08-10-19 Computers & the Courts - Sustain - CMS of the Los Angeles Superior Court - Registers of...

8/9/2019 08-10-19 Computers & the Courts - Sustain - CMS of the Los Angeles Superior Court - Registers of Action

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Rapid Communication

CASE MANAGEMENT SYSTEMS (CMSS) AND THE COURTS:

LONG-TERM CALIFORNIA PUBLIC POLICY CONCERNS, AND ACUTE

PROBLEMS IN THE LOS ANGELES SUPERIOR COURT.

P a r t I I R e g i s t e r s o f A c t i o n s a n d I n d e x e s o f A l l C a s e s C r i t i c a l

S a f e g u a r d s t h a t a r e Pu b li c R e c o r d s

Joseph Zernik

This report presents findings, based on limited access to Sustain- Los Angeles

Countys Superior Court Case Management System (CMS), the California Court of

Appeals Case Management System, and the U.S. Circuit Courts Case Management

System (Pacer). Such systems are the governing system in the courts today, since the

key documents in court administration, in court review, and in safeguard of the conduct

of the courts Registers of Actions, and Indexes of All Cases, are nowhere on paper any

longer.

We hold that these instruments are critical for the integrity of our democratic system,

and that traditions that were developed over hundreds of years to ensure the safeguard

of the system were hastily discarded in the transition to digital court management,

with no public scrutiny.

Our study is based on limited access to these system. Moreover, it is compromised by

the bias introduced by one of the authors, who is an interested party. However, he

obtained unusual insights into these systems that are still of critical significance in

drawing attention to systems that have so far escaped public scrutiny. We could not

find a single reference in the computers/public policy area to this question.

Digitally signed by

Joseph Zernik

DN: cn=Joseph

Zernik,

email=jz12345@eart

hlink.net, c=US

Date: 2008.10.19

11:05:30 -07'00'


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When it comes to the Federal Court, Pacer clearly holds a Docket or Register of

Actions each case. The system can be seen as a model it is transparent easily

accessible, and provides additional valuable reports such as the Related Transactions.

Pacer allows the litigants who are counsels to post their papers directly online. That

feature alone, is held by this writer as a unique guarantee of justice, and the

establishing of new rights and freedoms in conjunction with the transition to digital

technology, when other courts acted otherwise. The significance of Pacer in

establishing Federal Courts as a standard will surely will be appreciated with the

passage of time.The key

Sustain is the governing system in that court today, since its introduction was

associated with the elimination of the paper Registers of Actions and Indexes of All

Cases. CMSs in most counties and most states of the U.S.A. today assume similar

central position in the Court House, but CMSs somehow managed to largely escape

public scrutiny and public awareness. In the case of Sustain, the public at large, as well

as litigants and counsels have minimal, if any access to the system. Therefore, the

current report presents unique collection of records. The current report focuses on

Sustains recording of dates and signatures, particularly dates and signatures as

pertaining to Minute Orders and to the Certificate of Mailing by the Clerk/Notice of

Entry of Order, which is a part of the Minute Order which carries authentication. The

processing of Minute Orders is seemingly one of the most routine and mundane court

procedures.

Our results indicate that the records of Minute Orders found in the paper Court File are

routinely back-dated, misstating the date that the orders were in fact issued. It may

also be deemed, upon legal review, as misidentification and misrepresentation of legal

records. Neither the paper Court File, nor Sustain, the computerized records, retain


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adequate records of Minute Orders and Certificates of their Mailing. It appears that the

widest variation from standard procedures appear in proceedings of unusual nature,

but that correlation needs to be better documented. It appears that many of these

deficiencies could not exist if features supporting them were not provided in the

software. The availability of such features or routine use of such features in a Case

Management System is unreasonable, and it may require action for the safeguard of

Due Process. It remains to be found if such features were originally built into the

system, or system integrity deteriorated over the years in the absence of safeguards for

its integrity.

New technological instruments and new respective legal procedures should be

developed and implemented in order to restore public confidence in large computer

systems that are pervasive in large corporation or in the public service today.

1) Records Analyzed

a . M i n u t e Or d e r s w r i t t en b y a J u d g e , Pr o c e s s ed b y a Cle r k ( F ig 2 a ,

2 b ) , a r e a n i n t e g r a l p a r t o f Tr i a l Co u r t L i t i g a t i o n R e co r d s , a n d a r e

i ss u e d t h r o u g h S u s t a in .

Minute Orders must by law be issued after each proceeding, whether in open court or

in chambers, on the very same day (i.e. post stamped at most one business day later).

Minute Orders are an integral part of the permanent records of the litigation Trial

Court Litigation Records.

Any action by the Court, and any paper added to Court File must be noticed to the

parties. In the case of Minute Orders, the mailing of the Minute Orders to parties

satisfies the requirement of Service of Notice a key concept in Due Process. Absent

mailing of the Minute Orders or comparable notice judges could act secretly in


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chambers, without the knowledge of the parties. Certificate of mailing is also part of

the permanent record.

