e-filed 12/9/2019 4:54 pm clerk of court michae! t. risher
TRANSCRIPT
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! Michae! T. Risher (State Bar No. 191627)Law Office of Michael T. Risher2081 Center St. #154Berkeley CA 94702Email: [email protected]: (510) 689-1657F:(510)225-0941
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Attorney for PlaintiffEhlnk Computer Foundation6
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SUEERiOR COURT OF CALIFORNIACOUNTY OF SANTA CLARA0
Think Computer Foundation, Case No.1
2 Plaintiff,Verified Petition for Writ of Mandate andOther Reliefand
Complaint for Equitable Relief(California Rule of Court 2.503(b) and theFirst Amendment)
3 V.
4 Superior Court for the State of California,County of Santa Clara,
and
Rebecca Fleming, Chief Executive Officer ofthe Superior Court,
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6Judge:Department:7 Defendants.
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THi COPUTER rouNDATioN V. Superior Court, Case No,
Verified Petition and Complaint fot Equitable Relief
E-FILED12/9/2019 4:54 PMClerk of CourtSuperior Court of CA,County of Santa Clara19CV359896Reviewed By: J. Duong
19CV359896
1A superior court that maintains records in electronic form must provide remote online
access to these records in nearly all types of civil cases “to the extent it is feasible to do so.”
California Rule of Court 2.503(b). This Court provides remote access to documents filed in complex
cases, as the Rule requires. But it fails to provide this same access to documents filed in other civil
cases, even though it requires represented litigants to file these documents electronically (and
routinely scans paper filings), maintains documents in electronic format, hosts them on the same
platforju as its complex cases, and could easily provide remote access to them, just as it does in
complex cases.
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9Plaintiff has asked the Court to change this policy and to provide the required online
access. Because the Court has declined to do so. Plaintiff brings this case.
Parties
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2Plaintiff Think Computer Foundation is a non-profit organization recognized under
section 501(c)(3) of the federal tax code that seeks to promote legal transparency. One way in which
it does so is through the posting of government documents on PlainSite, a joint venture with Think
Computer Corporation, which can be accessed at https://www.plainsite.org. Through this website.
Plaintiff makes judicial records and other government documents available to the public free of
charge. The site allows the public to locate court and other government records from across the
nation in one place, regardless of venue, and organizes the information in ways that allow the public
to find information far more easily than it otherwise could.
PlainSite hosts approximately 12.4 million dockets and almost 5 million documents
fronr nearly 500 federal and state courts and agencies in a standardized, easy-to-use form. It firrther
indexes the parties involved in these documents in a standardized form a feahire not available on
other legal research seivicesto account for typographical errors, mistakes in identifying similar-
sounding parties, and truncated references. Accordingly, PlainSite is used daily by pro se litigants,
law firms, and every branch and facet of government at the federal, state and local levels-including
courts—to conduct legal research.
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THi COMPUTER Foundation V. Superior Court, Case No.
٧er؛fíed Petition and Complaint for Equitable Relief
؛.؛؛í»'■.>ل-ع١؛:8ا»ية؛■.-؛ب«أ: i1;اا؛'ئ: Iříigs1ألا؛؛؛
ا PlainSite also publislies investigative journalism and assists journalists who seek to
leam more about a particular topic. Several prominent investigative journalists are PlainSite users.
For example, PlainSite has a page devoted to original research and associated lawsuits involving
Herbalife Nutrition Ltd., a Multi-Level Marketing (MLM) nutritional supplement company with a
long and highly publicized history of being accused of operating as a pyramid scheme.‘ This page
collects court records from litigation in multiple jurisdictions that involve the company and makes
them and associated information freely available.
