E-Filing System Attacked, Defended on Appeal

ATLANTA (CN) - Class action attorneys told the Georgia Court of Appeals this week that a trial court ruling was wrong, "illegal and clearly unconstitutional," to grant Fulton County sovereign immunity from lawsuits over its mandatory electronic filing system through Lexis Nexis Courtlink.

The original complaint was filed in 2007 and re-filed several times. In it, plaintiffs accused Reed Elsevier and Lexis Nexis Courtlink of creating an unfair monopoly by forcing an e-filing system on the public and charging excessive fees for certain lawsuits filed in Fulton Superior and Fulton State Court.

The case is Best Jewelry Manufacturing Company Inc. vs. Fulton County Georgia and Reed Elsevier Inc. dba Lexis Nexis Courtlink.

The trial court denied plaintiffs' motion for reconsideration, found Fulton County entitled to sovereign immunity and granted summary judgment against plaintiffs.

It also ruled that state laws on pricing and collection of court fees do not apply to electronic filing; that the e-filing fees are separate from the mandated fees clerks charge litigants; that the defendants do not share e-filing fees; and that e-filing fees are permissible.

In opening remarks to the court, attorneys claimed that Fulton County is not entitled to sovereign immunity because Georgia O.C.G.A 15-6-77 satisfies the conditions for a waiver of the immunity.

"The e-filing system's implementation is illegal because it prohibits paper filing, charges enormous fees and charges fees that are not listed in O.C.G.A. 15-6-77," plaintiffs' attorney Irwin Stolz told the court.

The statute covers what fees can be collected by all Georgia superior courts, and the standard price list for filings and copies for complaints.

It includes the statement: "No fees, assessments, or other charges may be assessed or collected except as authorized in this Code section or some other general law expressly providing for same," O.C.G.A 15-6-77 (k).

Filing documents through Fulton County State and Superior Courts using the LexisNexis File & Serve system costs from $7 to $11 apiece, for mandatory e-filing cases imposed by orders from Fulton County State and Superior Courts and authorized by Fulton County.

Judge Steven Dillard asked: "Where is the explicit waiver in the this statute?"

Plaintiffs' attorney Shuli Green replied: "There is no waiver required. You don't have to have 'magic words' to make the waiver implicit."

Judge Carla Wong McMillian asked: "Well, isn't this similar to when you purchase concert tickets from Ticketmaster and you are charged a convenience fee along with the price of the tickets?"

Green responded, "This is not a convenience fee; this is a mandatory scheme where certain cases have to be e-filed.

"There is no alternative to File & Serve offered and the public access terminals are so burdensome. Lexis can charge whatever they want, basically, or you can drive four hours to the courthouse, if you are not in Fulton County and live somewhere else but have to file a case here."

Attorneys for Reed Elsevier and Fulton County argued that O.C.G.A. 15-6-77 is not implicit as it relates to sovereign immunity.

"Clearly, the statute does not waive sovereign immunity and the language is not clear in the statute as well," said Fulton County attorney Kristen Williams.

"Just because the appellant doesn't like it doesn't mean it is illegal," Williams said.

Judge Dillard asked: "Doesn't this system put a burden on lawyers outside of Fulton County? Doesn't it make this cost prohibitive, if you have large documents?," Williams replied: "The court does not have the jurisdiction on cases with 1,000 pages or more, and if you cannot use e-file, you can still send a courier if needed."

Reed Elsevier attorney Leland Kynes said the system is neither illegal nor unconstitutional, and challenged plaintiffs' assertion that the fees constitute a waiver of immunity.

"Plaintiff has no claim because it is the county's policy decision to let the vendor charge fees. The usage fees for the license for the software is separate from filing fees for the e-filing process," Kynes said.

Part of the oral argument focused on the trial court's application of the principle of "acquired immunity," relying on case law cited in Abercrombie v. Ledbetter-Johnson Co., a Georgia Court of Appeals case from 1967.

In Abercrombie, the Court of Appeals ruled that a contractor performing a public works project under a state contract cannot be held liable for damage to private property, unless the contractor has been negligent or willfully caused harm.

"File & Serve is not a public works project," Green said. "Defendants have committed willful torts."

In its oral argument and its brief , plaintiffs argued that the trial court's reliance on Abercrombie is misplaced, and that the facts in the present case can be distinguished from Abercrombie in several ways, primarily in that Fulton County's e-filing system is not a "public works" project, and that there was no damage to private property.

In its brief , LexisNexis claims that Abercrombie does apply, that "the rationale underlying the doctrine applies with equal force in a more modern contract for public works like the one in this case."

Kynes said: "There is no willful tort; There is no intent to injure. Any money paid to Lexis was made through the agreement with Fulton County."

Plaintiffs disagreed, citing C.W. Matthews Contracting Company v. Wells, a 1978 Court of Appeals ruling, stating that the "Abercrombie rule does not apply where trespassing defendant is not contractor engaged in public work."

The plaintiffs seek repayment and restitution for overpayment of court fees.

They are represented by Steven J. Newton, Shuli Green and Irwin Stolz.

Defendants are represented by Fulton County attorneys Kristen Williams, Kaye Woodard Burrell and Larry Ramsey.

Reed Elsevier and Lexis Nexis are represented by Leland Kynes.

A ruling is expected by the end of the year.

The Georgia Court of Appeals is the last step below the state supreme court.

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