as proof of filing. The paper
documents which were delivered to us can be read visually and filed in
pasteboard folders, but their text is not readily searchable, nor is it
accessible for use to prepare future documents unless the text is reentered into
our own word processing systems. This is the case notwithstanding the fact that
the documents are prepared on equipment and software identical to that in our
offices. As a result, for example, although we require that litigants accompany
motions with proposed orders, if the judge does not adopt the exact order
submitted, it is necessary to either entirely retype the order, or to handwrite
annotations in our often imperfect handwriting. No serious party would submit a
pleading with handwritten corrections, yet we regularly issue orders with
handwritten changes.
Our previous filing procedures made little sense in an age when banks
transfer hundreds of millions of dollars electronically and most databases are
maintained on computers. Many of the procurements which we review were conducted
in an electronic format. Indeed, electronic commerce is the favored means of
procurement. Congress has mandated that Federal agencies expand their use of
electronic commerce. (2) The Federal Acquisition
Regulation provides that "[t]he Federal Government shall use electronic commerce
whenever practicable or cost-effective." (3) The
Commerce Business Daily is now on the internet through a number of commercial
services, see e.g. http://cbd.savvy.com/ and
http://cbd.cos.com/, offering sophisticated
electronic searching and retrieval never remotely possible with paper editions.
Electronic contract formation is not limited to government procurement.
Congress, in adopting the Electronic Signatures in Global and National Commerce
Act last year, PL. 106-229, provided that "(1) a signature, contract, or other
record relating to such transaction may not be denied legal effect, validity, or
enforceability solely because it is in electronic form; and (2) a contract
relating to such transaction may not be denied legal effect, validity, or
enforceability solely because an electronic signature or electronic record was
used in its formation." (4).
Budgetary Concerns
Initially, although our Board was interested in electronic filing, we had
serious concerns as to the cost, including equipment, services and staff
resources, both to the Board itself and to litigants before the Board. A filing
system for any adjudicator must be nearly 100% reliable and virtually error
free. (5) We initially believed that we would
need additional appropriations to purchase software and electronic storage
equipment, as well continuing annual budgets to hire personnel or contractors to
maintain the system on an ongoing basis. Securing additional funding would be
difficult and would require considerable time. Although we feared that it might
make proceeding with electronic filing impossible, we initially determined that
if we were to expeditiously modernize our filing system, the implementation
should not require the Board to make any expenditures for equipment, should not
impose on the Board any responsibilities or costs for maintenance, and should be
usable by staff with only minimal training. Similarly, to be accepted by the
procurement bar, the system should not require any expenditures by firms
appearing before the Board for equipment or training, and that ongoing services
should be priced so as not to be more expensive than existing copying and
delivery costs. We assumed that all litigants before the Board had available
personal computers using word processing software and Internet access, as does
the Board. In addition, we further desired the system be fully compatible with
the test of electronic filing being conducted by the Superior Court of the
District of Columbia for major civil cases, so that it would ultimately be
possible that appeal records could be electronically transmitted to the District
of Columbia Court of Appeals which has jurisdiction over appeals from our Board
as well as appeals from the Superior Court.