PlainSite has also published extensive research on Credit Acceptance Co^oration,2 a
sub-prime auto lender whose extraordinarily voluminous lawsuits—filli of deeply flawed arguments
that have resulted in thousands of impoverished individuals paying for automobiles via garnished
wages for years even after repossession—at one point in time comprised up to 12% of the entire
docket in Michigan’s 36* District Court (covering Detroit). PlainSite’s original research on this
company has been re-published and cited in media outlets such as The Wall Street Journal, Jalopnik,
and radio broadcasts by WNYC and National Public Radio. Much of this research was made
possible by open remote access to documents in Michigan’s 36* District Court. This PlainSite reportalso draws from and includes numerous court documents from a number of different courts
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17 throughout the nation, which would have been nearly impossible had these courts not provided
remote access to these filings.18
19 PlainSite has a page devoted to information about litigation in Defendant Santa Clara
County Superior Court.5 However, as a result of Defendant’s failure to make documents in standard
non-complex civil cases available remotely, obtaining court records for this this page is significantly
more difficult and expensive (in terms of time and associated costs for transportation) than it would
be if these documents were available remotely. To obtain access, PlaintifTs personnel must go to a
courthouse and use one of the tenninals there. As a result, PlainSite contains far less information
relating to cases fiom Defendant Court than it would like to and is entitled to post.
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!https://www.plainsite.org/reahtycheck/herbahfe.html.
See https://www.plainsite.org/realitycheck/creditacceptance.html ../https://www.plainsite.org/courts/superior-court-of-califomia-county-of-santa-clara جج5
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THINK Computer Foundation V. SuPERioR COURT, CASE No.
Verified Petition and Complaint for Equitable Relief
1In addition, having to go to the courthouse to obtain these documents causes delay in
Plaintiffs access to them, and therefore a delay in its ability to provide these documents on its
website to the public, including journalists covering time-sensitive issues.
Plaintiff brings this case because of its individual interest in having remote access to
the documents in question and also to enforce the public’s right to remote access to civil documents
on the Court’s website.
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7Defendant Superior Court of California, County of Santa Clara, is an agency of the
State of California that possesses the records in question and has the authority to make them
available remotety and to otherwise grant the relief requested in this case.
Defendant Rebecca Fleming is the Chief Executive Officer of Defendant Superior
Court of California, County of Santa Clara. Defendant Fleming has the authority to provide the relief
requested in this case. Defendant Fleming is sued in her official capacity only. In that capacity she is
a person under 42 u.s.c. § 1983 and an inferior person with respect to this Court as that term is used
in Code of Civil Procedure § 1085.
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15Jurisdiction, Venue, and Joinder
16This Court has jurisdiction under Article VI, Section 10 of the California12.
17Constitution.
18Venue is proper in this Court: the Defendants reside in, and the acts and omissions
complained of herein occurred in, Santa Clara County. See Code Civ. Proc. §§ 393(b), 394, 395(a).
Governing Law
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Under California Rule of Court 2.503(a)(1), “[a]ll electronic [superior court] records
must be made reasonably available to the public in some form, whether in electronic or in paper
form, except those that are sealed by court order or made confidential by law.” A court that
maintains civil case records in electronic form “must provide electronic access to them, both
remotely and at the courthouse, to the extent it is feasible to do so.” Rule 2.503(b).
means electronic access fiom a location other than a public terminal at the courthouse.” Rule
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Remote access
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2.502(13).28
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Think Computer Foundation V. SUPERIOR COURT, CASE No.
Verified Petition and Complaint for Equitable Relief
:Ι|·:ΐΙίβΙ|||||Ιϋ ،٦:١·ل!ث[
] This mandate applies to “[a]ll court records in civil cases, except those,” specifically
exempted. Rule 2.503(b)(2). These exempted records include those relating to proceedings under the
Family Code; records relating to certain cases involving juveniles, guardianships, conservatorships;
and criminal, mental-health, civil-harassment, workplace-, gun-, and school-violence, and elder-
abuse prevention proceedings. Rule 2.503(c). Courts must provide electronic access to these
exempted records at the courthouse but not remotely. Id. Records in small claims cases are not
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exempt.
Courts are authorized to “impose fees for the costs of providing public access to its
electronic records.” Rule 2.506(a); see Gov. Code § 68150(^. These public access rules apply if the
court provides access itself or if it does so through a contractor. Rule 2.505.
The California Constitation reqrrires that these rules be read broadly if they firrther
the people’s right to access to these records and read narrowly if they limit that right. Cal. Const.,
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13 Art. 1§ 3(b)(2).
