E-filing blues at the California Supreme Court

On July 10, the California Supreme Court began its e-filing program. By September, e-filing of most documents will be mandatory. The program is off to a rocky start, and the very apparent problems raise serious questions about access to justice.

I got into this when a losing appellant filed a petition for review with the supremes. I thought, why not try the new e-filing system? Cutting down on paper copies, and not having to pay a filing service to cart a dozen copies of briefs to San Francisco for filing, along with copies for the court of appeal and the trial court, seemed sensible, not to mention economical.

E-filing is the subject of California Rules of Court 8.70-8.79. Rule 8.70(c)(7) provides: “an ‘electronic filer’ is a party filing a document in electronic form directly with the court, by an agent, or through an electronic filing service provider.” But not so for the Supreme Court. The court has contracted with a business, called TrueFiling, to provide the only e-filing portal. Parties and law firms cannot file “directly with the court.” This variance from Rule 8.79(c)(7) is allowed by new Rule 8.73, effective Jan. 1, 2017. For the “service” they provide, TrueFiling collects a fee, or multiple fees, for every filing they handle.

Rule 8.70(c)(7) is not the only rule that does not apply to the Supreme Court’s new e-filing program. The court’s website has a downloadable PDF file of 13 new rules for e-filing, most divided into sub-rules. (See link below.) One of the most interesting rules is 12(b), dealing with vendor fees. The rule states, inter alia, that “TrueFiling will assess fees for each electronic filing in accordance with the schedule posted on TrueFiling’s Web site, as approved by the Court.”

But there is no schedule listed on TrueFiling’s website. And a phone call to TrueFiling’s customer support line confirms that the fees to be assessed are only revealed after a party has listed their documents for filing, and there is no place on the website that shows how the fees are determined. When I called, TrueFiling told me that it is not their responsibility to reveal fees, and that they are unaware of Rule 12(b). They suggested that I call the Supreme Court to ascertain the applicable fees.

Perhaps the dominant fee in any filing is the “convenience fee.” Different TrueFiling webpages and training videos on YouTube make different claims about this fee. But essentially, it is a little over $10 and ends up applied to every filing. Convenient for TrueFiling, if not for the rest of us.

Rule 8.74(b) requires that any e-filed document be in “text searchable” format. TrueFiling’s website has a list of “FAQs,” one of which is about filing formats. TrueFiling’s position is clear and succinct: “Filings in Microsoft Word (DOC and DOCX), Adobe PDF and TIFF formats are accepted. TrueFiling will convert all documents to an Adobe PDF format upon submission to the Court’s local record system.” On page 30 of the 240 page User’s Guide, TrueFiling adds “Plain Text, TIFF, JPG, and PNG” files that it will convert to acceptable court format.

TrueFiling in fact does not convert files to a format acceptable to the court. My first submission of my answer to petition for review was submitted in scanned PDF form. Rather than converting it to the searchable format required by the supremes, TrueFile simply submitted the unsearchable scanned file. It took the Supreme Court two days to reject the file, for being improperly formatted.

When I contacted TrueFiling “support,” they were clear. They do not format documents, but merely pass on whatever is submitted to them. Their advice? Contact your court for guidance. The also provided a link to commercial programs that can be purchased to convert documents into proper court format. They did keep the “convenience fee” and other charges they had taken for my initial filing.

“The software for creating and reading documents must be in the public domain or generally available at a reasonable cost.” Rule 8.74(b)(2)(B). “Reasonable cost” is always a matter of subjective interpretation. What is reasonable to a government funded court, or to a large law firm may not be reasonable to a pro per litigant or the small business client of a solo practitioner.

There are companies whose only business is taking lawyer’s writing and formatting it into “text searchable” e-filable documents in the courts of appeal. They charge a flat fee of around $300 for each document processed. The software they use costs enough that they are justified in charging $300 per document for formatting. That $300 is a new cost, applied to every e-filing.

What does an inexperienced pro per do upon receiving a rejection notice? Are pro pers or inexperienced attorneys expected to realize that the online guidance they are being given is not accurate and will lead to file rejections?

What if my filing had been on the last day, instead of a few days early? With the Supreme Court now taking days to decide whether a filing will be accepted, what happens when a rejection occurs after the filing deadline? Is that jurisdictional?

I decided to try to find “public domain” or “reasonable cost” software to add bookmarks to, and convert, my scanned PDF file to a searchable file. Hello Google search. Two issues arose immediately. There are numerous companies offering “free” PDF-editing software. But all of them want customers to pay, if they actually want to use the program after a “free trial.” The “free trial” does not yield results that can be used for filing a “searchable” document as required by the court.

Perhaps as important, many of the companies require that your work product be loaded into “the cloud,” with no explanation or guarantee of security for the file. Once filed the document will be public record. But while working on it, who else is looking over your shoulder, at your client’s business? Many of the companies are in Europe or China, and may have different approaches to the security of cloud documents.

I elected to buy a program that was promised to edit scanned PDF files and Word files (but not WordPerfect, my native word processor). The program is on a list recommended by TrueFiling’s support team. The program company swiftly took my money and then downloaded a non-functioning program. I checked after spending my money, and learned that the RipoffReport.com site lists more than 126,000 complaints against the company. To respond to the complaints, the company has removed all phone numbers from its site, and all email to their “support” portal is returned as undeliverable.

Yet they remain recommended by TrueFiling, as an alternative to TrueFiling’s published promises that TrueFiling will properly format documents for filing.

Finally, I landed on another company, which allows a two-week trial before purchase. I spent a couple or three hours learning how to create bookmarks in PDF files and how to generate a searchable PDF final file. I can’t bill my client for either the software or the learning time.

At this point, to satisfy the demands of the Supreme Court’s new, “more efficient” program, I have spent hours of time, and hundreds of dollars in addition to the normal filing fees. I have paid fees to a private company to file documents I could just as easily have emailed to the court. Unlike some more indigent litigants, I didn’t have to keep jockeying for computer time at the local library or internet café.

TrueFiling says this mess will be coming to the 2nd District Court of Appeal within a year. What will this mean for pro per litigants and indigent parties? Or for solo practitioners who simply do not have the ability to give up many billable hours to wade through clearly inaccurate representations and then the process of learning new computer skills? Sure, have a paralegal or secretary drop their regular work to do the learning. But the attorney is going to end up liable for any mistakes made, any deadlines missed.

The company whose program finally worked was FoxitSoftware. Foxit’s support staff was also helpful and quick. The Supreme Court accepted my new, searchable file. TrueFiling charged me a second time for the filing.