Federal Court of Australia

Status:	Revoked
Date issued:	29 January 2009
Date revoked:	25 September 2009
Replaced by:	Practice Note CM 6 - Electronic technology in litigation
Version history:	25 September 2009 (CM 6) 29 January 2009 20 April 2000

1.         Introduction

1.1     This Practice Note replaces Practice Note No 17 issued on 20 April 2000.

1.2     Unless the Court otherwise orders, this Practice Note applies to any proceeding in which the Court has ordered that:

(a)     discovery be given of documents in an electronic format; or 
(b)     a hearing be conducted using documents in an electronic format.

1.3     It may be expected that an order of the nature mentioned in paragraph 1.2 will be made in any proceeding in which: 

(a)     a significant number (in most cases, 200 or more) of the documents relevant to the proceeding have been created or are stored in an electronic format; and 
(b)     the use of technology in the management of documents and conduct of the proceeding will help facilitate the quick, inexpensive and efficient resolution of the matter. 

1.4     Existing Court rules and Practice Notes governing discovery and other litigation processes continue to apply unless the Court or a Judge otherwise orders.  

1.5     Technical expressions used in this Practice Note and Related Materials are defined in the Glossary. 

1.6     This Practice Note and the Related Materials mentioned in paragraph 11.1 below are available from the Court’s web site at http://www.fedcourt.gov.au. 

2.       Purpose

2.1     The purpose of this Practice Note and Related Materials is to encourage and facilitate the effective use of technology in proceedings before the Court by:

(a)     setting out the Court’s expectations of how technology should be used in the conduct of proceedings before it; and 
(b)     recommending a framework for the management of documents electronically in the discovery process and the conduct of trials. 

3.       Principles

3.1     This Practice Note is to be applied in a manner that gives effect to the overarching purpose of the Federal Court’s Individual Docket System, which is:  the just resolution of disputes as quickly, inexpensively and efficiently as possible.

3.2     The Court expects the parties and their representatives to cooperate with and assist the Court in fulfilling the overarching purpose and, in particular, in identifying documents relevant to the dispute as early as possible and dealing with those documents in the most efficient way practicable.
 
4.       Application of these Principles

4.1     The Court expects the parties to a proceeding and their legal representatives to consider, at as early a stage in the proceeding as practicable, the use of technology in the management of documents and conduct of the proceeding. In particular, it is expected that consideration will be given to the use of technology for:

(a)     creating lists of discoverable documents;
(b)     giving discovery by exchanging electronically stored information;
(c)     inspecting discovered documents and other material;
(d)     lodging documents with the Court;
(e)     delivering Court documents to, and otherwise communicating with, each  party; and
(f)      presenting documents and other material to the Court during a trial.

5.       Efficient Document Management

5.1     This Practice Note and the Related Materials are based upon the following observations concerning efficient document management:

(a)     Electronic documents, including email, form an increasing proportion of Documents in proceedings before the Court.
(b)     Electronic documents must be managed efficiently to minimise the cost of discovery and the cost of the trial. 
(c)     Printing electronic documents for the purpose of discovery will generally be a waste of time and money.
(d)     Photocopying paper documents multiple times for the purpose of discovery will generally be a waste of time and money.
(e)     Wherever possible, parties should exchange documents in a usable, searchable format or in the format in which the documents are ordinarily maintained. The exchange format should allow the party receiving the documents the same ability to access, search, review and display the documents as the party producing the documents.
(f)      Lawyers should endeavour to use technology to ensure that document management is undertaken efficiently and effectively.
(g)     Parties should plan for appropriate discovery as early as possible in the proceedings. 

6.       Discovery plans

6.1     Before the Court makes an order that discovery be given using documents in an electronic format, it will expect the parties to have discussed and agreed upon a practical and cost-effective discovery plan having regard to the issues in dispute and the likely number, nature and significance of the documents that might be discoverable in relation to them.
 
7.       Document management

7.1     The Court expects the parties to meet and confer for the purpose of reaching an agreement about the protocols to be used for the electronic exchange of documents and other issues relating to efficient document management in a proceeding.

7.2     The Court may require the parties to address these issues at a Directions Hearing or a case management conference.

