Author:	Michael Griese University of Melbourne
Subjects:	Court Administration Information Storage and Retrieval Systems - law - European Community (Other articles) Information storage and retrieval systems -- Law -- United States (Other articles)
Issue:	Volume 9, Number 4 (December 2002)
Category:	Current Developments

Contents:

• Introduction
• Electronic Filing in General
• Electronic Filing in the Common Law (US and Australia)
• Electronic Filing in the United States
• Federal Courts
• The Legal Framework
• Federal Court Projects
• The CM/ECF System
• Statistics
• The PACER System
• Rules governing CM/ECF
• The Supreme Court
• State courts
• Examples
• Court Rules
• Filing procedures
• Court Confirmation
• Security Issues
• Pro Se Filers
• Recipient of Filing
• Payment Methods
• Electronic Filing in Australia
• Federal Courts
• The Legal Framework
• Federal courts projects
• The High Court of Australia
• The Family Court of Australia
• The Federal Court of Australia
• State and Territory Courts
• The Legal Framework
• State and Territory Court Projects
• WA, ACT, NSW and Tasmania
• Northern Territory
• Queensland
• Victoria
• South Australia
• Electronic Filing in Germany
• The current Legal Framework in Germany
• The ZPO
• The Signature Code
• The current Electronic Filing practice and projects in German courts
• Electronic Filing with the BGH
• Introduction
• The Pilot Project
• The Fiscal Court Hamburg
• Conclusion
• Notes

Introduction

1. Courts around the world today are being exposed to a steady increase in litigation that results in expanding caseloads. As a consequence litigation takes more and more time and becomes frustrating for all included parties, litigants, their lawyers, and judges. A key element into controlling and decreasing litigation times in courts is to streamline court procedures.[1] The establishment of computer technology with network, internet and electronic mailing capabilities in courts provides an outstanding opportunity to organize internal procedures with a secure environment creating and efficient, flexible system that reduces time constraints and is vastly more cost effective. Perhaps the most outstanding and challenging development in this context is electronic court filing. At the very least this technology will enable participating courts to receive pleadings, motions, briefs, and other documents in electronic form. More advanced systems could be part of an electronic court management system automating receiving, categorizing, processing and storing the relevant data within the courts computer system. This could also include an electronic appeal book (EAB).

2. According to 'A Guidebook for Electronic Court Filing', electronic filing can be defined as 'the process of transmitting documents and other court information to the court through an electronic medium, rather than on paper.[2] Electronic filing lets people get more of their work done with their PCs, to send and receive documents, pay filing fees, notify other parties, receive court notices, and retrieve court information'.

3. Using the US, Australian and German law as examples for the developments in three heterogeneous but important jurisdictions, this paper intends to examine the similarities and differences in the approach towards electronic filing.

4. Both, the United States and the Australian jurisdiction are Common Law jurisdictions, whereas Germany falls into the circle of Civil Law jurisdictions. This paper will therefore deal with the United States and the Australian developments under a conjoint Common Law heading.

   Electronic Filing in General

5. Pilot projects all over the world have been under careful scrutiny by the legal profession with considerable emphasis on the assumed, and to a certain degree proven advantages and potential dangers in using a system of this kind. Hence the benefits of a (working) electronic filing system can be summarized as:
   • Money Savings (long term).[3]
   • Time Savings.[4]
   • Space Savings.[5]
   • Increased Court Access for attorneys and Pro Se Litigants.[6]

6. Challenges electronic filing has to overcome are as follows:
   • Significant Setup Costs (short term).[7]
   • Technology Resistance.[8]
   • Security and Privacy.[9]
   • Uniformity and Interoperability.[10]

   Electronic Filing in the Common Law (US and Australia)

   Electronic Filing in the United States

   Federal Courts

   The Legal Framework

7. Although belonging to the group of Common Law countries, the US law provides a surprisingly comprehensive written set of rules these days. Accordingly, the basis for electronic filing has been established in the Federal Rules of Civil Procedure. The key provision in this context is Rule 5(e) of the Federal Rules of Civil Procedure, which was amended in 1996 authorizing the individual court to issue a local rule permitting papers to be filed by electronic means.[11] The corresponding rules in Bankruptcy matters, and Appeals are Rules 5005(a) of the Federal Rules of Bankruptcy Procedure, and Rule 25(a) of the Federal Rules of Appellate Procedure that are almost word for word identical with Fed.R.Civ.P.Rule 5(e). For Criminal matters such a rule can be found too, Rule 49(d) of the Federal Rules of Criminal Procedure, which merely refers to the provisions of Fed.R.Civ.P.Rule 5(e).

8. Even though the courts are empowered to establish own rules for electronic filing, the Federal Rules nevertheless establish some substantial requirements that have to be met by the local court rules.

9. In December 2001 new amendments where made to Rules 5(b), 6(e) and 77 of the Federal Rules of Civil Procedure and Rules 7005, 9006 and 9022 of the Federal Rules of Bankruptcy Procedure.

