PRACTICE NOTE No 127
Use of Technology in Civil Litigation
This Practice Note replaces Practice Note No 105 and will apply from 1 March 2004.
Purpose
1. The aim of this practice note is to
(a) encourage the use of information technology as a means of improving the efficiency of civil litigation in general;
(b) emphasise the court’s power to require the use of technology in particular cases or circumstances;
(c) offer guidelines on the matters parties in civil actions ought to take into account in deciding how to make use of technology;
(d) offer examples and suggested standards to assist parties in agreeing upon the extent and manner in which they will use technology to exchange information.
Encouraging the Use of technology
2. All parties in civil proceedings are required at all stages of their litigation to consider the prospect of using technology for the purposes of information exchange and at trial itself. In preparing a case for trial the parties are specifically encouraged to
(a) use electronic data 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;
(d) arrange for inspection of discovered material, and other material to be inspected by way of images if appropriate; and
(e) consider the use of electronic data at trial in accordance with the Court’s requirements.
Glossary of technical terms
For the purposes of a better understanding of this practice note, some definitions of technical terms appear in the annexed Glossary.
Court may direct parties
3. The Court retains the power to direct parties to use information technology in appropriate cases. Parties shall comply with any directions issued by the Court in relation to the use of technology and shall comply with any requirements published by the Court in relation to issues concerning the use of technology, such as document formats.
4. It should be noted that whilst this practice note is advisory in nature the Court may mandate the use of the technology standards it describes in cases where the parties fail to agree on exchange and presentation mechanisms within a reasonable time frame.
Electronic exchange of Court documents
5. Where a party serves a pleading, affidavit, statement, list of documents or interrogatory on another party, the recipient may ask the first party to also provide a copy of it in an electronic format.
6. The Court expects parties to accede to reasonable requests for copies of court documents in an electronic format. Before providing copies the parties shall make all reasonable efforts to agree upon:
(a) the word processing or other format in which electronic versions will be provided;
(b) the methods by which electronic versions will be exchanged; and
(c) any other terms and conditions of electronic exchange.
Document formats
7. Where appropriate the parties may wish to agree upon the preparation of 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.
Content of court documents
8. A court document provided by a party in electronic format shall contain the same text as the paper copy. Where a court document contains an annexure, however, the text of the annexure will be expected to be contained within the electronic copy only where the annexure was created for the purposes of the litigation by or on behalf of that party or that party’s solicitor.
Risk of computer viruses
9. Generally it will not be regarded as unreasonable for a party to provide documents in electronic format subject to a condition that it is the responsibility of the recipient to test it for viruses.
Providing electronic copies to the Court itself
10. The Court may direct a party to provide the Court with copies of court documents in an electronic format. A party who provides a document to the Court in electronic format shall provide appropriate written warnings about the need to test for viruses.
Electronic exchange of discovery lists and documents:
11. As a general rule the Court will expect the parties to consider preferring the use of technology to exchange information where they believe more than 500 documents between them will be discoverable. Decisions about the appropriate use of technology will be better informed if the parties have identified early in the proceedings the scope of discovery and the categories of documents likely to be discovered.
Agreeing by written protocol
12. Where the parties agree that discovery should be given by exchange of electronic data they should:
(a) endeavour to reach agreement early in the proceedings on the protocol to be used and the scope of that protocol; and
(b) seek either consent orders or directions from the Court, if agreement is not reached, concerning the terms of the protocol.
Directions by the Court
13. The Court may make orders that parties:
(a) meet to discuss how best to use information technology to exchange information about their discoverable documents;
(b) make written submissions on how best to use technology with respect to discovery and the management of information in the proceedings generally.
14. As a general rule, by the second directions hearing the Court will expect each party:
(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 are 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; and
(c) to be able to make informed submissions about whether and how technology should be used to exchange lists of their discoverable documents.
Technology checklist
15. In developing a protocol on electronic exchange the parties shall consider the matters described in the annexed Technology Check List. The checklist is a guide only and parties should feel free to agree on appropriate changes to it. However, if the parties are unable to agree on a protocol then the default options indicated in the checklist will apply as a minimum standard.
Recommended fields
16. The fields and associated guidelines described in the annexed Recommend Fields are those which ought to be used for the purpose of electronic exchange and which, in the absence of agreement to the contrary by the parties, may be mandated by the Court in a given case.
Verification of electronic lists
17. Each party shall consider how lists of documents shall be verified where data about those documents is to be exchanged electronically.
Orders to dispense with verifications by affidavit
18. Existing rules of Court presuppose that a hard copy list of documents will be verified by affidavit. Where a party believes that it is appropriate to dispense with verification of a hard copy list, that party should ask the Court for an appropriate direction.
