Upcoming Mallesons seminarsWhat does this mean to Victorian Supreme Court Litigants? The court and litigants before it are now in a position to deal more effectively and efficiently with any litigation which relies on electronic evidence or litigation support technology.
What do you need to do?Continue to focus on understanding your digital assets and work with your lawyers to identify efficient collection processes.
Michelle Mahoney
Director Applied Legal Technology
Roger Forbes
Partner
T +61 2 9296 2150
Sydney
Mark Darian-Smith
Peter Stockdale
Melbourne
Canberra
John Topfer
The use of technology in law is a constantly evolving area. This evolution means many aspects of the legal world must constantly adapt to advances. Change can increase complexity whilst the best use of the available technology is determined. Civil litigation, in particular the growth of electronic discovery, is one area affected heavily by technological change.
The aim of the Practice Note
In response to the increasing complexity in electronic discovery, the Victorian Supreme Court tasked an industry subcommittee (including our own Michelle Mahoney) with reviewing the 2002 guidelines on the use of technology in civil litigation. The aim was to improve the effectiveness and efficiency of hearing matters containing an electronic evidence component.
In simple terms Practice Note No.1 (Guidelines for the use of Technology in Litigation in any Civil Matter) will:
- ensure the Court is better able to accommodate the differences between electronic discovery and conventional discovery, and
- provide a framework to resolve the novel issues created by electronic discovery.
The Practice Note also moves the primary responsibility for agreeing how best to use technology in a proceeding to the parties. This has the aim of changing the use of technology in civil litigation from a weapon to a tool.
What does this mean to Victorian Supreme Court Litigants?
The court and litigants before it are now in a position to deal more effectively and efficiently with litigation relying on electronic evidence or litigation support technology.
The e-master
The court has appointed an e-Master, responsible for the implementation of the new Practice Note. Another part of the role will be to assist the court by hearing interlocutory technology related applications. Assistance will be provided by an e-Litigation co-ordinator, who provides information and assistance to the Court and legal practitioners on the default protocols of the new Practice Note and the use of technology at trial. Their appointment will ensure that technology related issues are dealt with expediently and with understanding.
In light of this new Practice Note the Supreme Court of Victoria is currently reviewing its scale of costs to include a new scale for matters run electronically. In addition Practice Note No. 4 of 2004 which applies to matters in the Commercial List and includes references to the now repealed Practice Note No.1 of 2002 is also currently under review. A revised Practice Note is expected to be issued on the Victorian Supreme Court website shortly for public comment.
What can you do to improve efficiency?
Making the collection of electronically stored information more efficient improves the ability to respond to electronic discovery. There are a number of measures an organisation can implement to enhance efficiency. These include:
Understanding your technology
Understand the types and locations of information stored, applicable computer use policies, and the mechanisms for deleting data. Work with your IT Department to create a map of your information systems, including servers, software packages, storage devices and portable devices such as mobile phones and BlackBerrys.
This map should be reviewed every six months, with new versions created as information changes. Understand your organisation’s record retention policies and ensure that they comply with the requirements of the various jurisdictions in which your organisation operates.
Training
Include training on information management, record retention and discovery productions in your employee training program.
Response team
Assemble a records management response team, including senior members of the IT Department and business personnel.
Drill exercise
Consider running a drill exercise over a discrete set of documents (perhaps for one or two custodians of data) to test the organisation’s ability to respond to a discovery production request and the timeframe required for the response.
Consultants
Engage consultants to assist with the response to an electronic discovery production notice and to provide assistance with the complex issues surrounding electronic evidence. Take the time to ask your consultant questions in order to understand their skills and expertise, and where they can best assist you prior to instructing them.
Learn the lingo
Take the time to learn the e-discovery vocabulary and the many phrases and terms used when working with electronic discovery. The Mallesons website contains a good point of reference - http://www.mallesons.com/expertise/applied_legal_technology/5501527w-05.htm.
