Across the country, court systems are looking to build on the successes of the remote electronic technologies used to administer justice during the COVID-19 pandemic. The legal profession’s effort to resolve novel legal issues relating to virtual proceedings and electronic evidence — already a growing topic of interest before the pandemic struck — is picking up steam in many jurisdictions as courts and litigators seek to nail down the best of the legal profession’s justice system innovations during the pandemic.
In California, the Judicial Council’s Information Technology Advisory Committee has been busy working on many court rule and statutory revision proposals (PDF) intended to adapt state courts to the rapidly evolving world of virtual justice. The council is working on law-related proposals in the areas of information security, the use of vendors to store electronic evidence filed with the courts, video hearings and electronic evidence offered during video hearings, admissibility standards for digital evidence, and online dispute resolution processes.
The council’s work bore fruit recently when the council proposed a new court rule (PDF) specifically addressed to the subject of “lodged electronic exhibits,” which it describes as “an exhibit in electronic format that is not filed, but rather is electronically transmitted to or received by the court for temporary storage pending use at a trial or other evidentiary hearing.”
The drafters of the proposed new rule explained that an electronic exhibit could be something which exists only in electronic format— e.g., an email message or a deposition transcript— or an electronic copy of a tangible object such as a map. The proposed rule does not cover physical electronic storage devices.
A “lodged electronic exhibit” inhabits a legal netherworld somewhere between an exhibit admitted into evidence, and thus subject to public view, and an electronic exhibit merely filed with the court, which is protected from public view by laws on sealing and redacting documents filed during litigation. The proposed new rule would allow the court to receive electronic exhibits but not make them available for public view until they are admitted into evidence.
If an electronic document is not offered or admitted into evidence, the court clerk is required to delete it.
Specifically, the council is proposing a new Rule 2.901 of the California Rules of Court, which would read as follows:
Rule 2.901. Lodged electronic exhibits
A “lodged electronic exhibit” is an exhibit in electronic format that is not filed, but rather is electronically transmitted to or received by the court for temporary storage pending use at a trial or other evidentiary hearing.
(b) Access to lodged electronic exhibits.
(1) A lodged electronic exhibit may be accessible only by the parties and the court until it is admitted into evidence.
(2) If a lodged electronic exhibit is confidential by law or sealed by court order, it does not lose its confidential or sealed status by operation of this rule.
(c) Deletion of lodged electronic exhibit if not admitted into evidence.
Unless otherwise ordered by the court, if a lodged electronic exhibit is not admitted into evidence, the clerk must delete it after the hearing, proceeding, or trial for which it was submitted, and email or mail confirmation of such deletion must be sent to the submitting party.
According to committee materials accompanying the proposal, the drafters considered adding privacy protections to the information contained in lodged electronic exhibits. For example, Rule 1.201 requires filing attorneys to redact social security numbers, account numbers, birthdates, addresses, and phone numbers of parties, witnesses, and court personnel. The committee decided that including similar privacy protections for lodged electronic exhibits would be impractical.
The drafters of proposed Rule 2.901 are requesting public comment on several issues. Among them:
- Should the rule cover electronic evidence “offered into evidence” rather than “admitted into evidence”?
- Are there any types of lodged electronic exhibits that should not be deleted?
- Should the rule permit broader access to lodged exhibits, similar to Rule 2.515(b)’s access rules for remote access to electronic records available under Article 2?
The council also sought comment from the state’s court administrators. What are the anticipated implementation challenges? Would the court system realize cost savings as a result of the rule? Would the proposed rule require revisions to existing court management systems?
Proposed Rule 2.901 does not address the separate issue of handling an electronic exhibit that is offered — or materializes spontaneously, such as when attorneys hold a document up to their webcam—during the course of a remote proceeding. This information, which has not been admitted into evidence or “filed” in any traditional sense and is potentially subject to unlawful-to-share rules, could nevertheless be viewed or captured by the public watching remote proceedings. Issues surrounding the use of electronic exhibits in remote video proceedings will be the subject of future policy development work by the Judicial Council.
Public comments on proposed Rule 2.901 are due May 27.
Nationwide, there is very little uniformity in the rules governing the filing of electronic exhibits. The topic is something usually addressed, if at all, in local court rules.