The E-filing System Chosen
To our pleasant surprise, we were able to meet all of our no cost
requirements with a commercial, off-the-shelf service. Although we had initially
been concerned that we would have to acquire equipment dedicated to our Board to
receive and store filings, we had not considered use of the Internet. CourtLink
Corporation, (6) through its JusticeLink system,
with which our Superior Court was already working, operates as a service bureau
to receive, store and retrieve filings on behalf of the Board through the
Internet. CourtLink
owns and maintains all of the equipment and software at its facilities in the
State of Washington which is now used in common by 90 court systems throughout
the country with over 1 million pages of pleadings electronically filed and
served per month. Access to the system is made through the Internet World Wide
Web. After answering screen questions as to the name of the case, type and title
of the document, party filing, parties to be served or given notice of the
filing, and the attorney authorizing the filing, the document is sent as an
attachment to the filing information. Upon receipt of the filing, the filing
service automatically gives notice to each of the parties served and returns a
receipt showing transmission of the document. At present, the only restriction
on filing documents through CourtLink are documents filed under seal. Since the
Board already has Internet access, we were in a position to immediately utilize
the system without any expenditure on equipment or software. (7)
In exchange for the Board designating CourtLink as its agent for receiving
filings, CourtLink makes no charges to the Board for filing Board documents or
receiving and downloading documents filed by others. Charges are only made for
filings made by litigants. Litigants pay at the rate of 10¢ per page filed or
served with a minimum of $2 per filing. This fee is almost always cheaper than
the cost of copying the original and two copies of pleadings previously required
to be filed with the Board, without even considering the cost of postage or
delivery. A party, either the appellant or the government, transmitting up to a
20 pages to be filed with the Board and served on a single opposing party, would
have a total electronic filing and service cost of $4, certainly nominal by any
standard. Even should a party wish to file a 1,000 page transcript, the filing
cost would only be $100. A litigant can view and download documents served upon
it without charge. Nonparties, and persons other than to whom the document has
been served, may view any document without charge, but are charged 10¢ per page
to download and print a document. Training is free, either on the Internet or in
person, and training time is minimal. We have found that anyone, even a judge,
who is capable of sending an e-mail with an attachment has the skills necessary
to file and retrieve documents electronically and can be proficient in using the
system in under an hour. We have been told by counsel appearing before us that
they have successfully filed documents without training by merely following the
on-screen instructions.
Due Dilligence
The financial terms clearly met the requirements of the Board, that the Board
could adopt e-filing without any additions to its budget. Nevertheless, the
Board needed to exercise due diligence that the system would otherwise meet our
standards and requirements. We had to be assured that electronic records would
not only qualify as a public records, but that the e-filing system adopted would
securely receive filed documents and safely store the documents without an
unreasonable risk of tampering or loss. We also considered whether we could
dispense with manual signatures.
Qualification as Public Records
Electronic records have been statutorily recognized as public records by the
District of Columbia Council. (8) This is
consistent with Federal policy expressed by Congress.
(9) Congress has, in fact, mandated that Federal agencies maintain
computerized records (10) and specifically
authorized the Comptroller General to use electronic filing in receiving
protests. (11)
Secure Transmission and Storage
In many ways e-filing has fewer concerns as to secure transmission than many
transactions currently made on the Internet. Since documents under seal will
not, at least at present, be filed electronically, there is no concern with
privacy. All documents filed with the Board, other than sealed documents subject
to protective orders, are public, and thus there is no concern with encryption
or other protection from interception during transmission. Documents may be
submitted in the most commonly used formats,
(12) making it unnecessary for the Board or attorneys to purchase or
be trained in any other equipment or programs than they are already using.
There is, however, a theoretical concern that the stored documents will be
subject to tampering. This concern is met by the system locking-in the documents
as a single image in Adobe portable document format (".pdf") as soon as
transmitted. Thus, although documents are generally transmitted in an editable
form (i.e. Word Perfect or Word), the system immediately saves a copy
of the document in a read-only format. The document is saved in the sequential
order received. (13) The pdf form makes the
archival document uneditable. Should a party desire, the original document need
not be sent in editable form, but may be sent directly in an uneditable image
form. The Board does not encourage the uneditable transmissions, however, since
when a document is sent in a wordprocessing format, the system saves and makes
the document available in both the original format as transitted and the
converted uneditable copy. This allows the Board to retrieve the document in the
original word processing format to use as the basis of its own document, such as
to prepare a final order from a party-submitted proposed order. Even if the
document is transmitted in image format, the Board can electronically "read" the
document with an optical character reading program and convert the document to
wordprocessing formats. Documents only available in hard copy, such as drawings
or photographs, may be scanned and transmitted in image form.
