By Erin Borissov
Attorneys practicing in Indiana are well aware that Indiana courts and administrative agencies are moving to “mandatory” electronic filing. The Indiana Supreme Court’s e-filing project is rolling along, with e-filing now mandatory (except upon a petition showing good cause) for the appellate courts and more than 20 counties. More county courts are going “E” every month. By 2018, e-filing will be mandatory in all circuit courts in Indiana. The specific schedule is available at in.gov/judiciary/4273.htm. In addition, some administrative agencies such as the Indiana Utility Regulatory Commission are also moving to mandatory e-filing. See IURC RM-15-02.
As an attorney practicing in a major metropolitan area with ample access to high-speed internet, I welcome this transition. Many (probably most) attorneys have been exchanging documents and information electronically for many years. The world is going digital, and the ability to e-file court and agency documents is, to be frank, rather 2001. But would I welcome mandatory e-filing with such open arms if I practiced in a small town or rural area in Indiana, as many of our distinguished colleagues do?
Rural broadband access is a hot topic these days. At the national level, the Federal Communications Commission has made broadband access a priority. The FCC’s 2016 Broadband Progress Report notes “there continues to be a significant disparity of access to advanced telecommunications capability across America with more than 39 percent of Americans living in rural areas lacking access to advanced telecommunications capability, as compared to 4 percent of Americans living in urban areas. …” 2016 Broadband Progress Report at 3, GN Docket No. 15-191, Jan. 29, 2016. I represent a number of rural electric cooperatives who serve much of the rural territory in Indiana. The cooperatives and their members are acutely aware that significant portions of rural Indiana lack access to high-speed internet. For attorneys that live or practice in these areas, “mandatory” e-filing could present a challenge.
How much connectivity do we need for e-filing?
First things first: What exactly do we consider “broadband” and what level of connectivity is necessary for an attorney to e-file? Prior to 2015, the FCC defined “broadband” as connectivity that can provide 4 Mbps download/1 Mbps upload. In 2015, the FCC redefined the definition to require 25 Mbps download/3 Mpbs upload. The new definition reflects the shift in uses for internet such as streaming, gaming, and video conferencing and the huge increase in users’ data needs. Id.
As a non-techie, I wondered what these numbers mean in terms of e-filing court documents, so I sought answers from an industry expert. Robert Ramsey, vice president of business development at Indiana Fiber Network, explained that “the FCC’s previous definition of broadband would be sufficient” to upload a 30 MB file. The current file-size limit for e-filing varies by venue, but a good rule of thumb is 30 MB. Mr. Ramsey stated “if a person had this speed connectivity, they could transfer a 30MB file from the internet in less than 10 seconds and send it in less than a minute.” Mr. Ramsey identified copper DSL, coax cable, wireless and fiber as different methods for providing this level of connectivity. However, he noted that “copper DSL and wireless are very distance-sensitive and can only be deployed reliably for a couple of miles.”
And when file-size limits increase or become unlimited, what speed broadband will be necessary to reliably and efficiently upload and download files? Mr. Ramsey said the new FCC speeds “would suffice, but would consider them the minimum.” The challenge for attorneys practicing in small towns or in rural Indiana is that in general, copper DSL and wireless would not do. Mr. Ramsey explained “these speeds can only be obtained via coax cable or fiber.”
Who does this leave out?
Mr. Ramsey directed me to the Indiana Broadband Map, which provides a map showing different levels of broadband access in Indiana. (indianabroadbandmap.com) The site provides a disclaimer that it was last updated in October of 2014 because grant funding from the National Telecommunications and Information Administration ended. As of October 2014, there were many towns and a significant amount of rural territory in Indiana that did not have access to the current definition of broadband (25 Mbps download/3 Mbps upload). Attorneys in these areas may face e-filing challenges in the future (if not today) if file sizes and file types continue to expand and evolve.
Safe harbor for attorneys in internet row boats?
It is important to note that Trial Rule 86(D)(2) does allow an attorney or unrepresented litigant to file a petition for an exemption from the e-filing requirements, which will be granted for good cause. A petition must be filed in every pending case; there is no blanket exemption. However, e-filing regimes in Indiana administrative agencies may not all provide similar exemptions. For example, the current proposed rule under review at the IURC in RM-15-02 does not provide an exemption from mandatory e-filing requirements.
The journey forward
There is no question we are moving toward a business environment in which exchange of hard copy documents is the exception and not the norm, and it is reasonable that Indiana’s judicial and administrative bodies should move in that direction as well. It is also clear that one’s access to reliable and efficient broadband service will determine whether that transition is to be embraced or met with trepidation.•
• Erin Borissov is a partner in the law firm of Parr Richey Frandsen Patterson Kruse LLP with offices in Indianapolis and Lebanon. She advises utilities and business clients in the areas of utility regulatory law, electric cooperative law, easement and right-of-way law, commercial transactions, corporate governance and corporate compliance. The opinions expressed are those of the author.