Judge Matthew S. Watson – November 2001
Administrative Judge
District of Columbia Contract Appeals Board
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 filed.
