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'
Rapid Communication

CASE MANAGEMENT SYSTEMS (CMS’S) AND THE COURTS:

LONG-TERM CALIFORNIA PUBLIC POLICY CONCERNS, AND ACUTE
PROBLEMS IN THE LOS ANGELES SUPERIOR COURT.
Part II – Registers of Actions and Indexes of All Cases – Critical
Safeguards that are Public Records

Joseph Zernik

This report presents findings, based on limited access to “Sustain”- Los Angeles
County’s 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.

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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. CMS’s in most counties and most states of the U.S.A. today assume similar
central position in the Court House, but CMS’s 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
Sustain’s 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. “Minute Orders” – written by a Judge, Processed by a Clerk (Fig 2a,
2b), are an integral part of “Trial Court Litigation Records”, and are
issued through Sustain.
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 are issued, and
Proof of Service must be added to the permanent record – both
executed by the Clerk, and implemented 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 Clerk’s
certification of mailing, and similarly the requirement for Clerk’s 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. Minute Orders are Part of Litigation Records – in paper Court File

and also in Sustain – electronic Court File (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 clerk’s
office upon demand.

2) Analysis Methods
a. This study is biased
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. Identification of Data Variations among the Sources

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. No Legal Analysis for Compliance was Undertaken

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. Minute Orders as part of the records in Sustain – No Authenticated

Records Stored (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 Clerk’s 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 Clerk’s 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. Implementation of Clerk’s Certificate of Mailing in Sustain.

In order to complete the Minute Order mailing procedure in Sustain, a Clerk has to log
in 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. Authentication of the Clerk’s Certificate of Mailing and the Record in
Sustain
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 Clerk’s
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. Minute Orders – as part of the records in paper Court File (Fig 2a)
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:

FILED
LOS ANGELES SUPERIOR COURT
MAR 28, 2007
JOHN CLARKE, CLERK
<Signature>
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 Clerk’s Certificate of Mailing by Clerk includes language that may substitute for
the “FILED” stamp and Clerk’s signature. In fact even the title states: “Notice of
Entry of Order.”

CLERK’S CERTIFICATE OF MAILING/

NOTICE OF ENTRY OF ORDER

I, the below named Executive Officer/Clerk of the

above-entitled court, do hereby certify that I am not
a party to the cause herein, and that this date I
served Notice of Entry of the above minute order of
11-1-05 upon each party or counsel named below by
depositing in the United States mail at the courthouse
in Santa Monica, California, one copy of the original
entered herein in a separate sealed envelope
for each, addressed as shown below, with the postage
fully prepaid.

Date:
John A. Clarke, Executive Officer/Clerk

By: ___________________
T. McDonald

JAY R. STEIN
1801 Century Park East
Suite 2400
Los 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 served Notice of Entry of the above minute order of 11-1-

05 upon each party or counsel named below…”

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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 Court 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 party’s 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 different
method 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 that
the 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 service
names 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 Document Filed MEMO

Order
Court
GRANTING SUMMARY JUDGMENT IN
FAVOR 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. Minute Orders - time stamps

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. Electronic Court File - Case History Report in Sustain

The first few page of the report are copied in Fig 1a. This report was provided by the
Clerk’s 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 Summary” 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 History 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 – “privileged – for the Court only”.

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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 Clerk’s 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 not
uncommon at the LASC.

g. Variations in Date notations between Minute Orders from paper

Court File and as printed from Sustain.

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 (Fig 2a vs 2b, 7a vs
7b, 8a vs 8b).
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 Clerk’s Certification of Mailing by the Clerk, as the date of mailing, and
a fourth time, as part of the authentication of the Clerk’s 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 printouts
is 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 8a)

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
Clerk’s Certificate of mailing: 08/21/07, with “wet” hand signature of the Clerk.

• Minute Order mailed to Party (Fig 8b)

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 clerk’s 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 8c)
The postal stamp on the Minute Order shows a date of 08/28/07.

• Minute Order printed later from Sustain (Fig 8d)

Date of proceeding: 08/21/07, date of service by mail: 08/21/07, and date of clerk’s
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 user
is 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 may
assume invalid values of 00/00/00 or 33/33/33, therefore
invalidating the record. (Fig 3a vs 3b, Fig 4a vs 4b)
We believe that any Minute Order that shows a date of entry such as 00/00/00 or
33/33/33 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 : 645
Disposed : 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 recording

of the true dates, are common throughout the System (Fig 1a vs
1b)
Fig 1a shows the opening pages of Case History in Sustain. That page include some
unusual notes entered as “Document Filed” listings. For example, in litigation in
Trial Court, the term or party designation “Real Party in Interest” is hardly ever
used. But the note on page 1 (Box added) states:

07/24/04 Document Filed

Opposition
Real Parties in Interest
( BY COUNTRYWIDE 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 “Audit 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:

AUDIT
Date Time Function User ID User Name
7/24/07 8:36am Add 6815 Jaime, 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 naïve reader. In Sustain’s “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):
“Proceedings not recorded”
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 Clerk’s 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 9b 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 Party’s
records show no Minute Order like this particular one was received by mail either.

vii. Records missing Clerk’s Certificate of Mailing by present in paper

Court File

Many of the Minute Orders present in the paper court file in this case are missing the
Clerk’s Certificate of Mailing. Indeed they are missing altogether from the party’s
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. Correlations between the Nature of the Proceedings and Variations
in Data Among Sources
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 Recorded” added 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 Recommendations

a. Any change in CMS should be deemed change in Rules of Court,

and accordingly approached.