A further concern was also that the system's computer records might be
compromised or lost. Back-ups are regularly made and saved by the system at
multiple locations and can be additionally downloaded nightly to the Board. (14) If an intruder were to "hack" the
service-provider's system, the .pdf format cannot be edited and if attempt were
made to replace a document image in its entirety, it would have to be replaced
in several locations. Further, copies of important documents as originally
submitted would be likely to have been downloaded and saved outside the e-file
system by other parties and the Board. The e-filing system offers at least as
much protection as our paper filing, since it is likely that it is more
difficult to successfully hack into the electronic file than it would be to
physically break into our offices and alter a paper record, or to alter an
original document made available for public inspection. Our current paper files
are also vulnerable to the very real possibility of loss though negligent
handling, fire or water damage, risks which are significantly minimized by
electronic filing systems redundant storage at several locations..
Manual Signatures
We also considered the risk of documents not being authenticated by manual
signatures. First we must put this concern into perspective. A review of our
recent paper filings indicate that a majority of them have at least one
signature which is not the personal signature of the person it purports to be.
Paper documents are regularly signed by associates, cocounsel, secretaries or
other office personnel. Most paper documents are filed with the Board by
messengers or appear in our mailbox with no guarantee of their source. The Board
has never attempted, nor does it have the means, to authenticate signatures on
paper filed documents.
Electronic filing, if anything, will give a better indication of the source
of a document than paper filings. Electronic filing identifies the originator of
a filing. When an attorney or other representative of a party registers with the
filing agent, he or she is given a username and password. When an electronically
filed case is initiated, a "case profile" is created which identifies the
representatives of the parties, essentially an electronic notice of appearance.
Unless an additional appearance is filed with the Board, only those indicated on
the original case profile can file documents in the case, using the confidential
password, similar to making bank transactions. Use of the password generally
gives a better identification of the source of the document than the Board has
ever had with paper filed documents.
There is a question, however, with regard to documents not signed by counsel,
such as affidavits or discovery responses. Since the documents will usually be
transmitted by counsel, this does not appear to be a serious problem. We
consider that the submission of a document by an attorney is a warranty that, to
the best of the attorney's knowledge, the document is genuine. An attorney who
transmitted a false document with knowledge would be sanctioned by the Board and
the bar. (15) In addition, similar to
requirements that original discovery requests not be filed but be maintained by
counsel and not filed, (16) the rules adopted by
the Board for electronic filing require that a signed original of any document
electronically filed be maintained in the attorney's files and required to be
produced in the event a question of genuineness is ever raised. (17)
The maintenance of the counsel list also permits one of the major
efficiencies of e-filing for both the Board and parties. Parties are relieved of
the burden of serving pleadings and the Board is relieved of the burden of
serving orders and decisions. All service of electronically filed documents is
made automatically by Courtlink. This service is made even if a litigant
receiving service does not participate with the electronic filing program.
Courtlink will either fax or mail a copy of the electronically filed pleading.
Board staff will save considerable time through electronic service.
Technical Difficulties
Lastly, the Board was concerned with the possibility of delay in receipt of
documents due to technical difficulties. Sadly, current events have made this
seem of much less of a concern, in fact, even with the possibility of technical
difficulties, electronic filing may be the most reliable means of receiving
documents. At the time that this article is being written, over 1 million pieces
of mail are quarantined at the Brentwood Post Office, the main mail sorting
facility for many Government agencies in Washington, DC, including the Board.
Postal service to the Board is erratic and for a number of days private express
delivery services did not function.