The court is required to keep such in permanent record for a specific number of years as

Public Records that are available for viewing by the public at large. That requirement

is critical for transparency of the justice system - a critical safeguard for its integrity,

and is one of the United States Constitutional rights established in the Amendments to

the Constitution (5th and 14th).

b. Notice must be served on parties when Minute Orders ar e issued, andProof of Service must be added to the permanent record bothexecuted by the Clerk, and im plemen ted in Sustain.

Whether Notice is served on parties by a judge, or by one party filing papers in court on

the other parties, the service (typically by mail) must be certified by a person other than

the party, or in the case of the court other than the judge. Such certification satisfies

the requirement for Proof of Service.

Proof of Service, or certifying the mailing in case of service of notice of a Minute Order

or any other order by a Judge, is done by the Clerk. The requirement for Clerks

certification of mailing, and similarly the requirement for Clerks certification on any

paper by a judge or by a party that is entered into the Court File, is an integral part of

the safeguards of the integrity of the Court Files and the justice system. It also

generated a system of checks and balances between the judicial and the ministerial

(clerical) arms of the courts.

c . M i n u t e Or d e r s a r e P a r t o f L i t ig a t i o n R e co r d s i n p a p e r Co u r t Fi le

an d a l so in S u s ta in e lec t ron ic Cou r t F il e (Fig 2a , 2b) .

Minute Orders become part of Litigation Records in LASC both the paper Court File

and the electronic Court File i.e., Sustain. A copy of the Minute Order, signed by the


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Clerk (see below) is entered into the paper court file, and the Minute Order itself is also

stored with other litigation records in Sustain, and copies can be printed by the clerks

office upon demand.

2) Analysis Methods

a . Th i s s t u d y i s b i a s e d

The secondary author is personally involved in this case, and therefore it was evident

from the start that it would not be reasonable if he conducted the analysis of the system

alone. However, the unique combination of records and finding of facts was also the

outcome of the coincidental combination of skills and events that came together in this

case, presenting this unusual opportunity to present evidence to the computer science

community and the public at large. Therefore, we felt that it was our responsibility to

try to present the data for peer-reviewed publication, albeit, with minimal claims

relative to the findings.

b . I d e n t i f ic a t io n o f D a t a V a r i a t i o n s a m o n g t h e S o u r c e s

The comparison of the data from the different sources reveals numerous instances

where data varied in a meaningful way between the Minute Orders from the various

sources. Even in the few examples shown below, one can see data variations that

would clearly be sufficient to define the system as inappropriate for the purpose it was

presumably intended easily accessible by the Court, long term, secure and accurate

record of litigation data.

c. N o Le g a l A n a l y s i s f o r Co m p l ia n c e w a s U n d e r t a k e n

No attempt was made to perform legal analysis and formulate opinions regarding

compliance with the law. However, some of the results strongly indicate that there is a

need for legal analysis of compliance in this system.


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3) Results

a . M i n u t e Or d e r s a s p a r t o f t h e r ec or d s i n S u s t a i n N o A u t h e n t i ca t e d

Record s S to red (Fig 2b , 3b , 4b , 7b) .

In LASC, Minute Orders are issued through Sustain. The text that was entered by the

Judge into the Minute Order is stored in memory as part of the final copy of the Minute

Order. A permanent record of the Minute Orders that were mailed out to parties in the

case is held in Sustain, and can be printed by the Clerks office upon demand.

Separately, the text that was entered by the judge is typically also entered as part of the

description of the proceeding (Events) of the day - in another Sustain record - Case

History (Fig 1 a). At times, the Clerks Office in LASC provided copies of Case

History report from Sustain is response to requests for the Register of Actions the

permanent record that is the concise formal definitive representation of a court action

(at times also named Docket).

All such records are Trial Court Litigation Records. The clerks of the court are

charged with their safeguard. They are also Public Records, and they must be readily

available for inspection and copying by the public at large.

b . I m p l e m e n t a t i o n o f Cle r k s Ce r t i fi ca t e o f M a i li n g i n S u s t a i n .

In order to complete the Minute Order mailing procedure in Sustain, a Clerk has to login as well, and issue a Certificate of Mailing by Clerk (the Proof of Service). The text of

the standard mailing certificate is added at the end of the text of the Minute Order that

was already entered by the judge. Copies are printed mail-ready for window envelopes

- parties names, counsels of record, and mailing addresses are already stored in the

system.


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c . Au th en t i ca t ion o f t h e Clerk s Cer t i f ica t e o f M ai l in g an d th e Record in

S u s t a i n

On the paper copies that are printed, space is provided for a wet signature of the

clerk. Paper copies of Minute Orders from paper Court File, or such that were received

by mail by a party, bear the hand-signature of the Clerk.

However, when copies of Minute Orders are printed out from Sustain by the Clerks

Office at a later time, they would still include no hand signature or image of the hand

signature of the Clerk. Therefore, it is concluded that there is no permanent, complete

record of the authenticated Minute Orders in Sustain.

d . M i n u t e Or d e r s a s p a r t o f t h e r e co r d s i n p a p e r Co u r t Fi le ( Fi g 2 a )

After mailing, the Clerk also enters a copy of the Minute Order printed by Sustain

bearing his/her wet signature on the Certificate of Mailing - into the paper Court File.

