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NSW Supreme Court Practice Note - Electronic Discovery

The Supreme Court of New South Wales has issued a practice note on “use of technology” in litigation proceedings in recognition of the common and escalating use of electronically stored information (ESI) by business entities in modern practice.

It is common for the traditional discovery process to see parties overwhelmed with considerable quantities of paper records and information. This procedure, and subsequently the proceedings could be frustrated by the magnitude of documents and the costs involved in preparing and examining them. Efficient case management requires a party to strike a balance between failing to discover significant and relevant material with the costs involved in scrutinising each and every document tendered. Consequences of an uneven balance may prejudice a party either by not producing sufficient evidence to substantiate their claim or having to incur substantial costs to discover lengthy evidence that ultimately defeats the final monetary award.

Nowadays, documents, correspondence and information are seldom stored in hard copy form. The widespread use of computer systems and electronic storage systems mean that the majority of discoverable information is stored in data format. Hence, significant time and costs are avoided if discovery of relevant material is provided in their original electronic form. Furthermore, the use of technology has enabled discoverable material to expand from traditional literary information to audio and visual media such as voicemail, computer files, internet protocol communications and instant messaging.

Discoverable documents can be served by delivering them in compact storage media such as CD-Rom’s or other portable electronic storage devices replacing boxes of its equivalent in hard copy.

Information previously inaccessible may now be discovered, such as meta-data. Meta-data is descriptive information about a file or its content which is inaccessible or hidden when a hard-copy is provided. This includes the common properties of the file such as: author, date last assessed, date last modified and print logs. More complex data could include data or records that have been already been erased in the computer system, but may still be “retrieved” from the storage device. Electronic discovery provides more details and particulars to the other party which could not be accurately obtained by the literary process; furthermore, searching for relevant material is also much more efficient with the aid of appropriate electronic software or devices which allow searches to scan and identify files with associate keywords, terms or relevant data. Files and documents can also be arranged by date, name or author at ease to create a comprehensive database of discovered documents.

As a general rule, the Court will prefer the parties to use technology to exchange information where they believe more than 500 documents will be discoverable between them. The Court may also make orders directing the use of technology.

The introduction of technology into the Court process is relatively recent and still in its developing stages, hence the practice notes place great emphasis for both parties to discuss and consent to the most efficient and appropriate method of providing electronic discovery. The practice note merely offers a checklist and protocol as a minimum threshold on what discoverable electronic material should include.

Electronic discovery has already been introduced into litigation at the Federal level. It has been confirmed that the Supreme Court’s recognition of these procedures will flow down to the District and Local Court’s in due course.

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