Litigation using Electronic Discovery
Generally, one of the most costly phases of any litigation is the discovery stage. If discovery is necessary and how discovery occurs, including whether or not electronic discovery is appropriate, must be considered early in a proceeding.
If parties are considering the use of electronic discovery, they should be familiar with the information set out below, as well as:
- Part 10 of the Central Practice Note (CPN-1)
- Part 4 of the Technology and the Court Practice Note (GPN-TECH)
- Division 20.2 of the Federal Court Rules 2011 (Cth)
At all times, any considerations relating to electronic discovery should have as their aim, the desire to minimise the burden of litigation on the parties and to maximise the effectiveness and efficiency of the particular trial, document production or other process.
Planning for electronic discovery
(a) Prior to first Case Management Hearing
In preparation for the first case management hearing (first CMH), and before the Court will consider making an order for electronic discovery, the Court expects parties to have considered and, where appropriate, agreed on the matters in the table below. This has been set up as a checklist, and parties may wish to document these matters.
Please note that nothing agreed between the parties is binding on the Court. The Court must make an order for discovery in a proceeding (including whether discovery should be given by electronic means). The Court must also approve any discovery plan and exchange protocol.
Electronic discovery considerations - First CMH (to be approved by the Court)
Matters of disagreement
1. What is the scope of discovery and whether the scope of discovery for the proceeding warrants electronic discovery
2. Determine preliminary estimates of the cost of electronic discovery – are the costs and time proportionate to the proposed electronic discovery?
3. Consider appropriate quality control testing of the discoverable documents and how, once reviewed and produced, the discoverable documents should be managed electronically?
4. What is a suitable and reasonable timetable for electronic discovery
5. If the discoverable documents should be managed as electronic documents, determine strategies (a discovery plan) for:
6. Parties should agree on an exchange protocol. The Court has outlined a default format for trial purposes – the Default Document Management Protocol (DDMP). The exchange protocol should consider how electronic documents will be exchanged and managed, including:
NOTE: It is preferable that the Court's DDMP be used. However, the Court understands that each case will differ in its technological requirements and, as such, parties are encouraged to, whenever it is appropriate to do so, customise the DDMP, to ensure the most effective and efficient use of technology in the Court. To assist parties, please note the Court's example of an Advanced Document Management Protocol. The Court is developing a "Standard Document Management Protocol" (SDMP) as part of its Digital Court Program.
7. Consider a strategy to ensure that electronic documents which are potentially discoverable documents are preserved in their original format (preservation strategies)
Some additional useful tips to consider include:
- When dealing with the management of electronic documents contained within databases, proprietary computer systems and other uncommon formats or repositories – parties should consider creating a data map to show the relationships between the different databases being referred to
- It is not necessary to re-supply documents previously provided in electronic discovery – for instance when providing witness statements, expert reports, all evidence exchanged and referenced will be referred to by original document ID. Documents in witness statements, expert reports are not to be renumbered
- Evidence submitted to the court book will maintain the original document ID used in discovery - parties should not renumber documents for a court book. This provides significant time and cost savings to the clients and streamlines the eTrial process
- Any documents printed to create a hard copy set of documents for trial purposes will not be renumbered. It will maintain the original document IDs as used in discovery.
(b) Prior to Pre-trial Case Management Hearing
In accordance with Part 13 of the Central Practice Note, a pre-trial case management hearing will generally be held, where appropriate, approximately 3 weeks prior to the scheduled trial date, with the lawyers involved in the case including the advocates retained to run the case and, if appropriate, the parties attending.
The pre-trial case management hearing is an opportunity for the parties and the Court to deal with any outstanding matters or applications before the start of the trial.
Prior to the pre-trial case management hearing (pre-trial CMH), parties should consider:
Electronic discovery considerations – prior to pre-trial CMH (to be approved by the Court)
Matters of disagreement
1. Have the required elements of the SDMP or relevant protocol been implemented, such as:
2. Have all documents been included in the court book and have adequate arrangements been made to ensure that the court book contents will be properly managed and maintained throughout the trial?
3. Have Counsel been appraised of the need to refer to the Document IDs? This will facilitate the smooth operation of the electronic trial. If documents are referred to in this manner they can be recalled quickly by the court operator and may also be cross-referenced within the transcript to facilitate automated hyper-linking between the electronic transcript and electronic documents
4. Is the proposed software for the digital hearing acceptable to the judge and Court IT staff?
5. Consider and address the hardware and software requirements for the courtroom? Parties need to liaise with the Court's Technology Services to ascertain the equipment that will be available from the Court so that they may make arrangements for the provision of any additional equipment (eg. from their service providers)
6. Consider whether a suitable qualified service provider should be engaged to facilitate the electronic trial on terms acceptable to the Court. This may be more relevant in large electronic discovery proceedings. Parties should consider:
7. Have the parties adequately addressed the need to provide courtroom operator services?
(c) Prior to trial
Some final consideration before going to trial using electronic discovery, including:
Electronic discovery considerations – Prior to trial (to be approved by the Court)
Matters of disagreement
1. If proprietary software is required to open a native document, have the parties set up the appropriate hardware and software in the courtroom to open it and, where required, make it visible on all 'court view' screens?
2. Is any animated evidence going to be given?
3. Have parties agreed on an insertion/deletion process for the adding and removing of material from the trial repository?
4. If a witness is to be shown an exhibit:
5. Who is ordering transcripts? Whose responsibility is it to upload the transcript (if agreed) to the trial repository?
Note: Due to contractual obligations, the Court's authorised transcript provider must be used to provide transcripts.