10. These amendments allow parties (including the court) involved in litigation to agree to exchange pleadings, motions, and briefs by electronic mail, fax, or other electronic means, Fed.R.Civ.P.Rule 5(b)(2)(D).[12] It has to be noted, that these provisions are incorporated by reference into Criminal Rule 49(b) and Bankruptcy Rule 7005.

11. Even if the court where the case is pending does not accept electronic filings parties now can agree to electronically exchange documents.[13] However, the amendments only apply for documents covered by Fed.R.Civ.P.Rule 5(a). Therefore service by electronic means is not applicable for the initial service of process including a summons and copy of the complaint as covered by Fed.R.Civ.P.Rule 4. Under the amended rules, parties can consent to the electronic service of these documents. The consent must be given in writing, either in handwritten form or alternatively via electronic transmission if so desired. Important to note is that consent will never be implied by conduct.[14] Rather it must be expressly stated in writing.[15]

12. Furthermore the amended rules clarify that a document is considered served at the moment the transmission is completed, unless the party lodging the document learns that it did not reach its intended recipient, Fed.R.Civ.P.Rule 5(b)(3).[16] An additional time of three days is added to the "prescribed period" in within the other party is required to respond, Fed.R.Civ.P.Rule 6(e) and Fed.R.Ban.P.Rule 9006(f).[17]

13. Finally Fed.R.Civ.P.Rule 77(d) and Fed.R.Ban.P.Rule 9022 specify that courts are meant to serve court orders in the manner provided in Fed.R.Civ.P.Rule 5(b) explained above.[18] Hence serving court orders by electronic means is included as well.

14. However, the amendments only apply to civil and bankruptcy matters. Comparable amendments to the Federal Rules of Appellate Procedure (Rules 25, 26) and Federal Rules of Criminal Procedure (Rules 45 and 49(c)) are currently on track, and are scheduled for implementation by approximately December 2002.[19]

    Federal Court Projects

15. The Federal courts were among the first courts in the US system to gain experiences with electronic filing with particular emphasis on specialized litigation courts. Bankruptcy courts stand out as being the pioneers in that area conducting pilot programs since the early 90's. Most of these pilots have proved to be successful.

16. Taking the experiences of these pilot projects into account, the federal courts in cooperation with the Administrative Office of the US Courts have subsequently developed their own electronic filing system, the Case Management/Electronic Case Files Project (CM/ECF).[20]

    The CM/ECF System

17. This sophisticated project aims to replace the existing case management systems with a new system based on current technology, actual software, and increased functionality. In addition to this, the participating courts electronically image all documents filed in paper. This is necessary to create and store a case file that is wholly electronic, even when paper based documents have been included. This new system provides the federal courts with the ability to maintain electronic case files and offer electronic filing of court documents over the Internet.

18. As one commentator expressed, the CM/ECF project is deemed as a triumphant success thanks largely to the simplicity and consistency of the system.[21] The CM/ECF system for the bankruptcy courts was commenced in 2001, and has resulted in a significant number of bankruptcy courts, currently 24 out of 90, using electronic filing systems already.[22] These are:
    • Alaska Bankruptcy Court
    • Arizona Bankruptcy Court
    • Arkansas Bankruptcy Court
    • California Southern Bankruptcy Court
    • Delaware Bankruptcy Court
    • Georgia Northern Bankruptcy Court
    • Illinois Southern Bankruptcy Court
    • Iowa Northern Bankruptcy Court
    • Kentucky Western Bankruptcy Court
    • Louisiana Eastern Bankruptcy Court
    • Louisiana Middle Bankruptcy Court
    • Missouri Western Bankruptcy Court
    • Nebraska Bankruptcy Court
    • New Jersey Bankruptcy Court
    • New York Eastern Bankruptcy Court
    • New York Southern Bankruptcy Court
    • North Carolina Western Bankruptcy Court
    • South Dakota Bankruptcy Court
    • Texas Southern Bankruptcy Court
    • Texas Western Bankruptcy Court
    • Vermont Bankruptcy Court
    • Virginia Eastern Bankruptcy Court
    • Washington Western Bankruptcy Court
    • Wisconsin Western Bankruptcy Court

19. It is planned to implement the CM/ECF system into the remaining courts in two-to-three years. The implementation of a parallel system for the district courts started in May 2002.[23] Nevertheless, a number of district courts, currently 9, offer electronic filing already. These are:
    • California Northern District Court
    • District Of Columbia District Court
    • Michigan Western District Court
    • Missouri Western District Court
    • Nebraska District Court
    • New York Eastern District Court
    • Ohio Northern District Court
    • Pennsylvania Eastern District Court
    • Oregon District Court

20. The list of federal courts equipped with the CM/ECF system is steadily growing and updated and can be accessed online.[24] For the appellate courts the corresponding CM/ECF is currently under development and it is expected to commence in the middle of 2003.[25]

    Statistics

21. In August 2001 the 19 federal courts that had the CM/ECF system implemented by that time had handled almost 1 million cases with more than 10 million docket entries. Around 33 percent of these documents where filed electronically, the numbers are expected to rise to about 50-60 percent in the future.[26] From the approximate 15,000 lawyers who were registered and trained by that time, about 8,000 had filed electronically.[27]

22. As the name implies, the Case Management/Electronic Case Files Project combines the case management element with the electronic court filing component resulting in a far more simplistic process. Apart from the aforementioned advantages of electronic filing it offers extra benefits for attorneys and the public. Case information, including the docket sheet and the filed documents, are provided for viewing and downloading to attorneys and the public at any time, from locations other than the courthouse, via the Internet.