14 In addition, the First Amendment provides a right of access to court fi lings and
orders, prohibiting the Court fiom arbitrarily limiting remote access to them.
Factual Background
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17The Santa Clara Superior Court maintains all, or substantially all, of its civil records19.
18in electronic form.
19The Court has required that documents in all civil cases be filed electronically since
February 13, 2018, with very limited exceptions.4 Papers must be submitted to the Court in PDF
format.
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22The Court’s electronic fi ling system is powered by Odyssey eFileCA, a system
developed by Tyler Technologies, Inc.o As that company explains, this system allows “[!]nstant
access to electronically filed and stamped copies of documents once approved by the court.” The
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254 See http://www.scscourt.org/forms and filing/efiling.shtml (“E-filing for all Civil cases will bemandatory starthrg Tuesday, February 13, 2018.”); see also Santa Clara Superior Court General Rule26
6.27 5.http://www.scscourt.org/forms_and_filing/efiling.shtml جج5See id] ht1p://www.odysseyefileca.com/index.htm.
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τ™κ Computer Fondation V. Superior Court, Case No.
Verified Petition and Complaint for Equitable Relief
]system allows courts to opt to charge for document access on a per-page, per-document basis; The
actual cost is configurable by the court location.
Even before it required electronic filing, the Court maintained nearly all of its civil
records in electronic form by scanning paper documents.
The Court already provides access to its electronic records—including documents—
in standard civil cases؟ at courthouse terminals. In contrast to the two available records portals
available to the public on the internet, these courthouse terminals use a third portal (referred to by its
software developers as the CMS Kiosk Application) available only on the court’s Local Area
Network (LAN). The LAN-based portal provides information about all cases that the internet
portals do not: each document’s ID number, and access to the Adobe Acrobat Portable Document
Format (PDF) version of the document, so long as the document is not sealed.
The first of the public portals is a limited version of Tyler Technologies’ Odyssey
system and can be accessed at https://cmportal.scscourt.org/Portal. This portal allows the public to
remotely search for and then view docket information for standard and complex civil cases. But, as
configured by Defendants, it allows remote access to documents only in complex civil cases, not in
standard non-complex civil cases.
This system could just as easily provide the public with the same remote access to
documents in standard civil cases as it does in complex cases if Defendants so desired.
In fact, superior courts in other California counties use this same Odyssey system to
provide this remote document access for standard civil cases.
For example, in neighboring San Mateo County, the superior court’s “Odyssey Public
Portal allows [the public] to access non-confidential and non-sealed case information and
documents” in standard civil cases—including small claims cases—remotely.؟ See also
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725 https://www.tylertech.com/products/odyssey/portal; Tyler Technologies, Odyssey eFileCA BrandKit, eFileCA-Attomey-Product-Sheet.pdf available at http://www.odysseyefileca.com/brand-kit.htm(attach this PDF).As used in this Petition, “standard civil cases” means all non-complex civil cases other than those ؟in categories listed in Rule of Court 2.503(c).
See http://www.sanmateocourt.org/online_services/odysseyportals.php.و
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THINK Computer Fondation V. SUPERIOR COURT, CASE No.
Verified Pefitlon and CompJalnt for Equitable Relief
:·٠١ξ·١؛χ٢؛؟.'.t-,!·;دب ·4، ،:.·ج*.- rSL١١iî٩؛٠lŞlflT/،1لحج ;،»|ϋ؛««١ ٠τ١-.؛ί>» то،اا.<ج-٠4اب:علا،,-ل'ا٠دلة-،؛ادال١؛:٠:؛؟٠:’؛لل-ا,ء؛.·،· T.؛>
1 https://odyportal-ext.sanmateocourt.org/portal-extemal. As a result. Plaintiff is able to post
documents from cases being litigated in that court more quickly and less expensively than it could if
it had to go to a courthouse to access these documents.
Similarly, both Fresno County and Merced County Superior Courts’ implementations
of the Odyssey system allow the public to view documents in standard civil cases remotely.
