Upcoming Mallesons seminarsAny organisation who is a party to, or may be a party to, proceedings in the Supreme Court of New South Wales.
What do you need to do?- Find out how electronic discovery differs from traditional (paper-based) discovery. - Find out how your organisation stores, manages and accesses electronic documents, how long they are retained for, and who in the organisation is responsible for this.
Moira Saville
Partner
Megan Smith
Solicitor, Precedents, Dispute Resolution
Robyn Chalmers
Partner
T +61 2 9296 2104
Roger Forbes
Partner
T +61 2 9296 2150
Melbourne
John Waters
Perth
Beau Deleuil
Brisbane
Justin McDonnell
Canberra
John Topfer
Approximately 90% of documents are now created and stored electronically, and between 35% to 70% of all electronic documents are never converted into paper. These changes in the way documents are created, stored and used have led to changes in the way that documents are handled in court proceedings. The most important change has been the development of electronic discovery, where electronic documents are exchanged in electronic form (rather than being printed out and exchanged in paper form).
Use of technology in litigation
In recent years, Australian courts have been making use of technology to improve the efficiency of the litigation process. Parties have been encouraged to use technology both in the courtroom and in the various pre-trial steps, such as discovery, that are taken to prepare for litigation.
The latest development in this move toward greater use of technology in litigation is the issue of a new Practice Note by the Supreme Court of New South Wales (Court). This Practice Note (SC Gen 7: Supreme Court - Use of technology) deals with use of technology generally, but also creates new obligations for parties giving discovery in civil proceedings.
The Practice Note requires parties to consider the use of technology “at all stages of their litigation”. In particular, they are encouraged to exchange electronic versions of documents, serve documents electronically and consider using electronic data at trial (in accordance with the requirements of the Court).
The Practice Note also deals with:
- discovery of ESI (Electronically Stored Information), and
- discovery of non-ESI.
Use of technology in discovery
Discovery of ESI (Electronically Stored Information)
ESI (Electronically Stored Information) is data that has been created by electronic means. Examples of ESI include emails, word processing files, databases, web pages, records of internet activity, images, sound recordings and media used to store computer data (such as disks, drives and CDs). ESI may be discovered by electronic discovery (exchange in electronic form) or by being printed out and made available in hard copy (paper) form.
Obligation to give electronic discovery of ESI
The Court has previously encouraged parties to consider giving electronic discovery of ESI. The new Practice Note, as a general rule, requires parties who have discoverable ESI to:
- create electronic lists of that ESI, and
- give each other inspection of it by production of databases containing electronic copies of the material.
Parties must advise each other, at an early stage of the proceedings, of any potentially discoverable ESI. They are also required to meet and agree on a range of matters concerning the discovery of that material, including the type and amount of ESI to be discovered, the format of the electronic databases to be created, the protocol (ie agreement about data format) to be used for electronic discovery and how to deal with ESI that has been deleted and ESI over which privilege will be claimed.
The Practice Note includes a checklist and table of recommended fields to assist parties in agreeing on a protocol and other matters.
Parties will also need to consider what they will do about “meta-data”, or hidden data. Meta-data is “data about data”, information about an electronic document such as its author and origin, whether it has been sent to or received by anyone and the date on which it was last modified. This information is not usually visible to the user or when the document is printed, but may be automatically discovered, depending on the format used for discovery. The Practice Note provides that, because of the potential costs involved in accessing and analysing this data, it will only have to be discovered where its relevance justifies the cost of doing so.
Discovery of non-ESI
Non-ESI is information that was not created by electronic means (eg handwritten documents, plans, drawings).
The Practice Note provides that, where a party has more than 500 documents that are non-ESI, the Court will expect the parties to consider converting it to electronic form to enable discovery to be made electronically. Where there are fewer than 500 documents, traditional discovery is still permitted.