Therefore, one could conclude that the system was designed with the notion that the

paper Court File would be the definitive record of the litigation. However, the Register

of Action that used to be a paper record prior to the introduction of Sustain was

eliminated. One may then conclude that the intention was that the definitive records

would include the paper Court File and the electronic Register of Actions i.e. Case

History report in Sustain.

All papers entered into in the paper Court File bear a stamp certifying the filing and

entry, and a hand signature by a Clerk:

FILEDLOS ANGELES SUPERIOR COURT

MA R 28, 2007JOHN CLARKE, CLERK

BY VIVIAN JAIME, DEPUTY


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The date in the stamp above is an impression of a pre-set stamp, and the signature is a

wet hand-signature of the clerk named under the signature line..

However, none of the copies of the Minute Orders derived from the paper Court File

shown here (Fig 2a , 3a, 4a , 7a ), or any of the others that were inspected bears the

FILED stamp like the rest of the records in the paper Court File. The reason may be

that the Clerks Certificate of Mailing by Clerk includes language that may substitute for

the FILED stamp and Clerks signature. In fact even the title states: No t ice o f

E n t r y o f O r d e r .

CLERK S CERTIFICATE OF MAILING/NOTICE OF ENTRY OF ORDER

I, the below named Executive Officer/Clerk of theabove-entitled court, do hereby certify that I am nota party to the cause herein, and that this date Iserved Notice of Entry of the above minute order of11-1-05 upon each party or counsel named below bydepositing in the United States mail at the courthousein Santa Monica, California, one copy of the original

entered herein in a separate sealed envelopefor each, addressed as shown below, with the postagefully prepaid.

Date:John A. Clarke, Executive Officer/Clerk

By: ___________________T. McDonald

JAY R. STEIN1801 Century Park EastSuite 2400Los Angeles California, 90067-2326

However, whereas the language used above may be sufficient for a truthful certificate of

mailing, it is not adequate or truthful for a Notice of Entry of Order. This certificate

states:

I s e r ved No t i ce o f E n t r y o f t h e a b o ve m i n u t e o r d er o f 11-1-0 5 u p o n e a ch p a r t y o r c ou n s e l n a m e d b e lo w


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Named below in this case was only one party, out of two. This is not an unusual finding

in this case. While one party never got notice, other parties did receive notice from the

court. There were exceptions for example the July 12, 2007 Minute Order, where a

judge certified mailing of own order, and mailed it only to one party again, but the one

party that was normally excluded from notice (Fig 6).

California Rules of Cour t state:

Chapter 3. Service and Filing

Rule 1.21. Service

a) Service on a party or attorney

Whenever a document is required to be served on a party, the service must

be made on the partys attorney if the party is represented.

(Subd (a) amended effective January 1, 2007.)

(b) Serve and file

As used in these rules, unless a statute or rule provides for a differentmethod for filing or service, a requirement to serve and file a document

means that a copy of the document must be served on the attorney for each

party separately represented, on each self-represented party, and on any

other person or entity when required by statute, rule, or court order, and thatthe document and a proof of service of the document must be filed with the

court.

(Subd (b) amended effective January 1, 2007.)

(c) Proof of service

As used in these rules, proof of service means a declaration stating that

service has been made as provided in (a) and (b). If the proof of servicenames attorneys for separately represented parties, it must also state which

party or parties each of the attorneys served is representing.

(Subd (c) adopted effective January 1, 2007.)

Rule 1.21 amended effective January 1, 2007; adopted effective January 1,

2007.

The Rule is clear each party - not each party in an exclusive list made up at will.

And it is explicit in the requirement to file the Proof s of Service with the court as well.

Therefore, the Minute Orders produced through Sustain are inadequate. The system

deliberately had the Defendant not entered, and therefore, his name typically never

appeared in the mailing list. Fig 1a opening pages of Case History in Sustain, was

printed out on Aug 1, 2007, as noted in the footer. At the top of page 1, the header

provides space for Plaintiff(s) and Defendant(s) names, counsels names, address and


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phone number. Of four parties listed in this case by Aug 1, 2007, only one is listed. The

three unlisted parties are still unlisted in a printout date April 30, 2008. Therefore,

Sustain, a system that was presumably designed to implement the law and assist in the

administration of justice, has become and instrument for abuse of Due Process rights of

litigants.

Recording in Sustain of documents that are incorporated into the Court File is through

a Document Filed notation. For each paper document filed in Court File, there is

matching data entry in Sustain, e.g.:

08/09/07 Docum ent Fi led MEMOOrderCourtGRANTING SUMMARY JUDGMENT INFAVOR OF PLAINTIFF NIVIE SAMAAN

However, none of the Minute Orders, generated through Sustain, then entered into the

paper Court File, is recorded in Sustain as a paper document that was incorporated into

the paper court file.