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The Rule Enabling Act (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 absent

detailed 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 as
“formal 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. State of the Art Security and Signage Measures Must be
Implemented.

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. Any ad 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 ID’s 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-
sign Act of 2002 and the California regulations 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. New methods and procedures should be developed for

public review and comment on logic machines.

The problem inherent in CMS’s 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
CMS’s 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. CMS’s 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. Lessons must be distilled from the traditional paper-based

systems

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. CMS’s Must be Utilized to Safeguard Due Process and to Monitor

the Quality and Integrity of the Courts

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. The best safeguard for integrity in operations of CMS’s is in

transparency through public access to electronic Court File
records.

The single factor that may contribute more than anything else to safeguard of the
integrity of the operation of CMS’s 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.

Word Count: 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/SUSTAIN

This is the formal record of litigations, but it is hardly ever seen by
attorneys practicing in LA County, since the Court holds that “Sustain
data are privileged – for the Court only”. Instead, most rely on
records 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-
dated July 24, 2004 – prior to filing of claims and prior to relevant
events 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 History report.
Filing Date – 07/24/07

b. The electronic Court File (Sustain) Audit File of same note. The audit data
is normally invisible, and is never provided to the public -
Filing Date – 07/24/07
Note on page 3-4 the typical sequence of opening and closing an “Event”
typically starting with “Document Filed”, proceeding through an
“Event” where the Minute Order is recorded, and ending with “Event
Complete”.

c. Copy of opening sequence of the “Case Summary” report in Courtnet,

which is easily accessible to the public on the web, but is disclaimed on the
same web pages, as not a formal document of the Court.

d. Disclaimer regarding “Case Summary”

2. BACK-DATING OF COURT ORDERS

Nov 1, 2005 Minute Order – re-assignment of a case to a judge
following peremptory challenge.

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 - 01/30/06.

3. INVALIDATION OF COURT ORDERS WITH NO NOTICE.

Oct 3, 2007 Minute Order – recusal by a judge -

a. Copy of the Minute Order from paper Court File:

Date of Entry - 10/3/07

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

Date of Entry - 00/00/00 – record invalidated
(also see note on page 1 of the Electronic Court File regarding date of
00/00/00 - Fig 1, above)

4. INVALIDATION OF COURT ORDERS WITH NO NOTICE.

Jan 30, 2008 Minute Order – Ex-parte request by an individual
for the Court to release funds held by the Court.

a. Copy of the Minute Order from paper Court File:

Date of Entry - 1/30/08 -– Denied with prejudice

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

Date of Entry - 00/00/00 - Record invalidated
(also see note on page 1 of the Electronic Court File regarding date of
00/00/00 - Fig 1, above)

5. NOTING A PROCEEDING AS “OFF THE RECORD”

July 6, 2007 Minute Order - Ex parte request by a large
corporation for a gag order on an individual.

a. Copy of the Minute Order from electronic Court File (batch print job):
Date of Entry - 07/06/09 - Motion denied, no clerk certificate.
b. Copy of the Minute Order from electronic Court File (Case History):
Date of Entry – date of entry not marked in Case History – notice
comment “Proceeding not recorded”
c. Copy of the Minute Order from paper Court File:
Date of Entry – no copy of the Minute Order in paper Court File

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6. MINUTE ORDER WITH A DEFECTIVE CERTIFICATE OF
MAILING - BY A JUDGE.
July 12, 2007 Minute Order – Disqualification of a judge for a
cause.

a. Copy of the Minute Order from the paper Court File - this Minute
Order is unsigned in the paper file, and it contains at its end
what appears as an unauthenticated Certificate of Mailing by a
Judge – an un-allowed type of certificate

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

i. Missing the typical Certificate of Mailing by Clerk,

ii. Includes at its end an improvised certificate of mailing by
the judge for self – an invalid certificate of mailing
iii.Mailing listed to one party only – and no evidence that it
took place at all.
iv. Back-date, true date of entry is July 23, 2007. By law it
had to be served within 10 days, otherwise, the judge is
deemed disqualified.

7. FICTITIOUS MINUTE ORDER

Sept 10, 2007 Minute Order – Disqualification of a judge for a
cause – but a hearing on Motion for Sanctions that never took
place was recorded.

a. Copy of the Minute Order from the paper Court File:

Date of Entry – 09/10/07 - unsigned

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 – 08/21/07 – with hand signature of clerk

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 – 08/21/07 – with hand signature of clerk

d. Copy of the Envelope that the Minute Order was mailed in:
Postal Stamp – 08/28/07

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