Though they do not use the Odyssey system, San Francisco and San Joaquin Superior
Courts’ public access systems make filli documents available to the public free of charge in PDF
format. Similarly, though they do not currently use the Odyssey system, the superior courts in
Alameda County, Los Angeles County, Orange County, Riverside County, Sacramento County, San
Bernardino County, and San Diego County make filli document images available to the public for a
fee, and in some cases, free of charge for a limited time, in PDF format.
The Odyssey system allows courts to provide free access or to "opt to charge for
document access on a per-page, per-document basis.”'
This would allow the Court to recover any additional costs it might incur for
providing remote public access to documents in standard civil cases, as authorized by Rule of Court
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17 This system also allows courts to provide vatying levels of remote access to
documents, distinguishing between parties, attorneys of record, attorneys in general, or members of
the public.
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20 Attached as Exhibit c to this Petition is a true copy of Tyler Technologies Odyssey
Portal product sheet, downloaded fiom
https://www.tylertech.com/Portals/0/OpenContent/Files/3651/ODYSSEY-Portal-Product-Sheet.pdf
This product sheet accurately describes the portal’s available feattrres.
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See https://publicportal.fresno.courts.ca.gOv/FRESNOPORTAL/؛See https://www.tylertech.com/products/odyssey/portal ;
https://www.tylertech.eom/Portals/0/OpenContent/Files/3651/ODYSSEY-Portal-Product-Sheet.pdf؛5gghttps;//www.tylertech.com/Portals/0/OpenContent/Files/3651/ODYSSEY-Portal-Product-
Sheet.pdfi
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Thi COMPUTER FOUNDATION V. Superior Court, Case No.
Verified Petit؛on and CompJaJnt for Equitable Relief
1 The Court has already stored nearly 11 million documents in its Odyssey system in
PDF format, the vast majority of which are inaccessible to the public electronically unless they use
one of the courthouse teminals.
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4The Court provides remote online access to dockets in standard civil cases—
including small claims cases—and complex civil cases. In addition, it provides remote online access
to documents in complex civil cases. But it does not provide remote access to documents in other
civil cases. See Santa Clara Superior Court, Case Infonnation Online (“Case documents (filings,
etc.) are not available online.”).’
Defendant Court also provides remote access though a second, separate portal,
h٠s://p0rtal.scsc0urt.0rg. This portal, too, provides remote access to documents in complex cases
but not in standard civil cases. The Court could offer the same remote access to documents in
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12 standard civil cases here as it does to documents in complex documents.13 For example, the remote case-information page for Case No. 19CV348954,
Facebook, Inc. Vi؟ Min Ge et al (https://portal.scscourt.org/case/NDEyOTkwMQ==)
complex casedoes not allow a user to view or download any filings, orders, or other documents.
Attached as Exhibit A to this Petition is a true copy of a screenshot showing this case-information
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17page.
18 In contrast, in Case No. 19CV349318, Ηοβαη V. Tesla, Inc.,
(https://portal.scscourt.org/case/NDEzMzgwNQ==), the case page shows a “Documents” tab that
allows members of the public to download all of the documents in that case. Attached as Exhibit B
to this Petition is a true copy of a screenshot showing this case-information page, including a list of
the documents that can be downloaded remotely from it.
The technical resources (e.g. HTML, JavaScript libraries, graphics, etc.) necessaty to
display documents are available for every docket on every portal page, but are merely hidden from
the public by design for non-complex cases.
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13Available at http://www.scscourt.org/online_se^ices/case info.shtml.28
THINK COMPUTER Foundation ٧. Superior CouRT, Case No.
Verified Petition and Complaint for Equitable Relief
ϋΙ؛ΙΙΙ m
First Cause of Action
(Rule of Court 2.503; Cal. Const, art. I § 3)
Plaintiff incorporates herein by reference the above allegations, as if set forth in filli.
It is feasible for Defendants to allow remote public access to their electronic
documents-including parties’ filings and judicial orders_in standard civil cases. The Court has
both the resources and technical capacity to do so. See Rule of Court 2.503(d).
Defendants have no legitimate interest in configuring their software or directing
their contractors to configure their soffivare—so as to deny remote access to documents in standard
civil cases.
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943. Defendants’ policy of not providing remote access to these records is arbitrary and
unlawfiil.
