AO No. 2011-4 — E-filing Project in the 20th Circuit Court, the Ottawa County Probate Court, and the 58th District Court (Ottawa County)

[Entered September 22, 2011; amended January 23, 2013, May 22, 2013, December 23, 2015, and February 28, 2018. Text as amended by order entered February 28, 2018.]

On order of the Court, the 20th Circuit Court, the Ottawa County Probate Court, and the 58th District Court (hereafter Ottawa County or participating courts) are authorized to continue their e-filing projects during a transition period while the State Court Administrative Office prepares and implements a statewide e-filing system. The participating courts are aware that rules regarding electronic filing have been published for comment by this Court. If this Court adopts electronic filing rules during the pendency of Ottawa County’s Electronic Document Filing Project, the participating courts will, within 60 days of the effective date of the rules, comply with the requirements of those rules. In addition, it is anticipated that the Ottawa County courts, along with other court locations that participated as e-filing pilot courts, will be among the first group of courts that will connect with any statewide system for the purposes of testing and early integration.

The participating courts will report to and provide relevant information as requested by the State Court Administrative Office.

1. Construction

The purpose of the transition period for e-filing is to continue successful e-filing efforts in the participating courts and to coordinate with state efforts, through a vendor or otherwise, to build and operate a statewide system of e-filing. The participating courts may exercise discretion to grant necessary relief to avoid the consequences of error so as not to affect the substantial rights of the parties. Except for matters related to electronically filing or service of documents during the transition period, the Michigan Rules of Court govern all other aspects of the cases involved in the pilot project.

2. Definitions

a. “Clerk” means the Ottawa County Clerk and clerks of the participating courts.

b. “E-Filing” means any court pleading, motion, brief, response, list, order, judgment, notice, or other document filed electronically pursuant to the program.

c. “LAO” means all local administrative orders governing the participating courts.

d. “MCR” means the Michigan Court Rules.

e. “Transition e-filing program” or “project” means the e-filing initiative of the participating courts, the County Clerk, and the Ottawa County Information Technology Department in conjunction with ImageSoft, Inc., and under the supervision of the State Court Administrative Office. This e-filing application facilitates the electronic filing of pleadings, motions, briefs, responses, lists, orders, judgments, notices, and other documents during the period after enactment of statutory authority to fund and operate a statewide electronic filing system in the following case types:

i. The 20th Circuit pilot program will begin testing with adoption case types AB, AC, AD, AF, AG, AM, AN, AO, AY, civil case types ND, NF, NH, NI, NM, NO, NP, NS, NZ, CB, CC, CD, CE, CF, CH, CK, CL, CP, CR, CZ, PC, PD, PR, PS, PZ, criminal case types FC and FH, domestic relations case types DC, DM, DO, DP, DS, DZ, UD, UE, UF, UI, UM, UN, UT, UW, and neglect/abuse case type NA.

ii. The Ottawa County Probate Court will begin testing with civil case type CZ.

iii. The 58th District Court will begin testing with general civil case type GC as part of Phase 1 and additionally in other case types as follows:

1. Phase II: Summary proceedings case types, including LT and SP, beginning with the effective date of this order.

2. Phase III: Post disposition collection proceedings in small claims proceedings (“SC”) beginning with the effective date of this order.

3. Phase IV: Criminal proceedings case types, including EX, FY, OM, SM, FD, FT, OD, OI, OT, SD, SI, ST, OK, ON, SK, and SN, beginning not less than six months after implementation of Phase II and III.

f. “Technical malfunction” means any hardware, software, or other malfunction that prevents a user from timely filing a complete e-filing or sending or receiving service of an e-filing.

g. “Web-based portal” means a website provided by ImageSoft where electronic filings may be submitted and delivered to the participating courts’ OnBase workflow.

3. Participation in the Program

a. Participation in Ottawa County’s program is elective for all case types identified in Section 2.e., above. Participation may be initiated with new case filings or existing case files. At the discretion of the judge, participation may also include postdisposition proceedings in qualifying case types.

b. This is a voluntary e-filing project; however, once a case is designated as part of the e-filing project, it is presumed that all further documents will be filed electronically. Ottawa County recognizes that circumstances may arise preventing one from e-filing. To ensure all parties retain access to the participating courts, parties that demonstrate good cause will be permitted to file documents with the clerk, who will then file the documents electronically. Among the factors the participating courts will consider in determining whether good cause exists to excuse a party from e-filing is a party’s access to the Internet.

