April 2, 2020

Chief Justice Releases CJOs 20-006 (amended), 20-008, and 20-010 to address COVID-19

On March 27, 2020, Chief Justice Martha Walters released an updated CJO 20-006. This CJO expands on her original order, first released on March 16, 2020. The updated order takes into consideration feedback from Bar members, as well as a number of workgroups with a focus on civil, criminal, landlord-tenant, and family law issues. These workgroups were made up of judges, judicial staff, and practitioners. Additional orders are expected in the coming weeks to allow the courts to respond quickly and appropriately to the changing needs of Oregonians.

In addition to CJO 20-006 (amended), the Chief Justice released CJO 20-008 and CJO 20-010 on March 27, 2020 as well.

• • • CJO 20-006 (amended) extends the original order to June 1, 2020, and responds to issues raised by stakeholders.
    • CJO 20-008 will allow eFiling of declarations that have been electronically signed by parties and witnesses when using appropriate electronic signature software.
    • CJO 20-010 allows suspension or waiver of collection fees. Together with CJO 20-006 (amended) and other administrative actions, courts will limit imposition of fines and suspend many collection activities for those who are unable to pay.

The Oregon State Bar has created an access point for CJOs, updates to the Uniform Trial Court Rules, and communications from the Oregon Judicial Department. For up-to-the-moment information, please visit www.osbar.org.

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Oregon Law Commission Submits Remote Online Notarization Legislation to Legislature

Last year the Oregon Law Commission approved the creation of a work group to consider remote online notarization. The group, made up of representatives from the Oregon Judicial Department, the Department of Justice, the Secretary of State, the Oregon Bankers Association, the Oregon State Bar, land title companies, and the counties met throughout the year to discuss the Uniform Law Commission’s “Law on Notarial Acts, Revised.” The Oregon-specific finalized language was accepted by the Oregon Law Commission in late fall for submission to the legislature.

Last week the work group reconvened to review the draft legislation in response to the COVID-19 pandemic. After discussion, the group submitted the legislation for consideration during the upcoming legislative session. Thank you to the chair of the work group, Mark Comstock, and Heather Gilmore, Melissa May, Tommy Brooks, and Pat Ihnat, among others, for your participation in the work group.

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Legislature Poised to Address Novel Coronavirus (COVID-19)

Oregon, like the rest of the country, is facing a number of challenges arising from the novel coronavirus (COVID-19) pandemic. Over the last month, the legislature’s Emergency Board has released funding to the Oregon Health Authority and the Oregon Military Department, and the legislature created a Joint Special Committee on Coronavirus Response to review legislative proposals.

Over four meetings beginning on March 18, 2020, and running through March 24, 2020, the Joint Special Committee, led by Sen. Arnie Roblan (D-Coos Bay) and Rep. Paul Holvey (D-Eugene), met to discuss and review the effects of the pandemic on Oregon and its citizens. The committee reviewed presentations from the Governor, business and community leaders, the Oregon Judicial Department, labor unions, the Oregon Health Authority, and many more stakeholders. Over the course of the four marathon meetings, the committee received over 1,500 pieces of written testimony and 47 different policy proposals to address the pandemic. On March 25, 2020, the co-chairs released their recommendations to legislative leadership. As additional information from the legislature is released, the Oregon State Bar will update bar members.

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File & Serve Updates—What You Need to Know

The Oregon Judicial Department has made changes consistent with the CJOs issued on Friday, March 27, 2020, to encourage social distancing and increase the public’s ability to access courts remotely. These changes, identified below, are effective immediately.

In addition, the File & Serve upgrade that was scheduled to occur on April 10, 2020, has been postponed. More details will be provided once the new upgrade schedule is in place.

Trial exhibits may now be submitted through File & Serve, for proceedings conducted by remote means.

CJO 20-006 (amended) allows filers to submit trial exhibits that can be converted to a PDF through File & Serve if the proceeding is to be conducted by remote means. This is a temporary change that will make it easier for hearings and trials to be heard remotely and will reduce the need to hand exhibits back and forth in the courtroom during the current emergency. Section 7 of CJO 20-006 (amended) outlines the changes in detail.

The filer must submit exhibits in a single unified PDF unless the envelope is larger than 25MB or as otherwise directed by the local court. If the PDF larger than 25MB, the filer will need to separate the PDF into two documents and file them in separate envelopes. The filer should submit the PDF as confidential. If the document is not marked confidential, then it will be available to view on public kiosks and for all OECI users. Since the exhibits will be marked confidential, the opposing party will be unable to view them in OECI. This means the filer will need to provide the opposing party with copies of the exhibits the filer intends to introduce into evidence. This may be accomplished through File & Serve by either eServing the party or including the party’s email address in the courtesy copy field.

