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Court raises the bar in technical innovation

Feature Articles

Cite as: (2007) 81(12) LIJ, p. 62

The management of increasing volumes of documents in a variety of electronic formats has presented a major challenge to the courts and litigants alike.

By Sandra Potter and Derek Begg

The management of increasing volumes of documents in a variety of electronic formats has presented a major challenge to the courts and litigants alike.
By Sandra Potter and Derek Begg

Over the past few years there has been a steady increase in the number of companies that rely on technology to create, save and store information. Electronic communication in business – email, instant messaging, smart phones – is now the norm. One consequence is that when matters turn litigious, there is much more electronic evidence to be discovered and exchanged.

The Supreme Court of Victoria has been a pioneer in the introduction of technology to civil procedure. In 1999 it led the world by integrating technology with courtroom procedures and by issuing Practice Note No 3 of 1999 which set out guidelines for the electronic exchange of documents.

In 2002 it issued an updated practice note (No 1 of 2002) making three critical changes in approach. For the first time a party could demand that other parties deliver court documents in electronic format. The practice note laid down some minimum standards for document formats and procedures. It also clearly stated that money properly spent on technology in litigation could form part of the costs recoverable by a successful party.

Practice Note No 1 of 2002 was introduced when technology was principally used as a tool for exchanging hard copy documents that had been scanned into an electronic format. Developments in technology have meant that many documents remain in electronic form and are only reduced to hard copy after the event (if at all). Information in some forms (e.g. databases, websites and CAD) are not practically capable of being reduced to hard copy.

On review of Practice Note No 1 of 2002, it was felt by the Court that these developments offered more benefits to parties, lawyers and the Court, and more extensive guidance was required.

New practice note

On 8 February 2007 the Chief Justice of Victoria launched Practice Note No 1 of 2007 for the effective use of technology in civil litigation matters.

“The Court is very proud to be offering the profession and the judges the opportunity to utilise technology efficiently in the Supreme Court. The Court will shortly be in a position to further assist practitioners by introducing e-Filing,” the Chief Justice said.

The practice note, which replaces Practice Note No 1 of 2002, was prepared with input from the profession (through the Victorian Society for Computers and the Law, Practice & Procedures Focus Group) and the judiciary. It provides guidance to parties and lawyers in the use of technology for the preparation and management of civil litigation in the Court and a court-approved framework and default standard for managing both hard copy and electronic documents in a technology environment.

Benefits to the parties and their lawyers

Great care has been taken to ensure that this new practice note is less ambiguous in its language and intent than earlier versions.

The Court’s broad approach to the conduct of civil litigation is reflected in the practice note. Parties and their lawyers are primarily responsible for advancing the proceedings, and any opportunity to use technology for the more efficient conduct of steps in litigation should be considered by them first, even before proceedings start. The way technology is to be used should be by agreement if possible. This includes:

  • exchange of court documents;
  • communication between parties;
  • discovery, inspection and provision of copies; and
  • electronic court books.

The effective introduction of technology to these procedural steps often calls for external consultants. The practice note states that the Court may make orders for the parties to retain an IT consultant to help them in coordinating their implementation of the practice note requirements.

The Court has also directed new resources to help with this process. The introduction of an e-Master (Master Daly) and e-Litigation Coordinator (principal registrar Peter Washington) brings inhouse expertise to the Court. They will be readily available to parties and the judiciary to ensure matters that are started electronically can be run right through to appeal electronically. The e-Master will particularly be able to help with any interlocutory matters which arise regarding the use of technology in any civil matters and the e-Litigation Coordinator will be able to liaise with the Court and parties on the technical requirements for trial or helping to settle protocols agreed to by the parties.

In Section 2 of the practice note parties are walked through how to apply this note to their particular matter. In practical terms, technology is likely to make litigation more efficient when one or more of the following apply:

  • a substantial portion of the potentially discoverable documents consists of electronic material;
  • the total number of potentially discoverable documents exceeds 1000;
  • there are more than three parties to the proceeding; and
  • the proceedings are multi-jurisdictional or cross-border.

Section 3 separates matters relating to the costs associated with the application of the practice note in lieu of any scale of costs that relates directly to running matters electronically within the meaning of r63.69.