1 Second Cause of Action
(First Amendment to United States Constitution against both Defendants; First Amendmentand 42 u.s.c. § 1983 against Defendant Chief Executive Officer)
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Plaintiff inco^orates herein by reference the above allegations, as if set forth in filli.
The First Amendment to the United States Constihition provides a right of access to
documents—including parties’ filings and judicial orders—in standard civil cases.
Defendants have no legitimate interest in configuring their softwareor directing
their contractors to configure their software so as to deny remote access to documents in standard
civil cases.
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Superior Courts in other counties provide this access under the Rules of Court and
have not encountered problems with doing so.
Defendants’ continuing maintenance of a system that provides remote access to
documents in complex civil cases but not in standard civil cases is unreasonable, unjustified, and in
violation of the First Amendment.
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Wherefore, Plaintiff requests the following:25
A writ of mandate and other appropriate orders requiring Defendants to make a126
determination of feasibility and to provide the public with remote access to electtonic27
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Τη^κ CowpuTER Foundation V. SUPERIOR COURT, CASE No.
Verified Petition and Complaint fot Equitable Relief
] documents in standard civil cases, excluding those documents that are sealed or made
2confidential by law.
3An order under 42 u.s.c. § 1983 against Defendant Rebecca Fleming in her capacity2.
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as Chief Executive Officer of Defendant Superior Court of California, County of Santa Clara,5
requiring her to provide the public with remote access to electronic documents in standard6
civil cases, excluding those documents that are sealed or made confidential by law.7
3. That Plaintiff be awarded attorneys’ fees and costs;
4. For such other and filrther relief as the Court deems proper and just.9
Dated: 12/9/2019
By: /s/ Michael T. Risher
Michael T. Risher
Attorney for Plaintiff
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THINK C٥MP٧TER Foundation V. SUPERIOR COURT, CASE No.
Verified Petition and Complaint fot Equitable Relief
ΪΙΙΙ؛·.|||:|؛ΙΙ|Ί.؛؛،؛
1Verification
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I, Aaron Greenspan, am the President and a Director of Think Computer Foundation and3
authorized to verify this Petition as an officer. I have read this Verified Petition for Writ of Mandate4
m" Thtnk Computer Foundation V. Superior Court, Counfy of Santa Clara and am m" foieri, aUiri fio5
believe, that the representations made regarding the matters herein are true. On that ground I allege6
that the matters stated herein are true.7
I declare under penalty of perjuj^ under the laws of the State of California that the foregoing
9 is tme and correct.
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dated: Docemberg, 2019 at San Francisco, CA11
12Aaron GreCnspan
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2810
Think COMPUTER FOUNDATION v. SUPERIOR COURT, Case No.
Verified Petition and Complaint for Equitable Relief
Exhibit A
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odysseyjustìce solutiona tyíer courts
Odyssey Porta؛ odyssey Portaẵ Benefits؛Setting the bar for c!t!zen's ease-of-use, Odyssey Porta!™ is a web-based apphcation thatis u!timate!y the next generation of Pubhc Access. Using Odyssey rights and roles providesthe public, judges, attorneys, court staff, jailers and other agencies real-time access to theappropriate level of case, calendar and party information from any PC, tablet or mobile phone.By tracking data and documents accessed by users, as well as leveraging Odyssey's document
security, the Portal provides secure, self-service access to Odyssey data.
» Provides justice partners, attorneys,businesses and the general public24/7 real-time, secure access tocourt data from a PC, Mac, tabletor smartphone
٠ Runs on multiple platforms, in-eluding Windows®, osx, IOS andAndroid™ across all modern webbrowsers — Internet Explorer®,Google Chrome™, Mozilla Firefox®and Safari®
Advanced Features
Odyssey Portal's powerful features allow courts to easi ly manage and control what contentusers can query and view. User activity is tracked via the administrator's dashboard, enabl ingcourt administrators to see who Is using their site, all the way down to the IP address level.Ttie application's intuitive interface encourages citizens to self-serve, which increases court
efficiency and allows court staff to be redeployed to other tasks. When authorized, users
can access the information they need instantaneously, 24/7 and from anywhere, withoutwaiting in lines or making unnecessary trips to the courthouse. Registered users can accessinformation, including register of actions, judgments and orders, court docket informationand calendars.
ty to Empower the PubISc٧؛؛؛sab EnhancedThe Odyssey Portal offers the following robust features:
٥ Smart search - Simi lar to a Google® search, simply entering a keyword provides userswith access to a plethora of data, including cases, warrant records and protectionorder records. The search results view is optimized based on the user's input.