4. E-filings Submission, Acceptance and Time of Service with the Court; Signature

a. In an effort to facilitate uniform service within the scope of this project, the participating courts strongly recommend electronic service.

b. Program participants must submit e-filings pursuant to these rules and the program’s technical requirements. The clerk may, in accordance with MCR 8.119(C) reject documents submitted for filing that do not comply with MCR 2.113(C)(1), are not accompanied by the proper fees, clearly violate Administrative Order No. 2006-2 (Privacy Policy), do not conform to the requirements of this project, or are otherwise submitted in violation of a statute, MCR, LAO, or program rules.

c. Electronic filing is not restricted by the operating hours of the court and any document submitted at or before 11:59 p.m. of a business day is deemed filed on that business day. Any document submitted on a weekend or court holiday is deemed filed on the next business day. The clerk shall process electronic submissions on a first-in, first-out basis.

d. E-filings shall be treated as if they were hand-delivered to the participating courts for all purposes under statute, MCR, and LAO.

e. A pleading, document, or instrument e-filed or electronically served under this order shall be deemed to have been signed by the judge, court clerk, attorney, party, or declarant.

i. Signatures submitted electronically shall use the following form: /s/ John L. Smith.

ii. A document that requires a signature under the penalty of perjury is deemed signed by the declarant if, before filing, the declarant has signed a printed form of the document.

iii. An e-filed document that requires a signature of a notary public is deemed signed by the notary public if, before filing, the notary public has signed a printed form of the document.

f. The original of a sworn or verified document that is an e-filing (e.g., a verified pleading) or part of an e-filing (e.g., an affidavit, notarization, or bill of costs) must be maintained by the filing attorney and made available upon reasonable request of the participating courts, the signatory, or opposing party.

g. Proposed orders shall be submitted to the participating courts in accordance with the provisions of the program. The participating courts and the clerk shall exchange the documents for review and signature pursuant to MCR 2.602(B).

h. By electronically filing the document, the electronic filer affirms compliance with these rules.

5. Time for Service and Filing of Pleadings, Documents, and Motions; Judge’s Copies, Hearings on Motions; Fees

a. All times for filing and serving e-filings shall be governed by the applicable statute, MCR, and LAO as if the e-filings were hand-delivered.

b. The electronic submission of a motion and brief through this program satisfies the requirements of filing a judge’s copy under MCR 2.119(A)(2). A judge may require that one “courtesy copy” or “chambers copy” of any dispositive motion and all accompanying exhibits, as well as responses and replies, or any motion and brief in which the motion, brief, and attachments equal 40 pages or more be submitted directly to the judge’s chamber in paper format. Any exhibits must be appropriately tabbed. Good practice requires that in appropriate cases, relevant portions of lengthy documents be highlighted. A printed copy of the e-filing transmission receipt must be attached to the front of the pleading. The requirement to provide a “courtesy copy” or “chambers copy” at a judge’s request shall expire on May 22, 2018.

c. Applicable fees, including e-filing fees and service fees, shall be paid electronically through procedures established by the clerk’s office at the same time and in the same amount as required by statute, MCR, or LAO.

6. Service

a. All parties shall provide the participating courts and opposing parties with one e-mail address with the functionality required for the program. All service shall originate from and be perfected upon this e-mail address.

b. Alternatively, all parties shall register their e-mail addresses within the web-based portal and all documents filed within the web-based portal relating to the case will be served to the registered e-mail address or, after implementation, in compliance with any statewide e-filing system requirements.

c. Unless otherwise agreed to by the participating courts and the parties, all e-filings must be served electronically to the e-mail addresses of all parties. The subject matter line for the transmittal of the document served by e-mail shall state: “Service of e-filing in case [insert caption of case].”

d. The parties and the participating courts may agree that, instead of e-mail service, e-filings may be served to the parties (but not the participating courts) by facsimile or by traditional means. For those choosing to accept facsimile service:

i. the parties shall provide the participating courts and the opposing parties with one facsimile number with appropriate functionality,

ii. the facsimile number shall serve as the number to which service may be made,

iii. the sender of the facsimile should obtain a confirmation delivery, and

iv. parties shall comply with the requirements of MCR 2.406 on the use of facsimile communication equipment.

e. Proof of service shall be submitted to the participating courts according to MCR 2.107(D) and this order.

7. Format and Form of E-filing Service

a. A party may only e-file documents for one case in each transaction.

b. All e-filings shall comply with MCR 1.109 and the technical requirements of the participating courts’ vendor and, after implementation, the vendor implementing the statewide e-filing system.

c. Any exhibit or attachment that is part of an e-filing must be clearly designated and identified as an exhibit or attachment.

d. All e-filings, subject to subsection 6(d) above, shall be served on the parties in the same format and form as submitted to the participating courts.

8. Pleadings, Motions, and Documents not to be E-filed

The following documents shall not be e-filed during the program and must be filed by the traditional methods provided in the MCR and the LAO:

a. documents to be filed under seal (pursuant to court order) and

b. documents for case evaluation proceedings.

9. Official Court Record; Certified Copies

a. For purposes of this program, e-filings are the official court record. An appellate record shall be certified in accordance with MCR 7.210(A)(1).

b. Certified copies or true copies of e-filed documents shall be issued in the conventional manner by the clerk’s office in compliance with the Michigan Trial Court Case File Management Standards.

c. At the conclusion of the program, if the program does not continue in some other format, the clerk shall convert all e-filings to paper format in accordance with MCR 8.119(D)(1)(d). Participating attorneys shall provide reasonable assistance in constructing the paper record.

d. At the conclusion of the program, the clerk shall provide for record retention and public access in a manner consistent with the instructions of the participating courts and the MCR.