    The PACER System

23. This is realized through the Public Access to Court Electronic Records (PACER) system.[28] Pursuant to 28. U.S.C. § 1930, a user fee of seven US cents per page applies, with a US $2.10 cap on the charge for any single document. Attorneys and parties involved in a case receive one free copy of documents filed electronically in their cases. Additional copies are charged with the same fee that applies for the public.

24. The PACER system finally provides a similar access to most case files in civil and bankruptcy matters held at courthouse archives. Criminal case records were available till September 2001 when the Judicial Conference of the United States prohibited Internet access to such cases due to the potential safety and law enforcement issues. In March 2002 however, the Conference approved a pilot program that included 11 courts to make criminal case files available through the PACER system again.[29]

    Rules governing CM/ECF

25. Attorneys who wish to participate in electronic filing have to meet certain requirements. Given that they are admitted to practice, they must register to file with the specific court that provides the CM/ECF system. Each court sets out its own rules regarding procedures and individual requirements on how to register. As a general rule courts provide the attorney with an identification name and password that will allow access for the filing component of the system. Furthermore the attorney needs to register with the aforementioned PACER system in order to obtain an identification name and password for the querying aspect of the courts system. According to Fed.R.Civ.P.Rule. 11(a) certain documents filed to a court have to be personally signed by at least one representing attorney.[30]

26. To fulfil this requirement by using electronic filing, attorneys sign an agreement with the court, that the use of their login name and password (whether by personal use or by delegation to another person in their office) constitutes their signatures on the documents electronically filed.[31] For documents that must be signed by the debtor (such as petitions, lists, schedules, statements, etc.), the originally executed paper copies must be kept by the debtor's attorney for five years. The electronically filed document will indicate a written signature by preceding the signature line with the expression "/s/" denoting "signed".

    The Supreme Court

27. While there are no current plans within the US Supreme Court to introduce electronic filing, the court took a first, although involuntarily step in that direction. Following the anthrax scare that closed down the Supreme Court building on 21 October 2001 mail delivery was interrupted and as a result delayed the court's traditional paper-based system for processing appeals. Subsequently, the court in an emergency procedure permitted electronic filing for a short time (between the 26 November and the 10 December).[32]

28. The biggest advantage of the federal system is undoubtedly the achieved level of uniformity. By definition all participating courts are bound to the same rules of electronic filing. Even though every court independently enacts administrative rules guiding the filing procedures they are substantially consistent. The related fees are also set by federal law. Hence they are the same at every participating court.

    State courts

29. A number of states have commenced the implementation of electronic filing systems as well. Currently there are approximately 15 states that offer electronic court filing or at least undertake pilot programs.[33]

30. The major difference to the unitary federal electronic filing system is that from a state level, it stands alone. As the independent states have exclusive legislative power over their courts they have slowly started to introduce their own separate electronic filing court systems. There are of course different developments in the diverse US states. As Sharon D. Nelson points out in her article, the states fall into 3 main groups, firstly the pioneers of electronic filing, secondly the wary beginners conducting pilot programs and finally and by far the majority the "WaitWatchers".[34]

    Examples

31. The State of Colorado definitely falls into that first group. It has launched an ambitious court management system back in 1997. This was followed by the commencement of electronic filing in July 2000 using the experience of the 3rd party vendor Court Link.[35] As a result of this during January 2001 all of the 63 Colorado courts where able to offer electronic filing in civil and domestic cases.[36] In May 2001 the probate and water courts followed. With this initiative the State of Colorado leads the US states with the first-ever state wide electronic filing program that will eventually cover every Colorado court. The court rules for electronic filing in the State of Colorado are set out in the Colorado Rules of Civil Procedure, with its own definition of electronic filing. Hereafter 'Electronic filing ("E-Filing") is the transmission of Documents to the Clerk of the Court, and from the Court, via the E-Filing System'.[37]

32. The State of New York presents a perfect example of a candidate from the second mentioned category. In New York a pilot electronic filing program named "Filing by Electronic Means" (FBEM) has been launched. In the Uniform Civil Rules for the New York Supreme and County Courts the term Electronic means is defined as: 'any method of transmission of information between computers or other machines, other than facsimile machines, designed for the purpose of sending and receiving such transmissions, and which allows the recipient to reproduce the information transmitted in a tangible medium of expression'.[38] Per definition, §202.5- b(a)(1) the program is limited to commercial claims in the Monroe County and New York County Supreme Court Commercial Divisions and tax certiorari claims in the Westchester County Supreme Court. Similar to the federal rule Fed.R.Civ.P.Rule 5(b)(2)(D) outlined above the state rule requires the parties to the exchange of electronic documents, §202.5- b(c).