» Electronic document access - Users can easi ly view and download their case
documents electronical ly. Courts can opt to charge for document access on a
per-page, per-document basis. The actual cost is configurable by the court location.
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specific tiearings and find when cases are set on the calendar.
» Attorney hearing scheduling - Attorneys can remotely schedule hearings Into selectcalendar sessions identified by the court for avai labi l ity via the internet.
« ePayments Users can locate and pay eligible case fees and citations onl ine with
Payment Card Industry (PCI) compl iant credit card processing, and their transactions
are automatical ly updated in Odyssey.
For more information, visit
www-tylertech.com
or emaillnfoetylertech.comContirrued on re.verse
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Empowering people who serve the public* ® ٠*٠٠٠ ty ¡er٠٠ I ١١ ١ ١For more information, visit wvw.tylertech.com
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« E!evated access for attorneys, agencies and justice partners -The Odyssey Portal leverages Odyssey rights and roles to
determine what features a user can access. The Odyssey Data Provider, in conjunction with Odyssey Document Security,
determines what case data and documents are visible to the user. For example, anonymous public users can only view public
case data, whereas an attorney can view case data when they are the Attorney of Record on the case.
Note: Non-registered users can complete case and calendar searches on public cases. Access to the various features are determined by
Portal user roles (public anonymous, registered and registered attorney), and access to case data is governed by the user rights, Odyssey
Data Provider.
lultiievel Se؛f-Se٢v؛ce for greater Operat؛ona. Efficiency
The Odyssey Portal is accessible to all types of users and offers new users self-registration to create their own accounts. When usingprotected user accounts, registered users can access important case data with just a few clicks.
Administrators can conveniently manage their site and users through a comprehensive interface. This dashboard provides administratorswith instant access to:
» User activity tracking and logs that show the user's interaction with the Portal as they move through the site, and includesactivities, such as:
» Unauthorized login attempts
» Cases, hearings, calendar and judgment searches, and the parameters used for those searches» Documents viewed and downloaded
» Elevated access rights and roles management
٠ Configuration of search functionality by location, case category and case type
* Global site and individual application settings
٠ Products and product pricing
Access Cöurt Information Instantly from a Mobile DeviceInformation accessibility is vital to judges, attorneys, clerks and the general public.The Odyssey Portal provides secure access to case information on al l mobile devices
— Apple iPhone® and iPad®, Android, Windows Mobile devices and Mac/PC. Users
don't need to download an extra app to run on their device because the applicationuses HTMLS and a “responsive design," which is natively supported on all moderndevices. The Portal's technolog detects the screen size of the device, so regardlessof the device's brand or operating system, the interface adjusts for optimal viewing,
including resizing text, removing graphics to make room for vital information and even
reorganizing the layout. Even if the user is viewing the Odyssey Portal from a smallerscreen, they wil l see all of the data without needing to pinch and resize the screen,and buttons and links remain large enough to accurately click using a finger.
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Trusted Market Leader
By leveraging the Odyssey Portal, you're gaining next generation technolog that will seamlessly integrate with Odyssey File & Serve™ andOdyssey Guide & File" as well as improve operational efficiency and empower your constituents.
With hundreds of judicial clients, including many statewide implementations and some of the largest courts in the nation, TylerTechnologies' sole business focus is providing software solutions and services to the public sector. Tyler's deep experience in the courtsand Justice market uniquely positions the company as a leader in this space. The Odyssey case management system serves more than600 counties across 22 states to drive efficiencies, streamline workflow processes and el iminate paper.
Empowering people who serve the public' *V·،.٢,^ا٧؛ For more information, visit www.tylertech.comأ' *٠ ؛ echnoioei؛