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Practice Note No. 105

REPEALED - Use of Technology in Civil Litigation


Date:
03/15/1999




    Introduction

    1. The purpose of this Practice Note is to provide for and encourage the use of technology in civil litigation in the Court. Practitioners requiring assistance in the appropriate use of technology are encouraged to communicate with the Law Society’s Information Technology Adviser. The benefits of a data base of discoverable documents are maximised when the parties agree to exchange information in agreed fields in an agreed format.

    2. Parties to civil litigation in the Court are encouraged to:
          (a) use databases to create lists of their discoverable documents;
          (b) give discovery by exchanging databases created in accordance with an agreed protocol;
          (c) exchange electronic versions of documents such as pleadings and statements; and
          (d) arrange for inspection of discovered material, and other material to be inspected, by way of images if appropriate.

    3. Where the parties have agreed that discovery should be given by exchanging electronic databases, they shall:

    (a) seek a direction as to the protocol to be used; and

    (b) before seeking a direction, endeavour to reach agreement on the protocol so that the direction may be made by consent.

    If the parties believe that they will be discovering more than 500 documents between them, they should consider exchanging discovery databases.

    4. This Practice Note provides guidance on the fields that the parties should consider using to exchange information electronically about their discoverable documents. Parties should feel free to agree on changes to the suggested protocol.

    5. The Court encourages parties to exchange electronic versions of all documents, as this will assist the parties to use technology to manage information more efficiently, and to provide the Court, in appropriate cases, with electronic versions of all documents filed in the Court, to supplement the hard copy documents filed with the Registry.

    6. The Court will expect the parties to agree on the appropriate media for exchange of electronic versions of documents and discovery databases.

    7. The Court may issue further practice directions in the future about such matters as the exchange of images of documents and the use of technology at trial. Parties are required to consider these issues from the commencement of proceedings.

    Electronic exchange of court documents

    8. Where a party serves a pleading, affidavit, statement, list of documents or interrogatories upon another party, the recipient may ask the first party to provide a copy of that document in an electronic format.

    9. The parties shall accede to reasonable requests for copies of documents in electronic format.

    10. Subject to 11 below, where a party provides a document in electronic format, that document shall contain the same text as the paper copy.

    11. Where a document contains annexures, the party will normally be expected to provide an electronic version of those annexures together with the electronic version of the host document, provided those annexures are documents created in electronic format by or on behalf of the party or its solicitors for the purposes of the litigation.

    12. Parties shall make all reasonable efforts to agree on such matters as:
          (a) the word processing format in which electronic versions of documents will be provided;
          (b) the methods by which electronic versions of court documents are to be exchanged;
          (c) the terms and conditions on which electronic versions of court documents are to be exchanged.

    In general, it will not be regarded as unreasonable for a party to provide documents in an electronic format subject to a condition that it is the responsibility of the recipient to test for viruses.

    13. The Court may direct a party to provide the Court with copies of court documents in an electronic format. Subject to 11 above, where a party provides the Court with a document in an electronic format, that document shall contain the same text as the paper copy. The party providing documents in electronic format shall provide appropriate written warnings about the need to test for viruses.

    Electronic exchange of discovery databases

    14. The parties are encouraged to consider ways to use technology to manage the discovery process more efficiently from the commencement of proceedings.

    The most appropriate use of technology will usually depend on the volume and categories of documents which the parties agree or the Court directs are to be discovered.

    Decisions about the appropriate use of technology will be better informed if the parties have identified the scope of discovery and the categories of documents likely to be discoverable.

    15. At directions hearings, the Court may make orders that parties:
          (a) meet to discuss how best to use technology to exchange information about their discoverable documents;
          (b) make written submissions on how best to use technology to:
                (i) exchange information about their discoverable documents; and
                (ii) manage information in the proceedings generally.


    16. The parties shall make all reasonable efforts to agree on such matters as:
          (a) the media to be used to exchange data concerning their discoverable documents;
          (b) how data should be delimited;
          (c) the format of the data eg whether it should be in ASCII text format or some other agreed format;
          (d) how the parties will record the date of service of the data and ensure that the party providing the data and the nature of the data may be readily identified eg by appropriate labels on any disks or other media used to exchange data;
          (e) the terms and conditions on which data will be exchanged.

    In general, it will not be regarded as unreasonable for a party to provide data on condition that the recipient test for viruses.

    17. As a general rule, by the second directions hearing, each party will be expected:
          (a) to have investigated the number and categories of documents likely to be discoverable by that party, taking into account any limits on discovery that may be agreed between the parties or the subject of a direction by the Court;
          (b) to have attempted to agree with the other parties on whether and how to use technology to exchange lists of their discoverable documents;
          (c) to be able to make informed submissions about whether and how technology should be used to exchange lists of their discoverable documents.

    18. Parties shall consider using the following fields to exchange information about their discoverable documents. Parties may agree to modify these fields to suit the requirements of the litigation. For example, if orders are made imposing confidentiality restrictions in relation to certain categories of documents, parties may need to add to these fields to ensure that confidential documents and the restrictions applying to them are identified.
     
     
    FieldData type and lengthNotes
    Document idText and Numbers (if appropriate)
    Length - depending on field structure
    The field may be broken into different components such as First
    Page and Last Page providing the parties agree. Generally the field or fields will comprise a four part number in the form AAA.NNN.NNN.NNNN where "AAA" represents an alphabetic shorthand for the party name. The other three sets of numbers should be used to suit the convenience of the parties. It may be useful if the first set is used to refer to an archive box number, the second to the number of the folder within the box, and the third to the page number. Rules for the numbering hierarchy should be agreed prior to discovery.

    The last page of a document should be included in swapping electronic material to ensure the integrity of documents is maintained.
     
