No. 17.
Guidelines for the use of information technology in litigation
in any civil matter
PART 1 - DISCOVERY
Introduction
1. The primary purpose of this Practice
Note is to encourage the use of information technology
during the discovery process in civil litigation in
the Court. But parties are also encouraged to consider
the use of information technology during trial. Parties
are encouraged to consider these issues from the commencement
of proceedings.
2. The Court may issue further Practice
Notes about the use of information technology during
discovery and at trial. A benefit of an agreed protocol
for exchange of electronic data during discovery is
the more efficient use of information technology at
the hearing.
3. Parties to any civil proceeding
are encouraged, where appropriate, to:
(a) use electronic data to create
lists of discoverable documents;
(b) undertake discovery by exchanging electronic data
created in accordance with an agreed protocol;
(c) exchange electronic version of documents such
as pleadings and statements;
(d) arrange for inspection of discovered material
by using electronic data, including gfx, where appropriate;
and
(e) consider the use of electronic data at trial.
4. If the parties believe that they
will be discovering more than 500 documents between
them, they are encouraged to agree, before commencement
of discovery, upon a protocol for exchanging documents
and indexes in electronic format.
5. Where the parties have agreed
that discovery should be undertaken by exchanging documents
and indexes in electronic format, they are encouraged
to:
(a) endeavour to reach agreement
on the protocol to be used;
(b) seek a consent order from the Court with respect
to agreed protocol to be used; or
(c) seek a direction from the Court as to the protocol
to be used if parties cannot agree.
6. Where parties agree to decide
on a protocol for exchanging electronic data, the protocol
should include:
(a) the exchange of Court documents
and statements in electronic format;
(b) the exchange of discovery lists and documents
in electronic format (including gfx, where appropriate);
(c) the appropriate medium for exchange of electronic
data during discovery:
(d) the use of technology at the trial.
7. This Practice Note provides assistance
for the parties to agree upon a protocol and guidance
on how to collect electronic data.
8. Parties may find the Technology
Check List set out in Annexure A useful to define the
information technology protocols to be agreed upon during
the course of proceedings.
10. The Court also encourages parties,
in appropriate cases, to deliver the Court documents
in electronic format to the trial Judge's associate
prior to the hearing. These will supplement the hard
copy documents filed with the Registry.
11. Technical terms used in this
Practice Note are defined in the Glossary at Annexure
C.
Electronic exchange of court documents
12. Where a party serves a pleading,
affidavit, statement, list of documents or interrogatories
upon another party, the recipient may ask that party
to provide a copy of that document in an electronic
format.
13. The Court expects parties to
accede to reasonable requests for copies of documents
in an electronic format.
14. Subject to 16 below, where a
party provides a document in electronic format, that
document must contain the same text as the paper copy.
15. Where appropriate, the parties
may wish to prepare a document in a structured format,
such as HTML, so that hypertext links can be made where
appropriate. For example, if a document refers to a
Document ID, a hypertext link can be made to the relevant
document image.
16. 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.
17. The Court expects parties to
make all reasonable efforts to agree on such matters
as:
(a) the format in which electronic
versions of Court 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.
18. 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.
19. The Court may direct a party
to provide the Court with copies of Court documents
in a specified electronic format. Subject to 16 above,
where a party provides the Court with a document in
electronic format, that document shall be in the same
format and contain the same text as the paper copy.
The Court expects the party providing documents in electronic
format to provide appropriate written warnings about
the need to test for viruses.
Electronic exchange of discovery
lists and documents
20. The parties are encouraged, from
the commencement of proceedings, to consider ways to
use information technology to manage the discovery and
inspection process more efficiently.
21. The most appropriate use of information
technology will usually depend on the volume and categories
of documents that are to be discovered. That in turn
may depend on any agreement between the parties, or
any direction from the Court, limiting the scope of
discovery.
22. 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.
23. At directions hearing, the Court
may make orders that parties:
(a) meet to discuss how best to
use technology to exchange information about their
discoverable documents or imaged copies of the documents;
(b) make written submissions on how to best use technology
to:
(i) exchange information about
their discoverable documents or imaged copies of
the documents; and
(ii) manage information in the proceedings generally.
24. The Court will expect the parties
to make all reasonable efforts to agree on such matters
as:
(a) the medium to be used to exchange
data concerning discoverable documents and/or images
of the documents;
(b) how data should be delimited;
(c) the format of the data (for example, whether it
should be in ASCII text or some other agreed format);
(d) how the parties will record the date of service
of the electronic data and ensure that the party providing
the data and the nature of the data may be readily
identified (for example, by appropriate labels on
disks, CD-Roms or other medium used to exchange data);
(e) the terms and conditions on which the data and/or
images will be exchanged.
25. In general, it will not be regarded
as unreasonable for a party to provide electronic data
on the condition that it is the responsibility of the
recipient to test it for viruses.
26. As a general rule, at the next
directions hearing after the use of information technology
has been raised, parties will be expected:
(a) to have ascertained 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
if a direction by the Court;
(b) to have attempted to agree with each other party
on whether and how to use technology to exchange lists
of discoverable documents and/or imaged copies of
documents;
(c) to be able to make informed submissions about
whether and how information technology should be used
to exchange lists of discoverable documents and/or
imaged copies of the documents.
27. Parties wishing to use a database
to record and exchange discovery data may refer to the
table in Annexure B. This sets out a list of fields
that could be included in such a database for both discovery
and case management purposes. Parties should feel free
to add, modify or disregard the suggested fields to
suit the requirements of the litigation.
28. Existing rules of court presuppose
that a hard copy list of documents will be verified
by affidavit. If a party believes that it is appropriate
to dispense with the verification of a hard copy list
or to adopt some other means of verification, it should
apply to the Court for an appropriate direction.
29. Parties should also consider
the possibility that data relating to their discoverable
documents can be provided to the Court electronically
(in addition to any hard copy list).
Technology for the hearing
30. If parties have exchanged electronic
data by electronic means to facilitate discovery and
inspection, they should also consider and make submissions
to the Court regarding how best to use information technology
at the hearing.
31. For example, the parties' electronic
data could form the basis for an index to an agreed
bundle, for lists to assist with the tendering process,
or for the creation of a database of documents admitted
into evidence and rulings on the admissibility of documents.
32. More generally, parties should
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.