7.3     A checklist identifying issues that the parties are expected to consider is included in the Related Materials. 
 
8.       Document Management Protocols 

8.1     The Default Document Management Protocol is to be used in all proceedings to which this Practice Note applies and in which the number of Discoverable Documents is reasonably anticipated to be between 200 and 5,000, unless an alternative Document Management Protocol is agreed by the parties and accepted by the Court.

8.2     Where the number of Discoverable Documents is reasonably anticipated to exceed 5,000 Documents, the parties should agree to an Advanced Document Management Protocol in consultation with the Court. 

8.3     An example of an Advanced Document Management Protocol is included in the Related Materials.  
 
9.       Use of technology in a hearing

9.1     In a proceeding to which this Practice Note applies, the Court will expect the parties to use technology efficiently and effectively in preparation for, and in the conduct of, the trial. 

9.2     A checklist identifying issues that the parties are expected to consider is included in the Related Materials. 
 
10.       eRegistrars

10.1   In each registry one or more registrars have been nominated to provide advice and assistance in relation to the implementation of the Practice Note. These registrars are referred to as ‘eRegistrars’. Lawyers or parties requiring information or assistance about the application of the Practice Note or the use of technology in litigation in the Court are encouraged to contact an eRegistrar. Contact details for the eRegistrars can be found at http://www.fedcourt.gov.au. 
 
11.       Related materials

11.1   The following Related Materials are released with this Practice Note:

(a)     Pre-Discovery Conference Checklist
(b)     Default Document Management Protocol 
(c)     An example of an Advanced Document Management Protocol 
(d)     Pre-Trial Checklist. 

11.2   The Related Materials will be reviewed and updated by the Court from time to time in light of feedback from interested parties and changes in technology.   
 

M E J BLACK
Chief Justice
29 January 2009

Glossary to Practice Note No 17 and Related Materials

Attached Document means a Document attached to, or embedded in, a Host Document. See also Embedded Document.
 
CD-ROM means ‘Compact Disc – Read Only Memory’, a medium for the storage and exchange of Electronic Documents and Electronic Images.
 
Container means a store which contains Documents or other Containers. A Container may be:
(a)     an electronic file or directory.
(b)     an email box (or email store), such as a PST and NSF file, which contain emails, email attachments, tasks, notes and diary or calendar entries.
(c)     a compressed file, such as a ZIP file containing other files that may be extracted.
(d)     a hard copy folder or box.
A Container is not a Document and can not be a Host Document.
 
Court Book means an indexed collection of Documents to be relied upon at the hearing of a matter and will, unless the Court or a Judge otherwise orders, include:
(a)     the originating process;
(b)     all pleadings;
(c)     any affidavit or witness statement to be relied on at the trial (not those for any interlocutory purposes);
(d)     all particulars which have been furnished, whether in the form of a court document or a letter, and of the requests for those particulars; and
(e)     all documents that are to be tendered in evidence (arranged in chronological order).
 
De-Duplication means the process of identifying and removing duplicate Documents from a collection of Documents so that only 1 unique copy of each document remains.  A cryptographic hash function such as the Message Digest algorithm 5 (‘MD5 Hash’) may be used to generate a digital fingerprint for an Electronic Document.  The digital fingerprint of a Document can then be electronically compared against the digital fingerprint of any other Document to determine whether the Documents are exact duplicates. De-duplication may also be implemented by using a cryptographic hash function and referring to the Document Groups or context of the Documents being examined.
 
Discoverable Document means a Document that may have to be discovered pursuant to Order 15 of the Federal Court Rules or any orders of the Court.
 
Document means a document as defined in Order 1 rule 4 of the Federal Court Rules.  
 
Document Description means the set of data fields used to describe a Document pursuant to a Document Management Protocol.
 
Document Group means a Host Document and the Attached Documents associated with it.  For example, an email and any Documents attached to it constitute a Document Group, as does an Electronic Document and any Documents embedded within it.  However, a Container (such as a ZIP file) and the Documents contained in it do not constitute a Document Group.
 
Document ID (or Document Identifier or Document Number) means an alphanumeric sequence which uniquely identifies a Document within a collection of Documents.
 
Document Management means the manual and automated processes for the management of Documents during the course of a proceeding, including the identification, preservation, collection, processing, analysis, review, production and exchange of Documents.
 
