REPORT NO. 146 June 12, 1998
S.7457 By: Senators Volker, Lack & Skelos
A.10972 By: M of A. Weinstein
Senate Committee: Judiciary
Assembly Committee: Judiciary
Effective Date: Immediately
AN ACT to amend the civil practice law and rules and judiciary law, to permit pilot programs for commencement of lawsuits by electronic means and service of interlocutory papers by facsimile transmission and e-mail
LAW AND SECTION REFERRED TO: CPLR 304, CPLR 2101,
CPLR 2103, CPLR 8023 and Judiciary Law 212
REPORT PREPARED BY THE COMMITTEE ON CIVIL PRACTICE LAW AND RULES (#51)
This bill would authorize the Office of Court Administration ("OCA") to set up pilot projects throughout the state testing the feasibility of allowing the initial filing of the summons (which now commences a lawsuit under CPLR 304) to be done by electronic means or facsimile. In addition, the measure would authorize service of interlocutory papers by e-mail and facsimile (where the parties consent). In order to facilitate the initial filing, the payment of the index number fee could be accomplished by credit card.
Currently, CPLR 2103 allows for service of interlocutory papers by "electronic means". This bill would actually restrict CPLR 2103 by setting up new criteria for service by e-mail (which was not fully foreseen when CPLR 2103 was last amended). The pilot projects that are envisioned by OCA are part of a growing trend to process information by electronic means, including in connection with the courts. Electronic filing is now routinely used in a number of federal courts including the United States Bankruptcy Court for the Southern District of New York, the United States District Court for the Eastern District of New York and others. Filing by electronic means and the service of interlocutory papers by electronic means promises to bring greater efficiency to litigation. Such technology is widely available. It also promises to level the playing field between the large and smaller law firms.
The bill does provide wide leeway to the Chief Administrator in the implementation and leaves many details unresolved. Unfortunately, this is a practical necessity given the fast developing pace of electronic media and the invariable need to proceed somewhat at trial and error.
Since participation in this program would be entirely voluntary and no litigant will be forced into the program against that litigant's will, we believe that the project should be undertaken and the risk of untoward consequences relatively minimal.
Conversely, the potential benefits of successfully moving to an electronic system are tremendous. Over the long term, enormous cost could be saved by the state and its various subdivisions if courts and clerks were able to make better use of electronic media. Practitioners would be better served by being able to more efficiently communicate with the court and adversaries and the public would be better served because electronically submitted information unvariably means that such information can be retrieved more easily and cheaply.
However, the Committee notes two important caveats. First, it is important that the OCA not impose substantial economic hardships on smaller rural counties or requirements that they purchase expensive electronic equipment over their consent. Pilots should take place in those counties where local officials voluntarily wish to participate. Second, it is important that system put in place be of a non-proprietary nature and that access to the system be without charge. See generally Recommendation of American Bar Association Standing Committee on Technology and Information Systems (urging state and local entities "to provide for electronic filing and retrieval of all appropriate documents through the Internet using non-proprietary formatting standards").
While no doubt the implementation of this pilot will bear close examination and scrutiny, it is a measure worth taking.
For the foregoing reasons, the bill is APPROVED.
Person who prepared the report: Paul H. Aloe, Esq.
Chair of the Committee: Paul H. Aloe, Esq.