10. Court Notices, Orders, and Judgments

At the participating court’s discretion, the participating court may issue, file, and serve orders, judgments, and notices as e-filings. Pursuant to a stipulation and order, the parties may agree to accept service from the participating courts via facsimile pursuant to the procedures set forth in Rule 6(d) of this order.

11. Technical Malfunction

a. A party experiencing a technical malfunction with the party’s equipment (such as a Portable Document Format [PDF] conversion problems or inability to access the program sites), another party’s equipment (such an inoperable e-mail address), or an apparent technical malfunction of the participating court’s equipment, software, or server shall use reasonable efforts to timely file or receive service by traditional methods and shall provide prompt notice to the participating courts and the parties of any such malfunction.

b. If a technical malfunction has prevented a party from timely filing, responding to, or otherwise perfecting or receiving service of an e-filing, the affected party may petition the participating courts for relief. Such petition shall contain adequate proof of the technical malfunction and set forth good cause for failure to use non-electronic means to timely file or serve a document. The participating courts shall liberally consider proof of the technical malfunction and use discretion in determining whether such relief is warranted.

12. Privacy Considerations

a. With respect to any e-filing, the following requirements for personal information shall apply:

i. Social Security Numbers. Pursuant to Administrative Order No. 2006-2, full social security numbers shall not be included in e-filings. If an individual’s social security number must be referenced in an e-filing, only the last four digits of that number may be used and the number specified in substantially the following format: XXX-XX-1234.

ii. Names of Minor Children. Unless named as a party or otherwise required by statute, court rule, or administrative order, the identity of minor children shall not be included in e-filings. If a non-party minor child must be mentioned, only the initials of that child’s name may be used.

iii. Dates of Birth. Except as required by statute, court rule, or administrative order, an individual’s full birthdate shall not be included in e-filings. Subject to the above limitation, if an individual’s date of birth is otherwise referenced in an e-filing, only the year may be used and the date specified in substantially the following format: XX/XX/1998.

iv. Financial Account Numbers. Full financial account numbers shall not be included in e-filings unless required by statute, MCR, or other authority. If a financial account number must be referenced in an e-filing, only the last four digits of the number may be used and the number specified in substantially the following format: XXXXX1234.

v. Driver’s License Numbers and State-Issued Personal Identification Card Numbers. A person’s full driver’s license number and state-issued personal identification number shall not be included in e-filings. If an individual’s driver’s license number or state-issued personal identification card number must be reference in e-filing, only the last four digits of that number should be used and the number specified in substantially the following format X-XXX-XXX-XX1-234.

vi. Home Addresses. With the exception of a self-represented party, full home addresses shall not be included in e-filings. If an individual’s home address must be referenced in an e-filing, only the city and state shall be used.

b. Parties wishing to file a complete personal data identifier listed above may:

i. Pursuant to and in accordance with the MCR and the LAO, file a motion to file a traditional paper version of the document under seal. The participating courts, in granting the motion to file the document under seal, may still require that an e-filing that does not reveal the complete personal data identifier be filed for the public files, or

ii. Pursuant to and in accordance with the applicable MCR and LAO, obtain a court order to file a traditional paper reference list under seal. The reference list shall contain the complete personal data identifiers and the redacted identifiers included in the reference list shall be construed to refer to the corresponding complete personal data identifiers. The reference list must be filed under seal, and may be amended as of right.

c. Parties should exercise caution when filing papers that contain private or confidential information, including, but not limited to, the information covered above and listed below:

i. Medical records, treatment and diagnosis;

ii. Employment history;

iii. Individual financial information;

iv. Insurance information;

v. Proprietary or trade secret information;

vi. Information regarding an individual’s cooperation with the government; and

vii. Personal information regarding the victim of any criminal activity.

13. Records and Reports

Further, the participating courts will file a joint annual report by January 1 of each year (or more frequently or on another date as specified by the Court), that outlines the following:

a. Detailed financial data that show the total amount of money collected in fees for documents filed or served under the project to date, the original projections for collections of fees, and whether the projections have been met.

b. Detailed financial information regarding the distribution or retention of collected fees, including the amount paid to each vendor per document and in total for the subject period and the amount retained by the participating courts or funding unit per document and in total for the period.

c. Detailed information regarding whether the monies retained by the participating courts are in a separate account or commingled with other monies.

d. A detailed itemization of all costs attributed to the project to date and a statement of whether and when each cost will recur.

e. A detailed itemization of all cost savings to the participating courts whether by reduced personnel or otherwise and a statement of whether any cost savings to the participating courts are reflected in the fee structure charged to the parties.

14. Amendments

Procedural aspects of these rules may be amended upon the recommendation of the participating judges, the approval of the chief judge, and authorization by the State Court Administrator. Proposed substantive changes, including, for example, a proposed expansion of the program to permit additional case types and a proposed change in fees, must be submitted to the Supreme Court for approval.

15. Expiration

This pilot program, allowing parties to electronically file documents in cases assigned to participating judges, shall continue until further order of the Court.