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Bar News - July 27, 2001 Tobacco Litigators Try Electronic Filing By: Dan Wise ALTHOUGH THE STATE courts’ computer system is mired in the mid-‘80s, using DOS-based software and pre-Windows computers, the judge and lawyers in a series of tobacco tort cases in NH Superior Court are using the latest innovations, electronically filing most of their motions and pleadings over the Internet – and it isn’t costing the state a cent. The parties split the approximately $10,000 paid to Philadelphia-based Verilaw to develop the database. Each party also pays a mere $10 per filing – and the size of the document does not matter. Within minutes, each of the 21 attorneys or parties in the case has notice of the latest filing. The filings are also immediately available for viewing by the public at www. nhtobacco.verilaw.com. Meanwhile, the US Bankruptcy Court of New Hampshire is continuing to implement a national electronic filing system that is expected to come online sometime next year. The US District Court in New Hampshire would eventually follow. Federal court officials in other jurisdictions have subtly emphasized that once in place, electronic filing becomes not an option, but the norm, although they hesitate to use the word "mandatory." (See accompanying article on page 12.) The state has authorized $3.5 million in its latest capital budget for new software and equipment for the courts. However, the court system’s operating budget request was cut by $9 million. Article on page 19. The tobacco litigation cases, consolidated from different filings by four plaintiffs against a number of cigarette manufacturers, allege that smoking cigarettes led to the untimely deaths of the plaintiffs. (The cases are: Donna M. King (executor of estate of Harry King) v. Philip Morris, et al. (99-C-0856); Julien Longden, et al. v. Philip Morris (00-C-0462), both filed at Hillsborough County Superior Court North; Richard French, et al v. Philip Morris, et al (00-C-0392) and Joan Howard, et al. v. Philip Morris, et al. (00-C-0308 both filed at Merrimack County Superior Court.) The cases are being presided over by Superior Court Associate Justice Larry M. Smukler, who encouraged the parties to consider electronic filing for what promised to be a document-heavy case. Smukler, whose own experience with document-intensive cases included representing the state of New Hampshire while at the AG’s office during the Public Service of New Hampshire bankruptcy in the early 1990s and as chair of the Public Utilities Commission for three years, became aware of Verilaw’s work on electronic filing systems in several other courts. Charles Douglas, lead attorney for the plaintiffs in the tobacco case, and Edward Kaplan, lead local attorney for the tobacco company defendants, saw the practical and economic advantages of the idea, although it took a number of months to work out all of the details. A Web site accessible only to the parties went live in the spring and the publicly accessible Web site (www.nhtobacco.verilaw.com) became available at the end of June, once all of the filings in the case – dating back more than two years – were posted. "It makes filing a lot easier and less complicated, especially with multiple parties involved," said Douglas. Once all of the documents in a pleading are collected into an electronic file, a lawyer calls up the Internet address, locates the tobacco litigation database and enters his or her unique user name and password. The user enters identifying information about the document, clicks the "send" button and the document is on its way to the database. To maintain an official hard-copy record, John Safford, the clerk assigned to the case, prints out a copy for the courthouse files. Meanwhile every party with an official connection to the case receives an e-mail notifying them of a new filing in the tobacco litigation – within about 10 minutes, according to Smukler. Under the judge’s ground rules, documents filed up to one minute before midnight on the due date are considered timely. Addressing one concern raised about electronic filing, Smukler said original or digital signatures aren’t being required to make filings. The attorneys’ use of their unique passwords is considered proof of identity, Smukler said. "It is no different from someone presenting himself at the courthouse with a filing," he said. Users can access documents on the Web site several different ways: by document number, scrolling through a menu listing each document or by using its search engine. Kaplan said that the database is proving very useful in managing the case. "If I’m on a conference call and someone makes reference to a document, I can access it very easily," he said. Some of the defendants were concerned about the database being publicly available. Kaplan said the ease of access could generate additional claims. "I just tried a seat-belt claim and if there were a way to use a search vehicle to find other such claims around the country, that would raise this kind of litigation to a new level," he said. Douglas applauded the effort made to develop a public database. "It now enables people from around the country to follow the case without calling the clerk’s office to find out its status or to obtain documents. I am pleased the judge was willing to consider public access," he said.
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