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Update to E-filing Rule and Safe Harbor Policy

2/25/2019

February 25, 2019

One year into the e-filing mandate has led to a couple of updates in court rules and policies pertaining to e-filing. First, Illinois Supreme Court Rule 9 was amended and then the Illinois Supreme Court Policy on Assistance to Court Patrons by Circuit Clerks, Court Staff, Law Librarians, and Court Volunteers (Safe Harbor Policy) was updated.

The Supreme Court first defined a good cause exemption to mandatory e-filing in Illinois Supreme Court Rule 9(c) in December 2017 to protect the needs of the most vulnerable self-represented litigants (SRLs). The exemption reduces the burden on clerk staff of providing technical e-filing assistance to this segment of the Illinois population and ensures that e-filing does not serve as an impediment to accessing the courts or moving cases forward in an appropriate manner.

Some concerns have been expressed about the use of e-filing exemptions because of a desire to avoid dual systems of e-filing and paper filings. However, it is possible to allow an SRL to file with a good cause exemption and still achieve a paperless court system. Courts first should encourage SRLs to e-file if they are capable and have the technology necessary; if not, clerks can accept paper filings if the exemption applies, file the document conventionally and save the scanned document to the local case management system.

The Supreme Court revisited the e-filing exemptions during term in November 2018 and made one notable change after hearing from attorneys with disabilities about particular challenges to e-filing. Previously, SRLs with a disability preventing them from e-filing were exempted from e-filing as good cause, but the rule was silent as to attorneys or non-party filers. As amended, Rule 9 creates a fourth category of automatic exemption and changes the "good cause" section from 4 to 5. The new rule reads:


c) Exemptions. The following types of documents in civil cases are exempt from electronic filing:
      (1)Documents filed by a self-represented litigant incarcerated in a local jail or 
correctional facility at the time of the filing; 
      (2)Wills;
      (3)Documents filed under the Juvenile Court Act of 1987; and
      (4)Documents filed by a person with a disability, as defined by the Americans
             with Disabilities Act of 1990, whose disability prevents e-filing; and
      (5) Documents in a specific case upon good cause shown by certification. Good cause exists where a self-represented litigant is not able to e-file documents for the following reasons: no computer or Internet access in the home and travel represents a hardship; a disability, as defined by the Americans with Disabilities Act of 1990, that prevents e-filing; or a language barrier or low literacy (difficulty reading, writing, or speaking in English). Good cause also exists if the pleading is of a sensitive nature, such as a petition for an order of protection or civil no contact/stalking order.
      A Certification for Exemption From E-filing shall be filed with the court—in person or by mail—and include a certification under section 1-109 of the Code of Civil Procedure. The court shall provide, and parties shall be required to use, a standardized form expressly titled “Certification for Exemption From E-filing” adopted by the Illinois Supreme Court Commission on Access to Justice. Judges retain discretion to determine whether good cause is shown. If the court determines that good cause is not shown, the court shall enter an order to that effect stating the specific reasons for the determination and ordering the litigant to e-file thereafter.
      Judges retain discretion to determine whether, under particular circumstances, good cause exists without the filing of a certificate, and the court shall enter an order to that effect. 

The practical effect of this amendment is that attorneys, SRLs, and non-party filers with a disability preventing them from e-filing are now automatically exempt and such persons do not need to file a Certification for Exemption from E-filing. The statewide standardized mandatory use forms have been updated to reflect the change. 

The Safe Harbor Policy was also amended during the Supreme Court's November Term. The policy outlines information, services, and resources court personnel can share with court patrons without violating ethical rules or crossing the line into legal advice. The main reason for the recent amendment was to clearly detail what help clerks could provide to court patrons regarding e-filing. However, the entire policy was reorganized and some additional sections were added.

Of particular importance are sections (d)(5) and (d)(6), which outline the permissive services for circuit clerks, court staff, law librarians, and court volunteers to provide to court patrons regarding e-filing and includes:

(d) Permitted Services. To assist court patrons, circuit clerks, court staff, law librarians, and court volunteers—acting in a non-lawyer capacity on behalf of the court—may, as resources and expertise permit:

….

(5) Provide information about electronic filing (e-filing) including, but not limited to:
a. Explaining where to find and how to select an Electronic Filing Service Provider (EFSP);
b. Explaining how to register for an EFSP account including, but not limited to, how to set up an email to verify the EFSP account in the instance that the user does not have a working email address;
c. Explaining how to sign into the EFSP after creating an account or how to reset an account in the event that the user has forgotten the login information;
d. Explaining how to file in an existing case including, but not limited to, information about searching for an existing case by case number or party, creating a payment account, selecting a location, selecting a category, selecting a case type, entering party information, the format and size of the document to be filed, uploading documents to file, selecting a filing code, and differentiating between lead documents and attachments;
e. Explaining how to file into a new case including, but not limited to, information about creating a payment account, selecting a location, selecting a category, selecting a case type, entering party information, the format and size of the document to be filed, uploading documents to file, selecting a filing code, and differentiating between lead documents and attachments;
f. Explaining how a paper or electronic document can be converted to the required file type (PDF) through equipment available within the courthouse; and
g. Explaining why a filing was rejected.

(6) Inform court patrons of the process for obtaining an exemption from electronic filing due to a disability, literacy barrier, language barrier, lack of technology equipment, or other approved reasons by filing the approved certification form;

There are a number of existing materials, in a variety of formats, available to assist court patrons with e-filing. The Illinois Supreme Court Commission on Access to Justice has published a user manual series in English and Spanish entitled "E-Filing Guide for Self-Represented Litigants" which is broken into 10 different parts that walk the user through the e-filing process using Odyssey eFileIL. The Commission plans to continue to create additional materials as issues continue to be identified.

The published manuals are available digitally or by hard copy upon request to the Access to Justice Division of the AOIC at jroberts@illinoiscourts.gov. In addition to written manuals, there are also videos demonstrating some of the e-filing steps. The digital manuals and explanatory videos can be found on the Supreme Court's website here: http://www.illinoiscourts.gov/CivilJustice/Resources/Self-Represented_Litigants/self-represented.asp. Additionally, Illinois Legal Aid Online—a free online legal self-help website—has a dedicated e-filing self-help website, available here: https://www.illinoislegalaid.org/legal-information/e-filing-basics.