    Court Rules

33. Even though the court rules regarding electronic filing of the different US states can be quite heterogeneous, there are some main categories that almost all of them cover. These can be summarized as filing procedures, court confirmation and security related regulations.[39] To a certain degree these groups are matching with the federal legal framework referring to electronic filing as discussed above.

    Filing procedures

34. Almost all state courts that allow electronic filing have enacted guidelines outlining correct procedures in how to file electronic documents with the court. One major requirement covered by most state jurisdictions is that the filing party, usually the attorney, registers for electronic filling with the court. One example for such a rule is §202.5-b(d)(1),(2) of the Uniform Civil Rules for the New York Supreme and County Courts.[40] Furthermore most courts have rules that provide guidelines for the timeline in which a document is deemed to be filed. If submitted on a working day within the usual business hours the filing is completed with the delivery onto the courts server. Filings that take place later or on a weekend day however, are deemed to be filed on the next business day.

35. Section 5.5 and 5.6 of rule 5 of the North Carolina Business Courts are exemplary for rules concerning dates and timelines.[41] Another issue that is regularly covered by state court rules is outlining the admissible document formats. Usually Adobe's PDF (Portable Document Format) and Microsoft's DOC format are accepted for text documents, TIFF (Tagged Image File Format) as the standard for images, and as possible future standard the emerging mark-up format XML (Extensible Markup Language). The Virginia Supreme Court Rule 1:17 c.1. declares that all documents shall be filed in the PDF or in other approved formats.[42] With the latter the court is able to leave the door open for acceptable new formats that might emerge in the future.

    Court Confirmation

36. When documents are filed with a court, confirmation is essential for the filing party, regardless as to whether the filing was done in the traditional way or electronically. Hence most court rules deal with the confirmation of electronically filled documents. §202.5-b(e)(4) of the Uniform Civil Rules for the New York Supreme and County Courts states that the clerk has to transmit a confirmation no later then one day after the court received the document.[43]

    Security Issues

37. As pointed out above, in order to ensure the identity of the filer registration is required by most jurisdictions. Therefore it is common practise for most courts, in return for the registration, to assign a unique login name and password for the attorney to enter the court's filing server. Armed with this the attorney is hereby provided with a guarantee that only after using these personal details electronic filing can be conducted under his name. §202.5-b(d)(3)-(6) of the Uniform Civil Rules for the New York Supreme and County Courts that have already been cited in reference to the registration requirement providing a good example for such a security rule.[44]

38. However, as all these states enact their court rules independently from each other there are naturally important areas where significant differences occur. Karen Evie Kainins identified the treatment of pro se filers, the recipient of the filing and the payment of filing fees, as the areas where state court rules differ considerably.[45]

    Pro Se Filers

39. In theory not every court filing is required to be made by an attorney. Thus, pro se litigants may conduct electronic filing if the court rules permit them to do so. With the order to adopt technical standards for the State Courts of Kansas a corresponding rule has been established. Subsection H. deals expressly with pro se filing and provides the courts with the option to facilitate electronic filing for pro se litigants.[46] Conversely the mentioned Colorado Rules of Civil Procedure Rule 121 prohibit filing by pro se litigants in sec 5 as they only permit licensed attorneys to participate in electronic filing.[47]

    Recipient of Filing

40. Many state courts have primarily relied on outside vendors to implement the electronic filing systems that have been adopted. Therefore some state courts require the documents to be filed onto the vendors filing server, which is then accessed by the court. For instance, Rule 7 C. of the State Court Rules of Texas sets a requirement ensuring the prospective filer to transfer the electronic documents onto the Vendors (currently Law Plus) server.[48] Most state courts however conduct the filing via their own court filing servers.

    Payment Methods

41. Finally, the methods of collecting the related filing fees differ throughout the state courts. While the Superior Court of the District of Columbia Electronic Filing Rule 13 states that the filer has to pay the filing fee directly to the electronic filing vendor, §202.5-b(e)(3) of the Uniform Civil Rules for the New York Supreme.[49] As well, County Courts requires the filer to attach a separate credit or debit card authorisation sheet with every electronic filing conducted.[50] The New York rule leaves the door open for future payments methods such as digital cash.[51]

    Electronic Filing in Australia

    Federal Courts

    The Legal Framework

42. Divergently to the discussed Federal Rules of Civil Procedure in the US, Australia in typical Common Law tradition does not have such a set of rules. Nevertheless, the Commonwealth Electronic Transactions Act 2000 deals with the legal requirements crucial for electronic filing.[52] As stated in clause 3 of the Act, the intention behind the Act is to 'facilitate the use of electronic transactions'.[53] It is also to enable business and the community to use electronic communications in their dealings with the government.[54]