Therefore, if Case History report in Sustain is serving as the Register of Actions, it is

missing any adequate record of any of the Minute Orders - significant part of Litigation

Records, and the Minute Orders are never stamped as FILED into the paper Court

File either.

e . M i n u t e O r d e r s - t im e s t a m p s

i) Paper Court File (Fig 2a , 3a , 4a , 7a) : Two notations of date appear on

each and every page of a Minute Order. The first is at the top left corner, and is marked

as in the following example:

DATE: 10/03/07

The second date notation appears in a box at the lower right corner, for example:

MINUTES ENTERED

09/10/07


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COUNTY CLERK

The latter date notation, associated with the words entered, and county clerk

resembles to a degree the stamp FILED, described above, which also includes the

date. However, the box in the lower right corner of each page of the Minute Order

includes no signature. Therefore, it could neither serve for authentication of the filing

or entering of the record into the Court File, nor for the date of such action.

ii. Electronic Court File (Fig 2b , 3b, 4b , 7b)

The same format of double date notation at upper left and lower right corners of each

page is also found in all copies of the Minute Orders derived from the permanent record

in Sustain.

The text of the Minute Order is most times also recorded under Event in the Case

History report in Sustain, but it does not appear there as an explicit order, and there is

no authenticated recording there of the date of mailing or entry into the Court File

either.(Fig 1 a , p 3-4 ).

f . E lec t ron ic Cou r t Fi le - Case Hi s tor y Rep or t i n Su s ta in

The first few page of the report are copied in Fig 1a. This report was provided by the

Clerks Office in response to a request for Register of Action. The Court at times

also described this report as the Docket. But other times, the Court claimed that the

Case Summ ary report (Fig 1c), which is part of the online, freely accessible

Courtnet system is the Docket. However, disclaimers (Fig 1d) that are posted by the

Court itself on the web warn against the use of that document, and declare that it is not

an official court document.

We analyzed the printout of a Case H i s tory report of about 200 pages, which was

made available from one single case (SC087400), since the LASC severely limits public

access to Sustain data, held by the court as p r i v i le g e d f o r t h e Co u r t o n l y .


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Data in the report were compared with photocopies of the Minute Orders:

i. As entered and retained in the paper Court File of the litigation, and/or

ii. As seen in batch printout at purchased from the Clerks office, and

iii. Minute Orders received by a party by mail. Only few Minute Orders were

indeed receive by mail in this case. In many of the Minute Orders there is a

note: Notice waived, no Certificate of Mailing by the Clerk appears in

such Minute Orders, and no copies were received by mail by a party.

Anecdotal information from other cases indicates that such situation is notuncommon at the LASC.

g . V a r i a t io n s i n D a t e n o t a t i o n s b e t w e en M in u t e Or d e r s fr o m p a p e r

Co u r t F ile a n d a s p r i n t e d f r o m S u s t a i n .

i. The Date Minute Orders were Entered is almost without exception

later in copies originating from Sustain compared to date noted in

copies incorporated into the paper Court File (Fi g 2 a v s 2 b , 7a v s

7b , 8 a v s 8 b ).

Examination of the dates notations in copies of Minute Orders originating from the

paper Court File, reveals that in all cases with no exceptions, the date listed as date

minutes entered in the box at the lower right corner of the Minute Order is identical

with the date of the proceedings listed at top left. And the same date appears again, a

third time in the Clerks Certification of Mailing by the Clerk, as the date of mailing, and

a fourth time, as part of the authentication of the Clerks Certification of Mailing. Such

records may generate the impression of perfect compliance with the law all Minute

Orders are produced on same date as the hearing, mailed out on the same date, and

filed in the paper Court File on the same date.


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However, the picture is entirely different upon examination of Minute Orders derived

from batch printouts from Sustain. In such Minute Orders, there is hardly ever

unanimity between the date listed at top left and the date listed at bottom right- the

date listed as date minutes were entered is always a later date, and it can be as much as

almost 3 months later than the date listed as date minutes entered in the copy of the

Minute Order that is incorporated into the paper Court File.

The most plausible explanation for this variance is that the date in the batch printoutsis the date of the Audit File or true date of entry, whereas the date on the printout of

the Minute Order that is incorporated into the court file is simply user-defined. This

explanation also explains the great reluctance of the Court to mail out any Minute

Orders, since the postal stamp will provide evidence for the variance.

Indeed, in one of the cases when the Minute Order was mailed out (Fig 8, a, b, c), the

records show the following:

Minute Order from paper Court File (Fig 8 a )

Copy of the Minute Order derived from the paper Court File lists Date of Proceeding:

08/21/07, minutes entered 08/21/07, date of service by mail: 08/21/07, and date of

Clerks Certificate of mailing: 08/21/07, with wet hand signature of the Clerk.

Minute Order mailed to Party(Fig 8 b )

Copy of the Minute Order received by mail by party lists exactly the same data for dates:

date of proceeding: 08/21/07, minutes entered 08/21/07, date of service by mail:

08/21/07, and date of clerks certificate of mailing: 08/21/07, with wet hand

signature of the Clerk.


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Postal Stamp on Envelope in which Minute Order was mailed (Fig 8 c)

The postal stamp on the Minute Order shows a date of 08/28/07.

Minute Order printed later from Sustain (Fig 8 d )

Date of proceeding: 08/21/07, date of service by mail: 08/21/07, and date of clerks

certificate of mailing: 08/21/07. This copy bears no wet hand signature of the Clerk,

and on page 3, the date in the box for Minutes Entered is 8/28/07.