The PDF containing the trial exhibits must include both a linked index and a bookmark for each exhibit. PDFs that do not meet these requirements will be returned. Instructions for creating linked indexes and bookmarking exhibits are included at the end of this article.

If you need to submit exhibits that cannot be converted into a PDF, such as audio, video, or physical evidence, during a remote hearing, please coordinate with your local court.

UTCR 21.090 has been amended to allow nonfilers to electronically sign declarations.

Chief Justice Walters has also amended UTCR 21.090 to allow electronic signatures to be used for declarations signed by nonfilers (i.e., represented parties and nonparty declarants) that are submitted through File & Serve. See CJO 20-008 for details.

The UTCR 21.090 amendment and companion repeal of UTCR 21.120 (now part of 21.090) were already presented to the UTCR Committee, which had tentatively approved them for anticipated adoption by the Chief Justice effective August 1, 2020. Due to the COVID-19 pandemic, the Chief Justice has adopted the amendments out-of-cycle, effective March 27, 2020 to reduce the need for in-person and mail contacts.

This change allows attorneys to have clients and witnesses sign declarations remotely. The rule requires the use of electronic signature software that uses a security procedure to verify that the declaration was signed by the purported declarant, and the rule cites the definition of “security procedure” in ORS 84.004(14). This is intended to allow attorneys to choose from electronic signature software that is currently used in the business community. However, the use of “s/” for signing declarations under UTCR 21.090(5) is still limited to the person who is electronically submitting the document.

UTCR 21.090(8) specifies that the filer must retain the electronic document containing the electronic signature of a nonfiler declarant until the entry of a general judgment or other judgment or order that conclusively disposes of the action. The intention is to require the filer to retain the document until the circuit court case reaches its conclusion. This provides the opposing party with a chance to challenge the declaration at the circuit court level and preserve the issue for appeal.

The rules contained within former UTCR 21.120 have been moved to UTCR 21.090, and former UTCR 21.120 has been repealed, so all rules related to electronic signatures are now located within UTCR 21.090. Former UTCR 21.120(1), the retention period for a declaration containing an ink signature of someone other than the filer, has been moved to UTCR 21.090(8)(b), and former UTCR 21.120(2), the requirement that the filer certify to the best of the filer’s knowledge that the signature is that of the purported signer, has been moved to UTCR 21.090(7).

Please keep in mind that UTCR 21.040 requires all filings to be submitted as standard text-searchable PDF or PDF/A documents. This means that any electronic certificate must be removed from the PDF prior to submitting it to a court. The easiest way to remove the certificate is to flatten the document by selecting “print” and saving the document as a PDF.

Upcoming File and Serve Webinars

The Oregon Judicial Department will host two webinars to provide more details about these changes and provide an overview of File & Serve. Those webinars will be held on

Monday, April 6, 2020, from noon to 1:00 p.m., and

Tuesday, April 7, 2020, from 4:00 p.m. to 5:00 p.m.

If you are interested, you may register by using this link: https://register.gotowebinar.com/rt/6119071785356738061

If you have any questions related to these changes, please reach out to Sam Dupree at the Oregon Judicial Department ([email protected]; (971) 283-1133).

How to link exhibits and create bookmarks in Adobe Pro

1. Locate the document and open with Adobe Pro.

2. OCR the document (makes the document text searchable).

• • • Select View then Tools.
    • From Tools, select Enhance Scans.
    • On the Enhance Scans toolbar, select Recognize Text and select In This File.
    • Select the Recognize Text button.
    • Save and close the Enhance Scans tool.

3. Link the exhibits listed on the index to the appropriate exhibit.

• • • Select View, then Tools.
    • From Tools, select Edit PDF.
    • From the Edit PDF toolbar, select Link and Add/Edit Web or Document Link.
    • Locate the first entry on the index.
    • Drag a box around the entire index entry.
    • From the Create Link dialog box, select the Link Type of Invisible Rectangle.
    • Select the Link Action of Go to a page view.
    • Click Next to open the Create Go To View dialog box.
    • With the Create Go To View dialog box still open, scroll to the beginning of the first page of the related exhibit or enter the page number from the navigation bar.
    • Click Set Link.
    • Repeat for each exhibit in the document.

4. Link the exhibits to a bookmark within the document.

• • • • Select the Bookmark icon on the toolbar on the left side of the page.
      • Highlight the beginning of the exhibit.
      • Then click the New Bookmark icon.
      • Repeat for each exhibit in the document.

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Quick Links

Oregon State Bar Resource Page
https://www.osbar.org/_docs/resources/COVID19.pdf
Professional Liability Fund Resource Page
https://www.osbplf.org/assessment-exemptions/covid-19-april-10-assessment-deadline.html

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