43. The key provision of the Act is clause 8 which states as a general rule that, for the purposes of a law of the Commonwealth, a transaction is not invalid because it took place wholly or partly by means of one or more electronic communications. The term 'electronic communication' is defined in clause 5. It is not just restricted to the transaction of data, but includes communication in the form of text, image or speech by means of guided and/or unguided electromagnetic energy as well.[55]

44. Until 1 July 2001 the expression 'law of the Commonwealth' was restricted by clause 5(2) so that only laws specified within the regulation were affected. The reason for this phased application of the Bill was to allow government departments and agencies some time to establish the appropriate technical equipment to deal with electronic transactions.[56]

45. Division 2 of the Act - Requirements under laws of the Commonwealth with the clauses 9, 10, 11 and 12 enables electronic transactions to meet the traditional legal requirements of writing, signature, the production of original documents and the retention of electronic records by satisfying the relevant requirements. This include provisions for the writing, the signature the production and the retention of the electronic document. However, according to subclause 13(4) courts and tribunals are expressly exempted from the provisions of Division 2. Hereby the legislator acknowledges the independence of the judiciary and expresses that it is more appropriate for courts and tribunals to establish their own procedures for electronic filing.[57]

    Federal courts projects

    The High Court of Australia

46. The High Court of Australia obviously conducted a pilot program to test the feasibility of electronic filing in 1999. According to the report 'Technology and the Law' by the Law Reform Committee of the Parliament of Victoria a beta test site for lodgement of documents over the Internet had been established on the High Court website.[58] However, the court rules do not mention electronic filing at all, and there seem to be no immediate plans to introduce electronic filing anymore.[59]

    The Family Court of Australia

47. The Family Court of Australia has developed and commenced a three stage 'Online action plan'.[60] The first stage covers the launch of the Court's own Homepage and an electronic payment system to suppliers who agree to be paid electronically.[61] This stage is reportedly completed.[62]

48. In Stage 2 electronic filing is introduced, enabling the filing of certain Court documents via the Internet. The court planned to limit electronic filing to legal practitioners only during this Stage. Competition of stage 2 was due by December 2001.[63]

49. Stage 3 is designed to finely tune all aspects of the filing system and to provide a greater functionality and also see an increase in numbers of users.[64] Stage 3 was meant to commence in early 2001 and was due to be completed in December 2001.[65] A request to the Family Court for validation and possible updates was not answered at the completion of this paper.

    The Federal Court of Australia

50. By far the most advanced Australian Court in regards of electronic filing is the Federal Court of Australia. A fully developed filing system has been implemented at the court's web page, where filing parties can submit documents electronically onto the courts server.[66] The guiding rule within the Federal Court Rules is Order 1 Rule 5AC. It has to be noted that Rule 5AC is very general and not free from inconsistency in reference to the far more detailed regulations regarding the procedures of filing may be viewed on the court's 'welcome page' for electronic filing.[67] These are explained in a Frequently Asked Question (FAQ) manner in a user guide.[68] For instance Rule 5AC 2(a) states that the filing can be conducted by (i) using the cited court web page, or (ii) by sending the documents to an approved email address. A similar regulation can be found in Rule 5AC (4) dealing with the lodging of documents in an existing proceeding. As mentioned before however, the filing is only admissible through the court's home page.[69]

51. The court has set the deadline for receiving documents to 4:30pm.[70] Everything that is received later than this will be considered received on the following business day. If fees are due for the filing, these have to be paid online by using a credit card.[71]

52. A variety of formats can be used for filing, including Rich Text Format (RTF), PDF, TIF, Graphical Information Format (GIF), Joint Photographic Experts Group (JPG) and DOC.[72]

53. According to Rule 5AC 2(e) documents need to be accompanied by a cover sheet that provides personal data such as the name, the address, the phone number and the email address. Surprisingly, no registration is required to use the electronic filing facilities of the Federal Court. There is an option for 'frequent users' to register their details, but this is mainly provided for the convenience of the user, not for identification purposes.[73] If a signature is required for a document, an image of the corresponding document has to be transmitted or alternatively a facsimile of the signature may be affixed on the document by electronic means.[74] For affidavits, only the former option of imaging is admissible.[75]

    State and Territory Courts

    The Legal Framework

54. As explained above, the Electronic Transactions Act 2000 opened the door for electronic filing on the federal level by essentially allowing electronic communication with the government. In order to provide the obvious benefits of this Act for the States and Territories of Australia, the Standing Committee of Attorneys-General, in consultation with the States and Territories developed the Uniform Electronic Transactions Bill 2000.[76] The Bill is closely modelled on the Commonwealth Electronic Transactions Act 1999, and mirrors the substantive provisions of the Commonwealth's Act.[77] Subsequently the Bill has been endorsed by all jurisdictions, and since that time a corresponding Bill has been introduced and commenced in all Australian States and Territories except for South Australia and Western Australia.