The Board has made the CourtLink its agent for receipt of pleadings, (18) thus filing, for timliness purposes is
complete when the document is received by CourtLink electronically. To resolve
any issue as to delay by the e-filing system, he Board has further provided
that
"if the electronic filing is not filed with the Board because of (1) an error
in the transmission of the document to the Vendor which was unknown to the
sending party, (2) a failure to process the electronic filing when received by
the Vendor, or (3) other technical problems experienced by the filer, the Board
may upon satisfactory proof enter an order permitting the document to be filed
nunc pro tunc to the date it was first attempted to be sent
electronically. (19)
An advantage of the electronic filing is that the Board now is never closed
for filing. Thus, a document can be filed through 11:59 pm on the day that it is
due, compared to 5 pm for paper filings. Since actual electronic service would
occur immediately, the Board's mailing rule adding 3 days for responses (20) would not come into play. The Board was
concerned, however, that filing late at night or on weekends would reduce the
other party's actual time to respond. In order to avoid any possible abuse, the
Board has adopted a rule that provides that "for the purpose of computing time
for any other party to respond, any document filed on a day or at a time when
the Board is not open for business shall be deemed to have been filed on the day
and at the time of the next opening of the Board for business." (21)
Notwithstanding that the analysis of electronic filing showed that it met all
of our concerns, we still did not want to cut all ties to our old ways. We
therefore chose not to make use of the system mandatory for any case. The policy
differs from those of most courts which, in beginning tests of electronic
filing, make e-filing mandatory, but limit e-filing to certain divisions of the
court, or to particular types of cases. We chose to immediately permit e-filing
for all of our cases, but not make it mandatory in any case. We also are
encouraging ongoing e-filing of pleadings in cases which were initially paper
filed. Although we have not required electronic filing, no party has yet opted
out of e-filing. (22)
Initial Experience
When we initially considered electronic filing, we believed that a major
advantage to the Board of electronic records would be the ability to utilize
portions of records in our opinions without having to reenter the text or other
data into our drafts. We still believe it to be so, but with just a month of
experience, it is too early to evaluate these benefits. We have found, however,
that we are achieving significant efficiencies in handling minor administrative
matters in case processing. The handling of a simple consent motion for an
extension of time to respond to discovery is illustrative.
With a paper filing, the attorney seeking the extension would prepare, or
request staff to prepare, the motion on a computer word processor and print the
motion documents, including a proposed order. When the motion is completed, the
attorney would sign the motion and return it to staff to copy the signed motion
papers, address envelopes to the Board and other party for service, stuff and
place the envelopes with a messenger, or mail the envelopes to the Board and
other party. A staff member at the Board would receive the documents and stamp
the time of receipt, locate the case docket, enter the documents into the case
docket, locate the case, file the original motion in the case file and route the
motion and proposed order to the proper judge for signature. After review and
signing the proposed order, the judge would route the papers back to staff to
enter the order on the docket, make copies of the signed order, place the signed
order in the file and address envelopes to mail the copies of the signed order
to the parties, or possibly, if requested, fax the order to the parties.
With electronic filing, the word processing file containing the motion and
proposed order in the requesting attorney's office is electronically attached to
the filing message on the CourtLink website and, upon release by the attorney,
the documents will be received by CourtLink, converted to an image file and
filed and an electronic receipt would be returned to the filing attorney. An
e-mail message is simultaneous sent to the Board recorder and assigned judge, as
well as served on the other party, stating that the motion has been filed. The
judge can immediately view the motion and proposed order on his or her computer
screen, or print it out, without the need for the staff receiving the motion at
the Board to physically carry the papers to the judge's desk. (23) Whether or not the clerk's office has yet
opened the e-mail message, receipt of the motion has already been entered on the
case docket and the motion is available at the judges desk. Upon review of the
motion, the judge may electronically sign the proposed order, as submitted, or
enter revisions without the necessity of retyping unchanged material. With a few
mouse clicks, the final order may then be electronically attached to a filing
message on the system website and, upon release by the judge, the order will be
immediately filed, docketed and notice of its issuance sent to all parties
without any intervention of other Board staff. The final order is immediately
available to the parties on the CourtLink website.
