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 agreed	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:
	identification: what electronic search strategies can be used to conduct a reasonable search to locate discoverable documents - such as using appropriate forms of technology assisted review (or TAR) such as: predictive coding email threading technology keyword / concept searches de-duplication
	collection & processing: where and how the discoverable documents will be held (i.e. external repository) and how the collection process will occur
	analysis: appropriate quality control testing of the discoverable documents and agreed sampling processes
	review: considering appropriate Recall and Precision for the review
	exchange: see point 6 below
	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: how to describe documents for any list of documents (creating document IDs) the structure and format of documents to be discovered the method to electronically exchange documents what data security is required how to manage errors in exchanged documents procedures for: redacted documents privileged documents confidential documents the process for de-duplication of documents and email threading 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 agreed	Matters of disagreement
	1. Have the required elements of the SDMP or relevant protocol been implemented, such as: To ensure all documents are able to be adequately searched by the Court and the parties – are all the Imaged Documents that are to be included in the court book in searchable PDF format, other than documents that are images in their original format (such as TIFF, GIF and similar image files)? Will any Documents, in addition to being provided to the Court in searchable PDF format, also be provided to the Court as Native electronic documents on the basis that they contain information relevant to the issues that is not accessible from PDF files and which will be referred during the trial? For example, excel spreadsheets may contain information relevant to the issues that is not accessible from PDF files such as formula calculations. Has the document ID methodology been completely implemented by all parties? Complete implementation will ensure that each document is uniquely identified to avoid confusion during the hearing and to speed up the time involved in retrieving a document for display in the courtroom. Have all the documents in the court book that are "attachments" to "host" documents been included with their host documents? The digital court book should not contain any unattached documents. Does each submission refer to documents by their document ID and, if available, include a hyperlink to that Searchable Image via the document ID? Have people and organisations been referenced in a consistent way to facilitate searching for the Court and the parties?
	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? Consider how and when documents are to be provided for inclusion in the digital court book to ensure that during trial, documents will be available, avoiding any unnecessary disruption and delays associated with availability. Consider and advise the Court of any requirements to display proprietary material
	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? Check if the proposed software to support the digital hearing is acceptable to the judge and the Court's IT staff. Make sure the judge and their staff are comfortable with the functionality of the software, and a comprehensive demonstration have been undertaken before parties commit to any particular software application If the Court does not have the software, provide the necessary software to the Court, in a manner acceptable by the Court and its 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: Support: the extent to which adequate help desk and technical support will be available to the judge and his or her staff both during the trial and following the conclusion of the trial when the judgment is being written. For example, hours of availability, capabilities of the persons providing support and the phone and email contact details for obtaining support Training: the availability of training, user manuals, or other documentation for the judge and his or her staff Communication: proposed arrangements for the Court's Technology Services to liaise with the service provider etc. Capability: the experience of the proposed service provider in delivering eTrial services Technology Compatibility: the extent to which the proposed technology solution is generally acceptable to the Court's IT staff Make Good: any requirement for communications rooms, court rooms and other areas utilised by the service provider to be returned to their 'normal' state immediately following the conclusion of the digital hearing
	7. Have the parties adequately addressed the need to provide courtroom operator services? Is a suitably skilled courtroom operator required to be provided, by the parties, to retrieve imaged documents as they are referenced during the trial and make them visible on all 'court view' screens (note: in some case the Court may agree for this to be done by Court staff)

(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 agreed	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? Notice of animated evidence should be given to the Court and approved by a judge Animated evidence should be pre-recorded and presentation requirements made prior to it being presented Examples of animated evidence include: a video simulation the flow of water through pipes or it could an electronic capture of how a product is ordered online
	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: is the witness suitably prepared to view it? if being viewed electronically, can the witness adequately view the exhibit - ie. size of font large enough for reading?
	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.

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