Therefore, one may reasonably conclude that already at the time of data entry, the useris establishing double records with two very different values under the field of Minutes

Entered.

Needless to say, dates of filing and entry of documents are critical in any litigation, and

therefore deliberately generating incorrect records should not be allowed, and should

not be acceptable in programming for the Court. Lack of Notice, or delayed notice is

always detrimental to party in litigation. However, in some of the instances listed in

the figures, the harm is greater, since the number of days allowed to elapse between the

date the notice is given and the date of appeal is only 10 days, therefore, failure to issue

the Minute Order on time could cause irreparable harm to a party.

ii. Minutes Entered date in Sustain, but not in paper Court File mayassume invalid values of 00/00/00 or 33/33/33, therefore

invalidating the record. (Fig 3a v s 3b , Fig 4a v s 4b )

We believe that any Minute Order that shows a date of entry such as 0 0 / 0 0 / 0 0 or

3 3 / 3 3 / 3 3 is an invalid court record, for the simple reason that it has an invalid date of

entry. In addition, one may notice that on page 1 of Case History (Fig 1a ) at the upper

right corner, it states clearly regarding the case as a whole

# Children :

Filed : 10/25/05


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Age : 645Disposed : 00/00/00

It is not clear if it must be entered at the time of issuing the Minute Order, or at a later

time. But the data shows that the time between entry and invalidations was as short as

less than a week in one case.

Obviously, parties in a litigation must be informed if the records were changed in such

drastic way. There is no evidence of notice of the invalidations, neither is there any

evidence of an attempt to notice the invalidation.

iii. Back-dating of visible records, and invisible to the public recordingof the true dates, are common throughout the System (Fig 1a v s1b )

Fig 1a shows the opening pages of Case History in Sustain. That page include some

unusual notes entered as Docum ent Filed listings. For example, in litigation in

Trial Court, the term or party designation R e a l P a r t y i n I n t e r e s t is hardly ever

used. But the note on page 1 (Box added) states:

07/24/04 Docum en t Fi led OppositionReal Parties in Interest( BY COUNTRYW IDE HOME LOANS)

As noted above, the same page, at the upper right corner provides the date complaint

was filed in this case 10/25/05. Therefore, this note is listed at a date that is prior to

the creation of this file in Sustain. As such, this listing shows a failure in the logic of

the programming.

Moreover, for each and every entry in this program there is a matching Aud it File

including the login time stamp and User ID respective to that data entry. Such data is


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never shared with the public. Fig 1b is the Audit File data associated with this peculiar

listing:

On page 1 at the bottom of the page the listing appears of the note copied above.

On page 2 at the top of the page the end line of that note.

On page 3 in the middle of the page Audit File data:

AUDITDate Time Function User ID User Name7/24/07 8:36am Add 6815 Jaim e, Vivian

Obviously, the date when the note was entered was 7/24/07, and the date of 7/24/04

was a user defined date. It is likely that the same is true for the dates as seen on the

Minute Orders, that the date shown in printouts that were incorporated into the paper

file was the user defined date, and the date that was recorded always on the last page of

the Minute Order, in the Minutes Entered box, is the Audit File data for that entry.

iv. Back-dating allowed entering of Minute Order at a Time that the

User should have been without Authority to Enter Data in that File(Fig 7 a , b ).

Fig 7a, b show Minute Order of Sept 10, 2007. That Minute Order in Court File notes

Minutes Entered 09/10/07. The Minute Order from Sustain notes: Minutes Entered

09/11/07. However, the judge in this case was disqualified on Sept 10, 2007.

Therefore, the judge had no authority to enter that data file on Sept 11, 2007.

Unfortunately, that failure of the CMS to establish authorities properly allowed entering

of a false and deliberately misleading data in this case. The hearing that is recorded

never took place, as demonstrated by transcript of the same date.

It is not clear to what degree the system defines authorities clearly enough, since there

are several other instances of posting that would have been blocked had authorities

been defined adequately.


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v. Variations in the Wording among Records of Same Order (Fig 5 a ,b, c)

The July 6, 2007 Minute Order includes some variations in wording that may initially

look like an innocent error to the nave reader. In Sustains Case History report,

which is hardly ever seen by litigants or counsels, the following note was added at the

end of that Minute Order (2nd page in the figure, page 58 of Case History):

P r o ce e d i n g s n o t r e c o r d e d

We take this note at face value that the proceeding was off the record. There are

additional findings relative to this proceeding that support that reading of the text. That

proceeding was conducted in a manner that was extremely unlikely for any on the

record proceeding. The writings left from this proceeding, as well as the proceeding of

July 23, 2007, which was its sequel, appear to have been intentionally ambiguated.

There is no evidence that any party was notified in advance of the intention to conduct

proceedings off the record on that date. There is no evidence that parties were notified

after the fact that proceedings were off the record either. Moreover, there is no

evidence that any attempt was made to notify parties of the unusual nature of the

proceedings either. Needless to say, most reasonable parties would avoid participation

in any proceedings that are off the record.

vi. Variations in the Wording of the Standard Certification of Mailing(Fig 9a,b)

The Minute Order of July 12, 2007 is unusual, since it presents an improvised

Certificate of Mailing by a Judge, albeit, unauthenticated. In contrast with other errors,

which could be ascribed to lower level staff errors, it is unlikely that this record was

generated by staff, albeit it needs to be examined in more detail. In addition this

record is not the kind that could be generated through omission or simple neglect. First

the normal Clerks Certificate of Mailing had to be eliminated, and then, a new

certificate had to be composed. Furthermore, there had to be a reason to go through

such effort.