    State and Territory Court Projects

    WA, ACT, NSW and Tasmania

55. Currently no court in Western Australia, the ACT, New South Wales or Tasmania offers electronic filing facilities.[78]

    Northern Territory

56. The Justice Information Unit of the Northern Territory Office of Court Administration started an Electronic document lodgement project by analysing the business and technology efforts involved in the introduction of such a system.[79]

    Queensland

57. The Court of Appeal in Queensland conducted a electronic filing project as well. During that pilot Legal Aid Queensland was given the ability to lodge documents electronically with the Court of Appeal.[80]

    Victoria

58. The Magistrates Court of Victoria has allowed electronic filing for almost a decade now. Courtlink, is the system that has been exclusively developed for the Magistrates Court of Victoria. Law firms that wish to lodge files with the court have to purchase the Electronic Document Interchange (EDI) program. The transmission of documents is conducted via an electronic mailbox that facilitates uploading and downloading of documents. Reportedly over 135 law firms are connected to Courtlink and more than 35 per cent of civil complaints are lodged electronically.[81] The obvious downside to this approach is the use of the old electronic mailbox facility that can be labelled as a closed system as it requires the use of a proprietary program, EDI. Hence the possibility to access the system is rather limited in comparison to the typically used electronic filing approaches that facilitate the popularity and accessibility of the Internet.

59. A further electronic filing project was initiated by the former Residential Tenancies Tribunal in Victoria where real estate agents could lodge claims via the Internet. In 1998 this system became part of the conjunctive Victorian Civil and Administrative Tribunal (VCAT).[82]

    South Australia

60. The Magistrates Court of South Australia commenced with an e-lodgement project using a published XML standard in June 2001.[83]

    Electronic Filing in Germany

    The current Legal Framework in Germany

61. The legal bases that made electronic filing admissible came into power just recently. The Federal Department of Justice and parliament enacted the 'Law to adjust the formal requirements of private law and other regulations for modern business transactions' (Gesetz zur Anpassung der Formvorschriften des Privatrechts und anderer Vorschriften an den modernen Rechtsgeschäftsverkehr) in July 2001, and it came into force in August 2001.[84] The most important changes in reference to electronic court filing were made to the code of civil procedure (Zivilprozessordnung or ZPO).

    The ZPO

62. The hereby inserted § 130a Abs. 1 Satz 1 ZPO recognises electronic records as equivalent to paper-based writing.[85] Hence the written form requirement can be satisfied by producing and lodging the equivalent document in electronic form. Furthermore, § 130a Abs. 1 Satz 2 ZPO requires a substitute for the common statutory (hand)written signature.[86] It states that the responsible person "shall" attach a 'qualified electronic signature' that is in accordance with the German Digital Signature Law (Signaturgesetz or SigG) to the electronic document.[87]

63. According to § 130a Abs. 2 ZPO it is up to the Federal Government and the state governments to determine the time for their fields of responsibility, by which they start to accept the filing of electronic documents to their courts.[88]

    The Signature Code

64. § 2 of the Signature Code provides the relevant definitions.[89] Hereafter 'electronic signature' means data in electronic form that is attached to, or logically associated with other electronic data and which serves as a method of authentication.[90] A 'qualified' electronic signature is an electronic signature that:
    (a) is uniquely linked to the signatory;
    (b) is capable of identifying the signatory;
    (c) is created using means that the signatory can maintain under his sole control;
    (d) is linked to the data to which it relates in such a manner that any subsequent change of the data is detectable;[91]
    (e) is based on a qualified certificate that was valid at the time of its creation; and
    (f) is created using a secure signature-creation device.

65. A certificate is an electronic attestation that links signature-verification data to a person and confirms the identity of that person.[92] A qualified certificate[93] is a certificate that meets special requirements[94] and can only be provided by an accredited certification-service-provider.[95] That provider must fulfil further requirements of the Signature Code.[96] In order to obtain such a qualified certificate the applicant has to prove his identification to the certification-service-provider (CA).[97] This extensive procedure requires submitting copies of the applicants ID card, passport pictures and a residence record.[98] Subsequently the CA creates the certificate by assigning a public and a private key to the applicant. It becomes clear that the required 'qualified electronic signature' is really what is more commonly known as 'digital signature'.[99]

66. The private key, together with additional private data will be stored on a chip card. In order to assure that the private key will be used exclusively by the chip card holder, the card will be access protected by use of an assigned Personal Identification Number (PIN).[100] To use the private key from the secured chip card the applicant has to purchase a chip card reader to implement and attach their private key to electronic documents. In order to open the private key encrypted document the recipient must possess the signatory's public key, which will be usually accessible via the CA. If a document that is encrypted with a private key can be subsequently opened with the corresponding public key this has three implications. Not only is it a validation of the identity of the signatory, it also guaranties the integrity, i.e. no alteration since the encryption, of the transmitted document. Finally it provides nonrepudiation, which insists that the transaction of the document cannot be denied or disowned.[101]

