Matrimonial Matters: The tide is coming — e-filing in matrimonial cases

Listen to this article

“Technology is critical to our efforts to enhance the efficiency and productivity of court operations, as well as to improve our service to the public. E-filing is the centerpiece of these efforts. It reduces costs and saves time for both the court system and litigants, improves access to the courts, and sharply reduces the environmental impact of litigation. E-filing is the future of our court system, and we must expand, thoughtfully and carefully, but also diligently, the use of this powerful tool.”

— Chief Judge Janet DiFiore Chief Judge of the State of New York

As many readers know, New York’s Office of Court Administration is pushing forward with electronic filing (e-filing) of court documents. It is inevitable as our whole culture is rapidly changing as a result of the internet. The 2017 Report of the Chief Administrative Judge to the Legislature, the Governor, and the Chief Judge of the State of New York, Electronic Filing in the New York State Courts has been released. While there are several reasons for matrimonial practitioners to get on board the e-filing train, some of us have particular concerns because the personal information contained in matrimonial court documents makes them ripe as targets for exploitation by computer hackers.

Nevertheless, e-filing in matrimonial cases is almost certain to become mandatory in the not too distant future. Currently, there is a statutory requirement that the chief administrative judge must have the approval of the state legislature prior to making e-filing mandatory in several matters, including matrimonial cases. However, the 2017 report pushes for that requirement to be dropped and that the chief administrative judge be allowed to have the discretion on any implementation.

The reasons given in the report for extending e-filing to matrimonials: “The record in e-filing in this state is outstanding. … There is no good reason why the benefits that come to practitioners from e-filing should be limited in this inventory as is done by current legislation.” The report explains that due to the “outstanding” e-filing record, “We can approach [matrimonial case] mandatory e-filing, with confidence that past experience will be replicated in this area of practice.” The report also claims, “The County Clerks … are eager to reap more such [efficiency] benefits.”

The report states that the confidentiality concern is what has prevented mandatory e-filing in matrimonials, and says: “Confidentiality … is entirely compatible with inclusion of these matters in the e-filing project.” The report bases this assertion on two capabilities in the e-filing software: “The capability to segregate defined groups of cases behind a firewall if a direction to do so is given” [and] the functionality of being able to retrieve “an electronic audit trail” which can “identify by User ID those who have access confidential documents.” Supposedly, only User IDs of parties and their counsel would be allowed to penetrate the security firewall.

The authors of the report have more confidence in electronic confidentiality than in human confidentiality, pointing out that “fallible humans can sometimes make mistakes and misplace a file, resulting its receiving access that it is not supposed to receive. This happens rarely, but it has sometimes occurred, and that is always unfortunate. NYSCEF (OCA’s electronic filing system) as an automated application with built-in security does not make such errors. Therefore, we believe, matrimonial matters will be more secure if filed with NYSCEF than if the current hard copy regime persists.”

One word comes to mind in response to this assertion: “WikiLeaks!”

Whatever misgivings matrimonial practitioners may have about e-filing, it is clear from the recently released report that it is coming. Look for updates on its status in future columns.

Sara Stout Ashcraft is a partner in Ashcraft, Franklin, Young & Peters LLP. She concentrates her practice in the areas of matrimonial and family law.