Verification by reference to method of service
19. As an alternative to verification of a hard copy list, the parties may wish to consider asking for 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. For example, the affidavit may refer, in a hypothetical case, to: the documents described in the database contained on the compact disks served on the defendant under cover of letters date 21 January, 24 January and 29 March 2003.
Providing electronic lists of documents to the Court itself
20. The parties shall consider whether data relating to their discoverable documents should be provided to the Court in addition to any hard copy list.
Use of technology during a hearing
21. Where parties have used databases or databases and associated documents or 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 might form the basis of 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.
Equipment at hearing
22. More generally, the parties should consider:
(a) the equipment and services that they and the Court may require at the trial including appropriate hardware, software and additional infrastructure; 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.
12 February 2004 Chief Justice
This Practice Note is available on the Supreme Court’s website: www.lawlink.nsw.gov.au/sc
Technology Check List
Parties are encouraged to use this checklist to identify technology issues that may arise during proceedings. The default or minimum court options may be mandated in a given case if the parties cannot agree.
(** = default or minimum standard)
Pre-Trial
Document Exchange of Court Documents and Witness Statements
Hard copy only
Electronic Copy only
Hard copy and electronic copy** | Electronic Document Format
ASCII text file**
MS Word Version ____
WordPerfect version ___
XML
RTF
HTML
Other | Document Exchange Via
DX
Courier
Australia Post
Floppy Disk**
Electronic mail
CD Rom
Internet |
Discovery
Exchange of Document Lists
Hard copy only
Electronic Copy only
Hard copy and electronic copy** | Electronic Document List Format
Delimited ASCII text file**
Word processing format _________
Excel spreadsheet
XML
Other __________ | Document Exchange Via
DX
Courier
Australia Post
Floppy Disk**
Electronic mail
CD Rom
Internet |
Example Database Formats
MS Access
Lotus Notes
Filemaker Pro
MS SQL
Sybase
Excel Spreadsheet**
Oracle
Other |
Document Inspection Format
Hard copy only
Electronic/image of hard copy
Hard copy and electronic/image copy**
Non-paper record for example, video/audio tape, database, microfiche, etc
Other Medium _____________ | Electronic Image Formats
TIFF – Multi
TIFF – Single**
PDF
GIF
Other | Special Considerations
Redacting (masking)
Confidentiality
Other |
Trial
Exchange of Agreed Bundle/Court Book Indexes
Hard copy only
Electronic/image of hard copy
Hard copy and electronic/image** copy
Other Medium _____________ | Electronic Document Index Format
Delimited ASCII text file**
Word processing format
Excel spreadsheet
Other | Document Exchange Via
DX
Courier
Australia Post
Floppy Disk**
Electronic mail
CD Rom
Internet/Intranet |
Images may be scanned in at around 200 dpi. Any greater file size may be unworkable.
(b) Filename Structure
Images may be named identically to the relevant Document ID or according to the agreed folder structure. If images are named in accordance with the naming convention of the full document ID then the dots within the Document ID may be omitted (other than the dot preceding the file extension).
(c) Special Considerations
Consideration should be given to
· whether there are any special requirements, such as redacting (masking).
· the implications of using technology in respect of information that may be subject to confidentiality orders or undertakings.
(d) Recommended fields and default fields**
The Court encourages the use of the field definitions in the attachment – Recommended Fields. Among the Recommended Fields the following are the default fields, i.e. those which the parties will be expected to use as a minimum standard unless otherwise agreed or ordered:
· Document ID
· Date
· Document type
· Author/ Author organisation
· Addressee/ Addressee organisation
· Title.
* * *
Recommended Fields
Fields that are identified as default fields are those that ought to be used as a minimum standard and which, in the absence of agreement to the contrary, may be mandated by Court order in a given case.
| Field |
Data type and length |
Notes |
Document id
(Default field 1) |
Text and Numbers (if appropriate)
Length - depending on field structure | Each document should be uniquely identified. The field may be broken into different components such as First Page and Last Page providing the parties agree. The field or fields might comprise a four-part number in form AAA.NNN.NNN.NNNN where "AAA" represents alphabetic shorthand for the party name. The other three sets of numbers could 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 can be agreed prior to discovery and the above is to be used as a guide not the definitive form.
The parties should consider whether each page should be individually numbered or agree on some other satisfactory arrangement. If agreement is not reached then the parties should seek the Court’s direction.
If the parties agree not to number each page, consideration should be given to an additional field recording the number of pages in each document.
Attachments to documents can be separately listed and numbered. Attachments can 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.001.001.0002, XXX.001.001.0003 and XXX.001.001.0004.
If imaging is to be used the parties can agree to any additional information about document identification.