Document Type means the Document Description data field containing the category or classification of a Document (e.g. Letter, Facsimile, Report, E-mail).
 
DVD-ROM means ‘Digital Versatile Disc – Read Only Memory’, a medium for the storage and exchange of Electronic Documents and Electronic Images.
 
Electronic Court Book means a Court Book in which the Documents are stored and managed electronically and displayed through computer equipment using specific software that facilitates the indexing, searching, filtering, referencing, display and management of the documents in the Court Book throughout the hearing.
 
Electronic Document means a Document or component of information that was originally created using a computer system, software application or database. This is often referred to as Electronically Stored Information (‘ESI’).  The Metadata embedded within an Electronic Document is considered part of that Document.  The definition of Electronic Document includes an email, email attachment or a Loose File.  A Container is not an Electronic Document for the purposes of Practice Note No 17 and the Related Materials.
 
Electronic Image means an electronic representation of a Paper Document or Electronic Document.  An Electronic Image may be a Searchable Image or an Unsearchable Image.
 
Electronically Stored Information (‘ESI’) – see Electronic Document.
 
Embedded Document means a Document that is embedded within an Electronic Document.  An Embedded Document is to be treated as an Attached Document, with the Document within which it is embedded being its Host Document.  A Document attached to an email is not an Embedded Document.
 
Host Document means a Document with one or more Attached Documents.  For example, an email is a Host Document and any Documents attached to the email (including any Documents stored in a Container that is attached to the email) are its Attached Documents.  A Container is not a Host Document.
 
List of Documents means the list of documents mentioned in Order 15 rule 6 of the Federal Court Rules.
 
Loose Document means an Electronic Document that is stored in its Native Form in a Container that is a file system or directory system but not an email box.  An email or Document attached to an email, even if extracted from the email box in which it was originally stored, is not a Loose File.
 
Malicious Software means computer code designed to cause damage, destruction or impairment to computer equipment, or the data stored on a computer, in part or in whole. 
 
Metadata is described as ‘data about data’.  In the case of an Electronic Document, metadata is typically embedded information about the Document which is not readily accessible once the Native Electronic Document has been converted into an Electronic Image or Paper Document.  Metadata may be created automatically by a computer system (‘System Metadata’) or may be created manually by a user (‘Application Metadata’).  Depending on the circumstances of the case, Metadata may be discoverable. 
 
Native Electronic Document (or Native Form) means an Electronic Document, stored in the original form in which it was created by a computer software program.
 
Objective Coding means the manual or automated review and classification of a Document, based on the objective elements of the Document.  
 
Optical Character Recognition (‘OCR’) means the computer-facilitated recognition of printed or written text characters in an Unsearchable Image.
 
Page Number Label means a label containing a unique Page Number that is placed on each page of a Document.  The Page Number Label may also include a machine readable barcode version of the Page Number.
 
Page Number means a sequence of alphanumeric digits determined in accordance with a Document Management Protocol to enable each page of each Document to be uniquely referenced.
 
Paper Document means a Document stored in paper form.  This does not include a printed version of an Electronic Document.
 
Party Code means a sequence of alphanumeric characters in a Document ID that uniquely identify a party to the proceedings.
 
Portable Document Format (‘PDF’) is an Electronic Image format.
 
Placeholder Page means a page that is inserted into a collection of Documents to represent a Document that, for whatever reason, has not been included in the collection of Documents.
 
Redaction means the process of rendering part of a Document unreadable.  It is sometimes referred to as ‘Masking’.  Redaction is typically used to render confidential or privileged portions of an otherwise Discoverable Document unreadable.
 
Searchable Image means an Electronic Image in which the text-based contents can be searched electronically.
 
Subjective Coding means the review and classification of a Document, based on the subjective elements related to the Document and the proceeding.  This activity is usually performed manually by reviewers with legal training.  
 
Tagged Image File Format (‘TIFF’) is an Electronic Image format.
 
Unattached Document means an Attached Document without a Host Document.
 
Unsearchable Image means an Electronic Image in which the text-based contents cannot be searched electronically.

Related materials


Pre-Discovery Conference Checklist

Default Document Management Protocol

An example of an Advanced Document Management Protocol

Pre-Trial Checklist

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