Use of the system also is proving worthwhile in telephone scheduling
conferences. It is now possible for counsel to submit proposed schedules minutes
before a telephone conference. The schedules can be before both counsel and the
judge when the conference begins. Since the text is editable, the judge can make
adjustments to the proposed schedule as the conference proceeds and can deliver
a final scheduling order to counsel before the telephone call is completed.
We also believe that e-filing is making our decisions of more value to the
public. Discussion in our opinions is regularly supported by citations to
portions of the record. While this may be useful to the parties to a case or an
appeals court reviewing our decisions, the references often are of no value to
anyone else researching our decisions. With e-filing, each pleading document is
given a "filing ID number" when it is transmitted. When citing electronically
filed pleadings, our decisions now indicate the document's ID number permitting
any attorney or member of the public to access the underlying document.
Electronic filing is changing our routines. Mad scrambles to locate a file
are becoming a thing of the past. It is also not necessary to expedite delivery
within the Board's office of documents filed shortly before a hearing. It is now
possible for judges to call up documents as soon as they are filed without
physically obtaining the file. Indeed, not only can judges immediately access
pleadings at their desks, they can do so from home or any Internet-connected
computer anywhere in the world. The same is true for counsel in a case, or for
that matter, anyone following the proceeding. I am now notified immediately by
e-mail when any pleading is filed. By logging onto the CourtLink Internet site,
I immediately have a detailed listing of pleadings filed, including a notation
of each document requiring my signature. I can also check whether a pleading has
been filed by its due date without searching a stack of incoming filings waiting
to be docketed and can transmit and serve my own orders without waiting for
envelopes to be typed and mailings to be made.
In adopting electronic filing, we kept all of our rules and forms identical
to paper filings. Captions and formats have remained in their customary form.
When electronically filed documents are printed out, they are indistinguishable
from paper filed documents. We may in the future consider changes in our rules
to reflect the advantages of e-filing. Since volume and space are not
considerations for e-filing, we may determine to require that interrogatories
and answers be filed in the record. This would permit more expeditious handling
of motions to compel more complete answers since motions could then merely cite
to the record, rather attaching extensive extracts. Transcripts of depositions
and hearings, which are already available in electronic formats, may also be
filed.
The Board adopted electronic filing to reduce time and expense in handling
pleadings and orders, as well as to provide more useful access to the text of
documents. It did not adopt e-filing to save paper. For those of us who are more
comfortable reading paper documents, and record our thoughts in marginal notes,
hard copy of any document in the system is only a click away. We are finding
that, just as with editing of word processed documents, we print out working
copies of the more important pleadings.
The immediate electronic access to pleadings, however, eliminates the need to
physically move paper. Thus, a laptop computer can replace the pile of files
brought to the bench for trial. The electronic docket maintained by the e-file
service gives the nature, title, and date of filing for each document thus
permitting immediate access to the document itself by merely clicking on the
docket entry rather than trying to locate the item in multiple paper files. Of
greater value is that the document, even in its protected Adobe image form, is
word searchable, saving lengthy delays while a particular passage is
located.
We are hoping that in the future we will be able to integrate evidence and
trial transcripts into the e-file system. Having a complete electronic record
will permit additional efficiencies, including the electronic transmission of
entire records to the Court of Appeals.
After just over a month, the e-file system is more than meeting our
expectations. Although we have not required parties to e-file, we have yet to
have a party which has not adopted it enthusiastically. We hope that by Abraham
Lincoln's next birthday, when we have 5 months experience, we will be able to
report on its use when we have cases with more extensive electronic pleadings
and we begin to write opinions with the ability to electronically search and use
pleading documents.
1. Before being elected President, Lincoln was on retainer
to, among others, the Illinois Central Railroad where he was involved in major
construction contract matters.
2. 41 U.S.C. 426
(a) The head of each executive agency, after consulting with the
Administrator, shall establish, maintain, and use, to the maximum extent that is
practicable and cost-effective, procedures and processes that employ electronic
commerce in the conduct and administration of its procurement system.