     
    Attachments to documents should be separately listed and numbered. Attachments should be numbered sequentially following the host document. For example, a host document may be numbered XXX.001.001.0001 and its attachments would be numbered as XXX.001.001.0003, XXX.001.001.0004 and XXX.001.001.0005. Where there are two page attachments the first and last page numbers should be listed in the following sequence XXX.001.001.0003 - 0005.

    Every page of every document should be numbered. If there are to be any exceptions to this rule, they should be clearly identified prior to discovery.

    If imaging is to be used the parties can agree to any additional information about document identification.
    AttachmentsText & Number, Length -depending on the number of attachmentsContains first and last pages of each document physically attached to a discovered document. Does not include documents that are only referred to in a discovered document. Each attachment should be listed separately, with its own discovery number and details. Multiple entries to be separated by commas.
    Host Document NumberText and Number, Length depending on the document id. structure Contains First Page and - if agreed - Last Page of the host document to which an attachment is attached. Should never be multiple entries in this field, as each attachment should only ever have one host document.
    Document GroupText, 3HWA Host with attachment
    HNA Host no attachment
    ATT Attachment

    This field may be required if parties agree to swap image files.
    DateDate, 10dd/mm/yyyy - Date of document as it appears on the document in a date format with the day or month represented as "00" where it refers to a month or year.
    only rather than a specific date, eg, 01/01/1995, 00/01/1995 or 00/00/1995.

    If the document has no date this field should be "00/00/0000".

    If the date is incomplete this field should be completed as to the part or parts known and the unknown part filled with zeros eg, 01/05/0000.

    If documents have come from the US, the dates should be converted to DD/MM/YYYY format.
    If a group of documents is being discovered as a bundle, the value of this field should be the earliest date within the bundle of documents.
    Document typeText, 254 This field is completed using commonly received document types eg letter, memo, deed.

    Parties should agree on rules for document types prior to discovery.

    If the document has been faxed, this field should include "facsimile".

    If a group of documents is being discovered as a bundle, this field should be completed as "Bundle of document type".
    PrivilegeText, 6This identifies whether a claim of privilege is made over the document. The permissible entries in this field are "YES", "NO" and "PART". If this field is completed with "YES" or "PART", the basis of privilege field must also be completed.
    Basis of PrivilegeText, 50 (or combination of text and numbers)Identifies basis of privilege claim. Parties should agree how they will identify privilege claims. One possibility is to set out here the basis of the claim that the document is privileged eg, the section or sections of the Evidence Act.
    StatusText, 10"Copy" or 'Original' or "Fax". "Fax" should be used for a document that is either the original facsimile document (ie the document sent by the sender) or an original facsimile copy produced by the recipient's facsimile machine.
    AuthorText, 254 or as appropriatePerson or persons who wrote the document. To be completed using information on the face of the document. Last name First initial only eg. "Smith B". If more than one author enter as "Brown J, Jones J, ..." etc. If more than one addressee for one company, enter as "Brown J/Jones J/..." etc.
    Other ways of addressing multiple values can be agreed between the parties.
    Author OrganisationText, 254 or as appropriateOrganisation from which the document emanated. To be completed from information on the face of the document. Multiple entries to be separated by commas. Parties should agree on standard spellings or abbreviations for organisations.

    Other ways of addressing multiple values can be agreed between the parties.
    AddresseeText, 254 or as appropriatePerson or persons to whom the document is addressed. Includes persons to whom copies are circulated. To be completed from information on the face of the document. Last name First initial only eg. "Smith B". Multiple entries to be separated by commas.

    Other ways of addressing multiple values can be agreed between the parties.
    Addressee OrganisationText, 254 or as appropriateOrganisation receiving the document. To be completed from information on the face of the document. Multiple entries to be separated by commas. Parties should agree on standard spellings or abbreviations for organisations.

    Other ways of addressing multiple values can be agreed between the parties.
    PartiesText, 254 or as appropriateIdentifies parties to an agreement or other legal document (not correspondence). Multiple entries to be comma delimited.
    SourceText, 20 or as appropriateParties may find this field useful to identify documents that have been obtained from someone other than the party giving discovery eg documents obtained on subpoena or through some other compulsory process of obtaining access to documents.

    This field would identify the party from whom such documents were obtained.
    Non-paper recordText, 3This field should be used to identify information recorded using media other than paper, where the relevant information has not been printed out and discovered in hard copy form eg video and audio tapes, floppy disks and magnetic computer tapes. Permissible entries are "YES" and "NO".


    19. Parties shall consider how lists of documents shall be verified where data about those documents is to be exchanged electronically.

    Existing rules of court such as Part 23 rule 3 presuppose that a hard copy list of documents will be verified by affidavit. If a party believes that it is appropriate to dispense with verification of a hard copy list, it should approach the Court for an appropriate direction.

    As an alternative to verification of a hard copy list, parties may wish to consider a direction that the verifying affidavit identify the documents by reference to the medium by which the data was served and the date of service (eg documents described in the database contained on floppy disks served on the defendant under cover of letters dated 21 January, 24 February and 29 March 1999).

    20. Parties shall consider whether data relating to their discoverable documents should be provided to the Court (in addition to any hard copy list).

    21. If parties have used databases, or databases and images, to facilitate discovery and inspection, the parties should consider and make submissions about how best to use technology at the hearing.

    For example, the parties' discovery databases could form the basis for an index to the agreed bundle, or for the creation of a database of documents admitted into evidence and rulings on the admissibility of documents.

    More generally, parties shall consider:
          (a) the equipment and services (including appropriate hardware, software and additional infrastructure) that they and the Court may require at the trial; and
          (b) the arrangements that may need to be made between the parties, the Court and any third party service providers to ensure that appropriate equipment and services are available at the hearing.


    Chief Justice
    15 March 1999



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