It is recommended that the document id match the image file name i.e. where the document id is AAA.NNN.NNN.NNNN then the image file name should be AAA.NNN.NNN.NNNN.tiff |
Attachments |
Text & Number, Length -depending on the number of attachments |
Contains 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 Number |
Text 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 Group |
Text, 3 | HWA Host with attachment
HNA Host no attachment
ATT Attachment
This field may be required if parties agree to swap image files. |
Date
(Default field 2) |
Date, 11 | Date can be inserted as:
DD/MMM/YYYY for example 05/Sep/1996
DD = Day
MMM = Month
YYYY = Year
Undated documents: = Documents with no discernible date should be coded to a standard agreed between the parties which the parties will recognise as "undated." For example, the date field may be left blank. (Where this option is selected the parties may choose to enter the word "undated" in an additional text field.) Alternatively, an agreed date format such as 01/Jan/1801 should be used. It is important to note that databases that use a Date Type format may not accept text such as 'Undated' or dates that include '00' in the field.
If there is no way of ascertaining the date of the document*
Documents with only the month and year (e.g. August 1997) can be coded with the first day of the month, the month and the year (e.g. 01/Aug/1997) and a 'Yes' an entry should be made in the next field - "Estimated Date". field.
Documents with the day and month but no year are considered undated. . For example a document dated 04/Apr will should be coded as "undated." as the year cannot be identified.
Documents with just the year (e.g. 1997) should be coded with the first day of January (e.g. 01/Jan/1997) and a 'Yes' entry should be made in the 'Estimated Date' field.
*If there is no way of ascertaining the date of the document, then the parties may agree upon what naming convention to use, for example, "Undated", or 00/00/0000, however, it should be noted that some database formats may not recognise these codes. |
Document type
(Default field 3) |
Text, 254 |
This field is completed using commonly received document types e.g. letter, memo, deed.
Parties should endeavour to create a list of agreed 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". |
Privilege |
Text, 6 |
This 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 Privilege |
Text, 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. |
Status |
Text, 10 |
"Copy" or 'Original' or "Fax". "Fax" should be used for a document that is either the original facsimile document (i.e. the document sent by the sender) or an original facsimile copy produced by the recipient's facsimile machine. |
Author (Default field 4) |
Text, 254 or as appropriate | Person 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 Organisation (Default field 4) |
Text, 254 or as appropriate | Organisation 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. |
Addressee (Default field 5) |
Text, 254 or as appropriate |
Person 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 Organisation (Default field 5) |
Text, 254 or as appropriate |
Organisation 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. |
Parties |
Text, 254 or as appropriate |
Identifies parties to an agreement or other legal document (not correspondence). Multiple entries to be comma delimited. |
Title (Default field 6) |
Text, 254 or as appropriate |
Title of a document such as “Report on Technology”. |
Source |
Text, 20 or as appropriate |
Parties may find this field useful to identify documents that have been obtained from someone other than the party giving discovery, e.g. 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 record |
Text, 3 |
This 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, e.g. video and audio tapes, floppy disks and magnetic computer tapes. Permissible entries are "YES" and "NO". |
Glossary
ASCII (American Standard Code for Information Interchange)
ASCII is the most common format for text files in computers and on the Internet. In an ASCII file, each alphabetic, numeric, or special character is represented with a 7-bit binary number
Database
A database is a collection of data that is organised so that its contents can easily be accessed, managed and updated
Delimiter
A delimiter is a character that identifies the beginning or the end of a character string (a contiguous sequence of characters).
Electronic Data
In computing, electronic data is information that has been translated into a form that is more convenient to move or process.
Field
A Field represents a column of data within a database. Each record (row) can be made up of a number of pieces of information and, therefore, consists of a number of fields. These fields may be displayed as a box to enter or display data (in a form or report).
GIF (Graphics Interchange Format)
A GIF is one of the two most common file formats for graphic images on the World Wide Web. The other is JPEG.
HTML (Hypertext Markup Language)
HTML is the set of "markup" symbols or codes inserted in a file intended for display on a World Wide Web browser.
Image
An image is a picture that has been created or copied and stored in electronic form, an electronic photocopy.
Medium
A medium is a third-party or element through which a message is communicated.
PDF (Portable Document Format)
PDF is a file format that has captured all the elements of a printed document. PDF is also an abbreviation for the Netware Printer Definition File but is not used in this document in this way.
RTF (Rich Text Format)
RTF is a file format that allows exchange of text files between different word processors in different operating systems.
SQL (Structured Query Language)
SQL is a standard interactive and programming language for getting information from and updating a database.
TIF or TIFF (Tagged Imaged File Format)
TIFF is a common format for exchanging raster (bitmapped) images between application programs, including those used for scanning images.
Virus
A virus is a piece of programming code inserted into other programming to cause some unexpected and, for the victim, usually undesirable event. Viruses can be transmitted by downloading programs from infected sites (including internet sites) or they may be present on a diskette received from an infected system.
* * *
