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On the Entity Seal in Court Filings

From: Roger Winters
To: [email protected]
Date: Tue, 24 May 2005 16:58:00 -0000

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legalxml-courtfiling message

Subject: On the Entity Seal in Court Filings

From: "Winters, Roger" <[email protected]>
To: 'Nick Pope' <[email protected]>, [email protected], [email protected]
Date: Tue, 24 May 2005 09:57:57 -0700

I thank John Messing for his proposal, because the function of the "entity seal" has now been clarified for me. I believe that an "entity seal" (or similar tool) should not be made mandatory in Court Filing Blue. Here's why:

The tools that can provide technical security, ensure authenticity of what is filed, etc., are useful in the process of getting the filing into the Clerk's (Court's) hands (system). Once there, the filing is "authentic" or "valid" or "unchanged" because it is in the custody of the Clerk, not because a technical feature was included or procedure performed.

When a document is sent to "the Court" for inclusion in the record, it is actually sent to "the Clerk of the Court," who has a ministerial function and duty to receive and preserve the record, such as it is, for the duration of its retention. In a court of general jurisdiction, retention can be "indefinite," or "forever." Once the record is in the Clerk's hands (or system), it is the Clerk's duty to maintain it. It is not a duty that can be handed over to an "entity seal" to authenticate the document at some future date -- it is the Clerk of the Court who authenticates it based on having had custody of it.

In the event of a controversy over the authenticity of a filed document that is in the Clerk's custody, an "entity seal" would not settle the matter. It might be one item of evidence, but such a dispute will be resolved in the Court, based on evidence, laws, and testimony.

If one is suspicious that something on file with the Clerk has been tampered with, changed in some way, there is also a "SneakerNet" verification/validation method -- open the file and read the document!

I see a parallel between the "entity seal" of today and the "WORM drive" arguments some of us had a few years ago. It was said that a non-rewritable drive was essential to protect against any change in documents maintained electronically by "the Court" (meaning, of course, the Clerk).

It is usually good to look for an analogy in the handling of paper court filings -- we do not routinely add anything like an "entity seal" in a paper filing.

It is the duty of the Clerk to obey lawful orders to make changes in the court record, including changes in filed documents. Sometimes they must be modified, for example, by elimination of a certain name or reference wherever it appears in a document that, otherwise, is to remain part of the record. (Clerk's staff here, in the paper days, would scissor out such information carefully, leaving documents literally full of holes.) Some implementations (including King County's) modify every single electronic filing by affixing the Clerk's "FILED" stamp and related information onto the document, changing the bitmap or the PDF file when doing so.

Certifying that a copy was made from a document that is part of a Court case record is how the Clerk attests to having had custody and control over that record. The Clerk doesn't and can't certify the document contains any truths or that signatures were made by the right people. It is not a system where the possibility of error or fraud has to be eliminated on the way in - errors and acts of fraud are things that are discovered and brought to the attention of law enforcement and the Court for resolution.

ON THE OTHER HAND, the value of a tool like the "entity seal" for winning over the hearts and minds of technology-suspicious stakeholders should not be underestimated.

It may be advantageous for an implementer to use the "entity seal." Some Clerks may choose not to make any changes to filed documents, for example, linking the "FILED" stamp information to it or overlaying, but not embedding it. A Clerk might decide that any changes ordered by the Court will be made on an exact copy of the original filing, to be re-filed "on behalf of the Court" (in its own "new" entity seal) while eliminating or hiding the "original."

I do not believe that an "entity seal" (as I have come to understand it) should be a mandatory feature in Court Filing Blue. As an optional feature, it may offer several benefits when designed to support, not inhibit the Clerk's performance of his duties.

Regards,

Roger

Roger Winters

King County

Department of Judicial Administration

Continuing Legal Education (CLE) Coordinator

and

Programs and Projects Manager

516 Third Avenue, E-609 MS: KCC-JA-0609

Seattle, Washington 98104

V: (206) 296-7838 F: (206) 296-0906

[email protected]