Section 4 covers the default standard and agreed protocol – while there has always been a reference to a default standard as a guide for exchange of electronic material, this practice note goes one step further in Section 4 by placing it as the default standard and creating a protocol for parties to follow if they cannot agree on a protocol.

Exchanging information electronically

The new practice note makes discovery more meaningful by requiring parties to exchange more information (10 fields instead of six fields of information) so that there are time and cost efficiencies in using the technology which many firms already gain through minimising duplication of effort.

These required fields are:

1. document ID;

2. date;

3. document type;

4. author;

5. author organisation;

6. addressee;

7. addressee organisation;

8. title;

9. host document ID; and

10. document group.

In this practice note (unlike earlier versions) author/author organisation and addressee/addressee organisation have been separated into two fields instead of being combined into one. This change reflects current practice by lawyers in proceedings already before the Court, and the fact that technology now handles links between fields more readily.

The two fields that have been added are host document ID and document group. These fields were determined to be important with the increase in discovery of electronic documents, particularly emails and their attachments.

Unlike in hard copy discovery, where attached documents are often identified through staples, clips or their position in a folder, in electronic discovery this relationship can be quickly lost if not captured at the outset. Document group identifies if a document is “HWA” – host with attachment, “UNA” – unattached or “ATT” – attachment. If a document’s document group is determined to be “ATT”, then you must also complete the host document ID field with the document ID of the host document. Of course, there can only ever be one host to an attachment so this field will never be a multiple entry field.

The risk with technological change is that the cost and sophistication of technology will of itself create an inequality between parties which could be exploited. By introducing this practice note, more than ever the Court wants to ensure that technology is used by parties simply as a way of bringing more efficiency to the litigation. In the Court’s approach, technology is to be used as a “tool” and not a “weapon”. This is why the Court places the primary responsibility on the parties to agree how technology will be used to a mutually beneficial result.

Court provides reference material

In addition to the annexures to the practice note, extra reference material is available on the Court’s website to help parties and their lawyers with issues that might arise in relation to managing matters electronically, such as:

1. Draft generic protocol (referenced back to the default standards in the body of the practice note)

This document has been designed as a template and parties are expected to use it as a guide only when drafting their own protocol document for filing at the Court.

2. Discovery of electronic material – frequently asked questions

This covers such matters as:

  • what is electronic discovery?;
  • what is different about discovery of electronic material?;
  • what are some of the notable features of electronic documents?;
  • where are potentially relevant electronic documents likely to be found?;
  • what is different about handling electronic documents?;
  • how should parties make and respond to discovery requests or general discovery orders?; and
  • how can the cost of discovery be best managed?

This document was written to help parties who may not have had a lot of exposure in the past to electronic discovery, to help them through the issues that come up when dealing with original electronic material.

3. Hard copy core bundle preparation for e-trials

This document helps parties prepare the hard copy core bundle, which at this time must accompany the soft copy of any court book filed at the Court. This is usually a subset of the discovered documents.

Such a core bundle generally should be prepared in chronological order, subject to the necessity to deal with host documents and attachments in a logical rather than chronological order.

Conclusion

The Supreme Court of Victoria has many initiatives on the go for the use of technology in its courts, such as:

  • 1. a review of the scale of costs to include a scale for matters being run electronically;
  • 2. writing a criminal practice note for the effective use of technology in criminal matters;
  • 3. the smart courts project – which is looking at technology to be made available in the Court’s courtrooms; and
  • 4. education of the judiciary.

Once the practice note was implemented by the Chief Justice, the Court arranged for educational/information sessions in March this year for all practitioners with respect to its introduction. Two twilight sessions held specifically for Law Institute of Victoria members were well attended.

The main concern voiced at these sessions by practitioners was a perception that the practice note was mandatory. It should be emphasised that, while the Court retains its general power to make orders for the efficient conduct of proceedings, the tone of the practice note clearly encourages practitioners to assume the responsibility for dealing with technology issues, and to comply with the Court’s guidelines as fully as they can.

The practice note is due for formal review in 2009, but will be reviewed earlier if there is a significant change in technology or practice.


SANDRA POTTER is chair of the Supreme Court of Victoria Practice Note Drafting Committee, chair of the Victorian Society for Computers and the Law, Practice & Procedures Focus Group and a director of Potter Farrelly & Associates. DEREK BEGG is the education & training manager for Potter Farrelly & Associates and has an extensive background as a solicitor practising in commercial litigation.

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