67. To ensure that an electronic document can be delivered by electronic means, the German Parliament passed another law on 25.06.2001, the 'Law to reformat delivery procedures at legal proceedings' (Gesetz zur Reform des Verfahrens bei Zustellungen im gerichtlichen Verfahren).[102]

68. Again, the ZPO was changed. § 174 Abs. 3 ZPO now permits the electronic delivery of legal documents that have been secured with an 'electronic signature'.[103] To recognise the delivery, the recipient or the recipient's software must return a confirmation. § 174 Abs. 1 ZPO now permits courts to return documents in electronic form to the corresponding parties.[104]

    The current Electronic Filing practice and projects in German courts

69. Even though the legal bases for electronic filing have been established there are currently only two courts that seriously experiment with the usage of such systems. In November 2001 the 'Federal Court of Justice' (Bundesgerichtshof - BGH) commenced an electronic filing project for civil cases.[105] After a successful pilot project from 1999 to 2001 the Fiscal Court of Hamburg[106] was the first German Court to allow electronic filing in May 2002.[107] Furthermore applications for intellectual property rights including trademarks and patents can be lodged electronically with the German Patent and Trade Mark Office (DPMA).[108]

    Electronic Filing with the BGH

    Introduction

70. The BGH is the highest German Court in the ordinary jurisdiction, which falls into civil and criminal jurisdiction. Predominately the BGH functions as a Court of Appeal. The number of lawyers admitted to lodge civil appeals with the BGH is limited to 30 specialized barristers, which exclusively deal with BGH cases. They are selected by an electoral committee and appointed by the Federal Minister of Justice.[109] Conversely criminal matters can be trialled by any lawyer admitted to practice in Germany or even by any legal University lecturer.

    The Pilot Project

71. As explained above, it is up to the federal or state governments to introduce electronic filing to their courts, § 130a Abs. 2 ZPO. The corresponding court rules for the BGH (ERVVOBGH - BR) where enacted by the federal government on the 26 November 2001.[110]

72. The filing procedures are outlined in the appendix to § 2. BR Nr.1 provides that the documents to be filed must be attached to an empty email and subsequently sent to the court's central email address via SMTP. The admissible formats for the attachment are outlined in Nr.5 and include, DOC, RTF, PDF, HTML and even XML. To facilitate automatic data processing of received documents, the filename for the attachment has to include the subject, the name of the filer and the date, BR Nr.6, whereas the subject of the email must state the docket number if known, otherwise the term 'new entry', BR Nr.2.[111] Furthermore the attached document must be secured with a qualified electronic signature that has to satisfy the explained requirements of the Signature Code, BR Nr.3.

73. If the filing barrister wants to attach more then one document, all further documents have to have an independent qualified electronic signature. A special software is required to create the signature, GERVA 1.11 distributed by DATEV.[112] In combination with the required chip card facility (usually purchased form DATEV too) GERVA can be used to encrypt, decrypt, compress, sign and verify electronic documents.[113] As this software converts the electronic document into a bitmap to add the signature, BR Nr.7 provides that the hereby created bitmap is an admissible format to be used by the signature software. Alternative programmes can be used if they guaranty that the thereby created qualified electronic signature can be verified with the GERVA software. Finally, BR Nr.4 provides that the email itself 'can' be encrypted for the transmission by using the GERVA software with the courts public key. For further security the email can be secured with an additional electronic signature.

74. The pilot project is divided into two phases. In the first phase which is scheduled till the end of 2002, all electronically lodged documents will be automatically decrypted via the court's server.[114] They will then be printed and put into the usual paper file. One of the court's panels however will test the interaction potential between the electronic filing system and the internal document management system.[115] Therefore incoming mails will be automatically forwarded to the responsible judge who then drafts possible orders and replies to electronically. Furthermore, parallel to the paper file an electronic file will be created to include all the documents created and exchanged in the matter. All described functions are conducted using standard software. In the second phase due to commence in 2003 the court plans to introduce a customized and improved case management software which will integrate the electronic filling facilities and unify all subsequent processes like research and archiving.[116]

    The Fiscal Court Hamburg

75. The Fiscal Court of Hamburg has permitted electronic filing since May 2002, one month after the senate of the City of Hamburg introduced the corresponding court rules in early April 2002. The court rules have a lot of similarities with the court rules of the BGH just examined. Again the filing procedures are outlined in the appendix to § 2 (Hamburg court rules - HR). Documents can be filed via SMTP as attachment to an email or directly as email, Nr.1. Admissible document formats are again outlined in HR Nr.5 and are identical to the BGH requirements (DOC, RTF, PDF, HTML and XML). Additionally TIFF is accepted if an imaged document needs to be filled, HR Nr.5 f). If an image is attached, a working paper in one of the accepted text formats that carbon copies the image has to be filed as well, HR Nr.6. Accepted versions of these formats might change over the time, therefore they are announced on the court's web page.[117]