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Fig 9 b presents the Minute Order as seen in the permanent record in Sustain, where it

is dated July 23, 2007, or 11 days after the date of the proceeding, which in this case

was disqualification of a judge therefore the time of mailing was critical. A judge

who does not serve a response within 10 days is disqualified.

The unusual nature of the proceeding may also be related to the fact that the Clerk did

not sign this particular record, since the law ascribes to the Clerk a particular function

in cases like this (California Code of Civil Procedure 170.3). It is possible that the clerk

refused to sign this particular certificate.The paper file fails to present any copy of this particular minute Order, and Partys

records show no Minute Order like this particular one was received by mail either.

vii. Records missing Clerks Certificate of Mailing by present in paperCourt File

Many of the Minute Orders present in the paper court file in this case are missing the

Clerks Certificate of Mailing. Indeed they are missing altogether from the partys

record. Therefore, a reasonable conclusion is that indeed they were never mailed out in

the first place.

When asking attorneys practicing in Los Angeles, it turns out that this is indeed the

local custom. The Los Angeles Superior Court does not mail out the Minute Orders to

the counsels. Instead, the requirement is waived on a regular basis. Why would any

counsel in his right mind waive such right? And why would a court of law establish it as

a local custom not to mail out its minute orders?

viii. Records missing altogether from the paper Court File


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h . Co r r e l a t io n s b e t w e e n t h e N a t u r e o f t h e Pr o c e ed i n g s a n d V a r i a t i o n s

in D a ta A m o n g S o u r c es

The data shown above are not sufficient to demonstrate conclusively the assertion that the

more unusual the nature of the proceeding, the more likely it was that the records would

show variations in dates or in wording among sources. Most of the examples listed in the

figures, are associated with procedures that are not the most common in litigation. For

example the July 6, 2007 record, where there is a variation in wording between the Minute

Order and Case History, and the note: Proceedings not Recordedadded in Case History.

That proceeding was an ex parte procedure, scheduled at an irregular time, for the purpose

of setting a gag order on an individual at the request of a large corporation.

Ascribing motivations would require a much more thorough study of the system.

We may add, that the findings presented here are just a very small selection that is focusing

almost entirely on the issue of determination of dates, since it was believed to be the easiest

finding to present, and for readers to understand. Most people have a sense that back-dating

documents is inherently wrong, and back-dating court documents is not something that

sounds like a sound practice in a court of Justice.

But the findings of the analysis of the data as a whole strongly suggests that many more

proceedings in this case were of the type that the judiciary considered off the record, but

never notified the parties of that fact. Again, this type of data is more complex in nature,

and it was excluded from this report.

3. Conclusion and Recomm endations

a. A n y c h a n g e i n C M S s h o u ld b e d e e m e d c h a n g e in R u le s o f Co u r t ,a n d a c co r d i n g ly a p p r o a c h e d .


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TheRu le Ena bl ing Ac t (part of U.S. Code) demands publication of any new rules and

reasonable opportunity for public challenge. The introduction of Sustain was

unquestionably a major departure from prior Rules of Court, but there is no indication

that the Rules of Court were accordingly updated. Sustain is for example never

mentioned in the Rules of Court of LA County. Not even once.

No new case management system should be allowed before giving public notice and an

opportunity for comment.

However, when it comes to computer systems, public comment is incapacitated absentdetailed information regarding system specifications. Therefore, rules must be

developed regarding the method of presentation of such systems for public comment

(similar to rules that evolved in the past regarding presentation of building plans for

public comment). In such posting for public comment, the logic of the programming

code may need to be reduced to a set of assertions in natural language. Moreover, in

consultation with experts from the field of mathematics and logic, standardized

presentations may be developed, and methods of certification, to ensure that such

presentations in natural language are true and correct reflection of the code. Such

certification is comparable to a certification on a building plan by an engineer or an

architect, stating that the drawing indeed represents a true and correct representation

of the detailed plans that may be not be fully included in the item presented for public

view. In addition, it may be necessary to certify that the logic of the system is consistent

with the legal code that is implemented in it. Mathematical and logical methods such asformal verification and simulation verification are in existence that may be utilized

for this purpose. But none of it has been done in the past, when large computer

systems were introduced in public agencies, and at present, when such systems are

being replaced with second or third generation, there is no indication that there is any

intention to do so either.


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b. S t a t e o f t h e A r t S e cu r i t y a n d S i g n a g e M e a s u r e s M u s t b eI m p l em e n t e d .

Based on the little that Plaintiff has learnt about Sustain, it is reasonable to assume that

it was modified over the years, and that such modifications were not uniform in all

locations of the Court. Anyad hoc changes in a CMS are a major risk to its integrity,

and rules must be developed to safeguard the systems against such changes in the code.