The Practice Note changes in detail
The aim of the amendments is to ensure that technology issues are identified and acted upon as soon as possible. The amendments recognise the importance of technology and electronically stored information in litigation and include:
Default Standard (para 1.1)
This Practice Note has a change of emphasis. Rather than being a framework, the language and intent of the drafting is to form the default standard for managing paper and electronic documents within a technology environment. If parties are unable to agree, the default position will be for them to comply with the Practice Note.
Expanded Definition of “Document” (Annexure 4)
The new Practice Note has expanded the definition of the term “document.”It now refers to books, maps, drawings, photographs and films, writing which identifies anything of which it forms part or carries a definite meaning to a person conversant with it, discs and devices in which sounds or images are embodied so as to be capable of reproduction.
Parties Encouraged to use Technology (para 2)
The Practice Note encourages parties and their lawyers, prior to the commencement of a proceeding, to consider the use of technology and where it might lead to the more efficient conduct of litigation.
If the parties have agreed that their proceeding is to be conducted in accordance with the provisions of the Practice Note, the Plaintiff is required to inform the e-Master of the terms of the agreement. Additionally, where a party has formed the view that any provision of the Practice Note should apply to a proceeding, that party should apply to the Court for appropriate directions.
The default protocol (para 4.2)
The Practice Note encourages technology issues to be sorted out between the parties. Paragraph 4.2 sets out the default standard, and also offers a starting point for any negotiations between the parties regarding protocol.
Variations from the default protocol (para 4.3 - 4.5)
WIf the parties depart from the default protocol contained within the Practice Note, the lawyers are required to sign a copy of [their] agreed protocol and file it with the court. Mallesons’ Applied Legal Technology group have drafted protocol templates which meet the requirements of the New Practice Note.
Technical Changes (para 4.2.2 - 4.2.5)
The default standard continues to support a four level unique numbering system for documents: Source, Box, File and Page.
The number of default fields to be exchanged in a discovery list or a database exchange has been increased from eight fields to ten. The additional fields, which were optional in the previous Practice Note, are Host Document ID and Document Group. Document Group uses three letter acronyms to define the role which a document takes within a document set (host, attachment or unattached).
As with the previous Practice Note, the default format for exchanging scanned hard copy discovery documents is single page TIFF files. The default protocol requires electronic documents to be converted from their current format into single page TIFF files.
The Practice Note also sets new default standards for the electronic exchange of other court related documents such as pleadings (Microsoft Word) and exhibit lists (Microsoft Excel).
Court Documents referring to Unique Identifiers (para 5.8)
The Practice Note has also introduced the requirement for all discoverable documents referred to in a court document to be identified by their document ID enclosed in square brackets, and where possible, for the document ID to be hyperlinked to a copy of the document.
Directions Hearings on Discovery (para 6)
The Practice Note requires lawyers to confer at an early stage as to whether any of the parties to the proceeding hold “potentially discoverable electronic material If a directions hearing is held to discuss this material, the lawyers must be able to discuss the anticipated volumes of electronic material as well as any issues surrounding the preservation and production of the electronic material.
This will require the parties and their lawyers to limiting the search for electronic material, the time and costs associated with searching for and collecting electronic material, and the identification of potentially relevant data that is likely to be destroyed or altered.
Trial Considerations (para 7)
The Practice Note requires parties to attend a pre-trial directions hearing and make submissions regarding the best use of technology at the trial. This includes the preparation of the court book and core bundle, and the format of witness statements and other court documents.
The parties are also required to meet with the e-Litigation Co-Coordinator at least 30 days prior to the delivery date of the court book to discuss and arrange hardware and software required for the trial, to confirm that format of an electronic court book is compatible with the Court’s information technology systems, and to confirm that the parties are complying with any other orders which have been made in relation to the electronic conduct of the trial.
Conclusion
These changes have increased the predictability of exchanging discoverable information. For the first time litigants have greater clarity around what can be recovered in a taxation of costs application.
These points, the appointment of an e-Master and a commitment from the Court to greater awareness of the novel issues surrounding discovery, means greater certainty for companies litigating in this jurisdiction.