76. Similar to the BGH rules the subject of the email has to include either the docket number (if known), otherwise it has to be labelled 'new entry', HR Nr.2 but there are no provisions for the labelling of attached documents. If the documents are sent as an attachment then that attachment needs to be signed with the previously explained qualified electronic signature, HR Nr.3 1. The qualified electronic signature needs to be attached to the email only if the document is included in the email itself, HR Nr.3 2. According to HR Nr.3 3 this signature needs to be in the standard 'ISIS-MTT' (Industry Signature Interoperability Specification MailTrust)[118] a standardized format agreed upon by the 'German CA Association for Digital Signatures' (Arbeitsgemeinschaft "Trust-Center-Betreiber für digitale Signaturen")[119] to achieve interoperability between the various IT security management applications used by German and European CA's. Moreover the ISIS-MTT signature has to be based on a certificate that is verifiable by the court, HR Nr.3 4. Currently the only accepted certificate is created by the software GERVA 1.11 explained above. Finally the outgoing email 'can' be encrypted by using the MailTrust standard which is a part of the explained ISIS-MTT, HR Nr.4.

77. Identical to the process at the BGH, the email is sent to a central court email address, where the document is automatically decrypted with the GERVA software, indexed (in order to send out the confirmation receipt) and forwarded by the court management software 'hd-GEORG' to the responsible court agency. Here the documents are processed and archived in an electronic file using the case management system 'PROXESS' which functions as an extension for the different management modules ('hd-GEORG' and 'hd-SOLON' produced by 'dahm datensysteme').[120] The pleading is then forwarded to the responsible judge who uses yet another software, 'hd-SOLON' to draft his reply and send it back electronically. Parallel to the electronic file an identical paper file will be created.

    Conclusion

78. With a vast variety of federal and state courts offering electronic filing, it has become a common service of many US courts. With regards to Australia and Germany only a handful of courts offer a comparable service so far. Essentially this development can be explained with the dissimilar timeframe in which electronic filing was introduced. While the US laws allowed electronic filing since 1996, the equivalent laws in Australia and Germany have only been changed very recently.

79. While the implementation of electronic filing commands appreciation as an important step towards streamlining court procedures, the German approach appears to be problematic in some areas and raises concerns that need to be addressed. First of all, the very complicated authentication system comes to mind. In order to electronically sign a document, the sender has to use a qualified electronic signature. Such a signature requires a prospective filer to apply for a unique chip card equipped with a private key and secured by a PIN number issued by a CA after a time extensive application process. Not only that, in order to use the chip card, the user also needs to purchase a chip card reader and special software, which costs approximately 60€ to import the private key into the corresponding computer applications.[121] Furthermore the usage of the card together with the private key is priced at about 40€ per year.[122] While this might be an acceptable investment for interested law firms, the occasional private per se filer is unlikely to go through the whole authentication procedure. By looking at the alternative, the whole system appears to be incredibly unbalanced, taking into consideration that the equivalent paper document could be filed by simply posting it in a sealed envelope.

80. A simplified and quicker access to the judicial system is deemed to be one of the major benefits of electronic filing. This however implies a well-crafted and balanced set of rules and procedures. Looking into the examined common law systems, it becomes clear that the need for authentication and data protection can be approached differently. Lodging documents with the Federal Court of Australia does not even require registration. All necessary information will be procured from the entailed information and the conjunctive online payment. As shown, US courts that offer electronic filing demonstrate a common practice whereby prospective filers are required to register with the courts in order to obtain a unique login and password. Using this confidential information to file documents provides the necessary identification of the filer. In order to overcome written signature requirements that postulate the authentication of the document, there are often agreements where the use of a unique login in combination with the corresponding password constitutes an electronic signature. In combination with an online payment system for contingent filing fees, this approach appears to be much more user friendly and therefore capable of attracting the public to electronic filing.

81. Perhaps German Courts that plan the implementation of an electronic filing facility in the future should consider an approach that follows the successful US model. § 130a ZPO would not necessarily prevent this, as the call for the qualified electronic signature is only a 'shall' provision. If the legislator would have wanted the qualified signature requirement to be an integral part of equalling electronic documents, there would be a need to establish a 'must' provision instead.

82. Secondly, as pointed out above, the BGH and the Fiscal Court of Hamburg use a dual approach in reference to their case management system. An electronic file is created if the filing was conducted via the electronic filing service, but concurrently a similar paper file will be opened. It is questionable if this strategy will help to rationalise court procedures, especially taking into account that both files need to be identical and therefore require permanent updating and crosschecking. Hence it appears to be likely that the workload of the courts will be even higher then prior to the introduction of electronic filling.

83. Once again the US courts, in particular the federal courts with their CM/ECF system seem to provide a more practical approach. Electronically received documents are exclusively stored in the electronic case management system. Printing only occurs in special and rare circumstances. Moreover, all traditionally filed documents are imaged and subsequently merged into the case management system. Of course this has to be deemed as a dual approach as well. The workload will be higher initially, but over time the electronic database will become more and more comprehensive so that there will be less need for the old hard copy files. Hence this approach truly promises to streamline the work of the courts and ultimately enhance the speed and the quality of the court service.