3. §4.502(a).
4. 15 U.S.C. §7001(a)
5. We must acknowledge that even our traditional filing
system has been known to misplace records and that our offices have not been
open for physical filing during normal hours due to weather and other
emergencies.
6. On October 31, 2001, a
definitive agreement was signed for LexisNexis to acquire CourtLink.
7. For its convenience, the Board determined to replace its
5 year old analog copier with a digital copier to enhance its high-speed
printing and copying capability and to provide high speed scanning of documents.
8. D.C. Code §2-1701(13)
"Public record" means any document, book, photographic image, electronic data
recording, paper, sound recording, or other material, regardless of physical
form or characteristic, made or received pursuant to law or in connection with
the transaction of public business by any officer or employee of the District.
9. 5 U.S.C. §552(a)(3)(C)
In responding under this paragraph to a request for records, an agency shall
make reasonable efforts to search for the records in electronic form or format,
except when such efforts would significantly interfere with the operation of the
agency's automated information system.
10. 41 U.S.C. §417
(a) Establishment and maintenance of computer file by executive agency; time
period coverage
Each executive agency shall establish and maintain for a period of five years
a computer file, by fiscal year, containing unclassified records of all
procurements greater than the simplified acquisition threshold in such fiscal
year.
(b) Contents
The record established under subsection (a) of this section shall
include--
(1) with respect to each procurement carried out using competitive
procedures--
(A) the date of contract award;
(B) information identifying the source to whom the contract was awarded;
(C) the property or services obtained by the Government under the
procurement; and
(D) the total cost of the procurement;
(2) with respect to each procurement carried out using procedures other than
competitive procedures--
(A) the information described in clauses (1)(A), (1)(B), (1)(C), and
(1)(D);
(B) the reason under section 253(c) of this title or section 2304(c) of Title
10, as the case may be, for the use of such procedures; and
(C) the identity of the organization or activity which conducted the
procurement.
11. 31 U.S.C. 3555(c)
The Comptroller General may prescribe procedures for the electronic filing
and dissemination of documents and information required under this subchapter.
In prescribing such procedures, the Comptroller General shall consider the
ability of all parties to achieve electronic access to such documents and
records.
12. Text formats: Microsoft Word (*.doc), Word Perfect
(*.wpd), Text (*.txt), Rich Text Format (*.rtf), Portable Document Format
(*.pdf) Graphics formats: TIF (*.tif), BMP (*.bmp), and JPEG (*.jpg).
13. Once transmitted, a document cannot be withdrawn. In
the event that a party sends an erroneous document, such as an early draft, the
Board may direct that the erroneous document be deleted from the electronic
docket, and, thus, although it is not removed from the records, is effectively
"hidden" from the Board and other parties.
14. The Board has not chosen to receive bulk back-up files.
Instead, the Board is downloading individual documents as they are received to
specific case folders on our own internal network. For a number of years the
Board established on its own server a folder for each case into which was saved
any documents produced by the Board for the particular case. The Board is
continuing this procedure and is now saving documents filed electronically from
the outside in those same server folders together with the internally produced
documents. Thus the Board has an electronic copy of every document independent
of the outside system.
15. See Rule 11, Federal Rules of Civil Procedure; Board
Rule 127.
16. See Rule 5(d), Fed. R. C. Proc.
17. Rule 404. Maintenance of Original Document
Unless otherwise ordered by the Board, an original of all documents filed
electronically, including original signatures, shall be maintained by the party
filing the document and shall be made available, upon reasonable notice, for
inspection by other counsel or the Board. From time to time, it may be necessary
to provide the Board with a hard copy of an electronically filed document.
18. Rule 401
19. Rule 406
20. Rule 122.3
21. Rule 405
22. Some counsel not fully trusting e-filing have followed
their e-filings with paper copies of the pleadings.
23. Although the filing is sent directly to the Judge, it
is still subject to review by the clerk and may be rejected if improperly
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