E-Discovery, Management & Exchange of Electronically Stored Information in Litigation

In Australia there are Practice Notes issued by both the Federal Court of Australia and State Supreme Courts to manage the use of electronic technology in litigation and the handling of discovery of requests of electronic evidence.

For example under the Federal Court Practice Notes, the parties to a proceeding and their legal representatives are supposed to consider at an early stage the management of documents and the conduct of proceedings. 

Parties are expected to consider the use  of technology for creating lists of dicoverable documents,  granting discovery by exchanging electronically stored information, inspecting discovered documents, lodging and delivery of court documents and the presentation of documents and other material to the court during a trial.

The Federal Court Rules also make recommendations addressing efficient electronic document management, and the exchange of documents in a useful format, being an  exchange format enabling a party receiving such documents the same ability to access, search, review and display the documents as the party giving discovery of such documents. Courts are able to order the management and exchange of all relevant electronic documents and emails, preferably in their native formats. 

The Practice Notes also provide that before making an order for discovery of documents in an electronic format, the court expects all parties to have discussed and agreed upon a practical and cost effective plan, bearing in mind the issues in dispute and the likely number, nature and significance of the documents that might be discoverable in relation to those issues.

The Court expects the parties to confer to also discuss the protocols to be used in the electronic exchange of documents, so that parties are prepared to address these issues at a directions hearing or case management conference.

It is only in massive cases where the number of anticipated discoverable documents exceeds 5,000 in number that the parties will have to come to an agreement on an Advanced Document Management Protocol in consultation with the Court.  Otherwise a Default Document Management Protocol applies which can be accessed here 

This Protocol requires document descriptions and naming conventions for each document exchanged between the parties and delivered to the Court in the form of a List of Documents. There is certain descriptive information to be included such as whether documents are subject to claims of privilege and/or confidentiality and the reasons for such claims, amongst other information.

The parties have to comply with a structure and format when exchanging and delivering documents to the Court which requires the use of spreadsheets. The Rules prescribe that parties are to avoid the conversion of native documents to paper and are to exchange them in the form of searchable electronic images. If provided or exchanged as searchable images, Native Electronic  Documents should be rendered into PDF, rather than TIFF (Tagged Image File Format). It is recommended that rendering native electronic documents directly to PDF format will result in minimised costs and inaccuracies associated with the OCR’ing of documents (Optical Character Recognition (OCR).

However the Rules recognise that certain documents inherently don’t lend themselves to rendering in PDF format, an example being spreadsheets and databases, and it is prescribed that these documents may be  exchanged or delivered to the Court as Native Electronic Documents or in another format agreed by the parties and the Court.

The Practice Notes are comprehensive and deal with the issue of the creation of colour versions of documents, prescribing that these will only be created if there is an evidential significance to seeing the colour in a document.  There are rules regarding the preparation of electronic courtbooks, and the electronic management of expert reports, submissions, contracts and other documents.

The Practice Notes are designed to govern the exchange and hearing of matters conducted by documents in an electronic format. There is also an eRegistrar which assist and guides parties in the conduct of matters involving electronic evidence.

To be prepared for litigation, it is important for legal and IT Departments to address the management of their electronic documents and records within their organisation.

Having an e-discovery strategy records management system in place, includes having an established information retention system using the support of appropriately qualified personnel before the need for e-discovery occurs.

Electronically Stored Information (ESI) needs to be managed which may include addressing issues of classification,  management, access and discovery requirements.

If organisations don’t commit to an electronic management system for e-Discovery they may not be equipped to respond to eDiscovery requests when required.

Developing organisational document record and management policies, document destruction policies and procedures are an important starting point. It is important to understand the requirements in responding to eDiscovery requests and to be able to justify decisions made regarding document retention and disposal.

An important part of improving discovery responsiveness is using appropriate and effective metadata and classification schemes, which are not only of high quality but which are internally consistent and aligned with e-Discovery requirements. Your organisation need to control the legal risks and costs of complying adequately with e-Discovery requests, in addition to appreciating the risks associated with information loss and the practical difficulties of information restoration.

Planning and preparing for e-Discovery can help reduce those costs, including the costs of searching and retrieving information. Using good search technology is part of the challenge of being able to efficiently retrieve electronically stored information.

The Federal Court of Australia’s Rules are based on the US  Federal Rules of Civil Procedure.

There is also a considerable amount of case law dealing with the exchange of electronic documents and the processing and compliance with discovery requests.

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