The system as it is operated now implements User IDs and passwords. But such are

hidden from public view in the Audit Files. That is out of compliance with the of the law

relative to implementation of electronic and digital signatures. Such laws as the U.S. E-

s ig n A c t o f 2 0 0 2 and the Ca l if o r n i a r e g u la t i o n s regarding electronic signatures

mandate that wherever such signatures were traditionally open to public view and

they definitely were open to public view in traditional Books of Court - they must be

made accessible for public inspection also in their digital permutation.

c. N e w m e t h o d s a n d p r o c e d u r e s s h o u l d b e d e v e lo p e d f o r

p u b li c r e v ie w a n d c o m m e n t o n l o g ic m a c h i n e s.

The problem inherent in CMSs is to a degree similar to that of Electronic Voting

Machines extremely high value is placed from public-policy perspective on

verification of such processes, which are some of the foundations of democratic society,

and long-term safeguard of their integrity. The two systems differ however, in that

CMSs reflect a more complex logic, and require networked implementation and

ongoing data input by various users with different authorities, more comparable to a

production monitoring system.

Beyond that the major difference is that introduction of Electronic Voting Machines

was to a large degree interrupted, due to public awareness and public protest of the lack

of verification. CMSs were introduced at a time when such awareness was hardly


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existent. Therefore, they provide in a way a reflection of a branch of government (the

Judiciary in this case) operating based on its own rules, with minimum oversight, if

any.

d . Les s o n s m u s t b e d i s t ill ed f r o m t h e t r a d i t io n a l p a p e r - b a s e d

s y s t e m s

It appears that with the computerized revolution, the traditional systems were

discarded without giving them a second thought. Primary consideration should be

given to strengthening the ministerial arm of the court, as a counter balance to the

judicial, with highly educated and skilled clerks in key positions. The authorities of the

judicial and the ministerial arms should be carefully prescribed and segregated, to

generate appropriate checks and balances.

e . CM S s M u s t b e U t il iz e d t o S a f e g u a r d D u e P r o c es s a n d t o M o n i t o r

t h e Q u a l it y a n d I n t e g r i t y o f t h e Co u r t s

The significance of correct docketing must be emphasized, and the systems must not

allow easy ways to bypass the menu-driven, rule-based docketing. Without accurate

docketing, the system is useless. With accurate docketing the system can become a

valuable instrument in safeguarding Due Process. The contribution of the ministerial

staff in this process needs to be emphasized, and their personal accountability for each

act of docketing, which must bear a personal digital signature that is easily visible, and

easily associated with an individual.

f. Th e b e s t s a f e g u a r d f o r i n t e g r i t y i n o p e r a t i o n s o f CM S s is int r a n s p a r e n c y t h r o u g h p u b l ic a c ce s s t o e le ct r o n i c Co u r t Fi le

r e c o r d s .

The single factor that may contribute more than anything else to safeguard of the

integrity of the operation of CMSs is public scrutiny through public access. Therefore,


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the fact that Sustain gained a privileged status in Los Angeles Count, is alarming in

and of itself, probably at the source of the problem. CMS must be treated like Court

Files that they are the public has the right to view these public records.

W ord Co unt: 5915


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Please notice:Figures are provided here in a more complete fashion to support rigorous review.Prior to publication the size of the figures will be drastically reduced.

LIST OF FIGURES:

1. OPENING PAGES OF CASE HISTORY REPORT/SUSTAINThis is the formal record of litigations, but it is hardly ever seen byattorneys practicing in LA County, since the Court holds that S u s t a i nd a t a a r e p r i v i le g e d f o r t h e Co u r t o n l y . Instead, most rely onrecords such as Case Summary described in 1c.Note that the all three entries on page 1, are back-dated prior to the time of

initiation of litigation. The bottom note on Page 1 of Case History is back-datedJ u ly 2 4 , 2 0 0 4 prior to filing of claims and prior to relevantevents ever taking place. In fact it was entered on 7/24/04, as seen in 1b.

a. Copy from printout of the visible data in the electronic Court File (Sustain)Case Historyreport.Filing Date 0 7 / 2 4 / 0 7

b. The electronic Court File (Sustain)Audit File of same note. The audit datais normally invisible, and is never provided to the public -

Filing Date 0 7 / 2 4 / 0 7 Note on page 3-4 the typical sequence of opening and closing an Eventtypically starting with Docum en t Fi led , proceeding through anEven t where the Minute Order is recorded, and ending with Even t Co m p l e t e.

c. Copy of opening sequence of the Ca s e S u m m a r y report in Courtnet,which is easily accessible to the public on the web, but is disclaimed on thesame web pages, as not a formal document of the Court.

d. Disclaimer regarding Ca s e S u m m a r y

2. BACK -DATING OF COURT ORDERSN o v 1, 20 0 5 M i n u t e Or d e r r e -a s s i g n m e n t o f a c a s e t o a j u d g e

f o llo w i n g p e r e m p t o r y c h a lle n g e .

a. Copy of the Minute Order from paper Court File:Date of Entry - 11/1/05 .

b. Copy of the Minute Order from electronic Court File Sustain:


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Date of Entry - 0 1 / 3 0 / 0 6 .

3. INVALIDATION OF COURT ORDERS W ITH NO NOTICE.O ct 3 , 2 0 0 7 M i n u t e O r d e r r e c u s a l b y a j u d g e -

a. Copy of the Minute Order from paper Court File:Date of Entry - 1 0 / 3 / 0 7

b. Copy of the Minute Order from electronic Court File - in Sustain:Date of Entry - 0 0 / 0 0 / 0 0 reco rd in va li d a t ed

( a l s o s e e n o t e o n p a g e 1 o f t h e E l e ct r o n i c Co u r t F il e r e g a r d i n g d a t e o f 0 0 / 0 0 / 0 0 - Fi g 1, a b o v e )

4. INVALIDATION OF COURT ORDER S W ITH NO NOTICE.J a n 3 0 , 2 0 0 8 M in u t e Or d e r E x -p a r t e r e q u e s t b y a n in d i v i d u a l

f o r t h e Co u r t t o r e l ea se fu n d s h e ld b y t h e Co u r t .

a. Copy of the Minute Order from paper Court File:Date of Entry - 1 / 3 0 / 0 8 -D en i ed w i t h p re j u d i ce

b. Copy of the Minute Order from electronic Court File - SustainDate of Entry - 00/00/00 -R eco rd i n v a l id a t ed

( a l s o s e e n o t e o n p a g e 1 o f t h e E l e ct r o n i c Co u r t F il e r e g a r d i n g d a t e o f

0 0 / 0 0 / 0 0 - Fi g 1, a b o v e )

5. NOTING A PROCEEDING AS OFF THE RECORDJ u ly 6 , 2 0 0 7 M i n u t e O r d e r - E x p a r t e r e q u e s t b y a la r g e

c o r p o r a t i on f o r a g a g o r d e r o n a n i n d i v id u a l .

a. Copy of the Minute Order from electronic Court File (batch print job):Date of Entry - 0 7 / 0 6 / 0 9 -M o t i o n d en i ed , no clerk certificate.

b. Copy of the Minute Order from electronic Court File (Case History):Date of Entry d a t e o f e n t r y n o t m a r k e d in Ca s e H i st o r y n o t i cec o m m e n t P r o ce e d in g n o t r e co r d e d

c. Copy of the Minute Order from paper Court File:Date of Entry n o c op y o f t h e M in u t e O r d e r in p a p e r Co u r t Fi le


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6. MINUTE ORDER W ITH A DEFECTIVE CERTIFICATE OFMAILING - BY A JUDGE.

Ju l y 12 , 2 0 0 7 M i n u t e O rd er D isq u a l if ica t i o n o f a j u d g e f o r a

c a u s e .

a. Copy of the Minute Order from the paper Court File - t h i s M i n u t eO r d e r is u n s ig n e d i n t h e p a p e r f ile , a n d i t c o n t a i n s a t i t s en d

w h a t a p p e a r s a s a n u n a u t h e n t i ca t e d Ce r t if ic a t e o f M a i li n g b y aJ u d g e a n u n -a l lo w e d t y p e o f c er t i fi ca t e

b. Copy of the Minute Order in electronic Court File in Sustain

i. M i s s in g t h e t y p i ca l Cer t i f ica t e o f M a i li n g b y Cle rk ,

i i. I n c lu d es a t i t s en d a n i m p r o v i sed cer t i f ica t e o f m a i li n g b yt h e ju d g e f o r s e lf a n i n v a l id ce r t i fi ca t e o f m a i li n g

i ii. M a i li n g l is t e d t o o n e p a r t y o n l y a n d n o e v i d e n c e t h a t i t

t o o k p l a ce a t a l l.

i v . B a c k - d a t e , t r u e d a t e o f e n t r y is J u l y 2 3 , 2 0 0 7. B y la w i t h a d t o b e s e r v e d w it h i n 10 d a y s , o t h e r w i se , t h e j u d g e is

d e e m e d d i s q u a l if ie d .

7. FICTITIOUS M INUTE ORDERS ep t 10 , 2 0 0 7 M i n u t e O rd er D i sq u a l if ica t i o n o f a ju d g e f o r a

ca u s e b u t a h e a r in g o n M o t io n f o r S a n c t io n s t h a t n e v e r t o o k

p l a ce w a s r eco rd ed .

a. Copy of the Minute Order from the paper Court File:Date of Entry 0 9 / 10 / 0 7 - u n s ig n e d

b. Copy of the Minute Order from the electronic Court File:

Date of Entry 09/11/07 when Judge was already disqualified.

8. BACK-DATING CONFIRMED BY POSTAL STAMP.Aug 21, 2007 Minute Order ex parte for entry of judgment -

a. Copy of the Minute Order from the paper Court File:Minutes Entered 0 8 / 2 1/ 0 7 w it h h a n d s ig n a t u r e o f cle r k

b. Copy of the Minute Order from the electronic Court File:Minutes Entered 08/28/07 with no signature


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c. Copy of the Minute Order as receive by mail by Party:Minutes Entered 0 8 / 2 1/ 0 7 w it h h a n d s ig n a t u r e o f cle r k

d. Copy of the Envelope that the Minute Order was mailed in:Postal Stamp 0 8 / 2 8 / 0 7

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