Technology in the Court Room - 2001 - [Friend or Foe?]
Technology in the Court Room - 2001 - [Friend or Foe?]
By Justice Clifford Einstein*
The commercial litigation landscape over the last 40 years
A short survey of the commercial litigation landscape over the last forty years will closely show a dimensional change in the scale of commercial litigation. Prior to the mid-1970’s the number of really large commercial suits were relatively few and far between. One can call to mind in this period cases such as Pacific Acceptance* Supreme Court of New South Wales. The author acknowledges his debt to Ms Lauren Sharp for her assistance in drafting sections of the paper.
Pacific Acceptance Corporation Ltd v Forsyth (1970) 92 WN (NSW) 29 (Moffitt J).
(2 years), the Rheem Litigation American Flange and Manufacturing Inc v Rheem (Australia) Pty Ltd (unreported, Myers J, 10
February 1970)), and see (1963) NSWLR 1121, (1963) 80 WN NSW 1295, [1965] NSWR 193.
(3 years), BP v Nabalco BP Australia Limited v Nabalco Pty Limited (unreported, Sheppard J, 8 July 1976), and see Privy
Council Report (1978) 52 ALJR 412
and the Bayer Litigation The judgment of Myers J in the Bayer litigation is unreported and the subject of a suppression
order.
(15 months).
From roughly the mid-1970’s the number of such suits rapidly escalated. Cases such as United States Surgical Corporation United States Surgical Corporation v Hospital Products International Pty Ltd (1982) 2 NSWLR
766 (McLelland J).
(approximately 13 months), Tradestock Trade Practices Commission v TNT Management Pty Limited (1985) 58 ALR 423 (Franki J).
(approximately 1.5 years), Spedley Spedley v Jones & Ors (Supreme Court of New South Wales, Commercial Division-settled).
, AWA AWA Ltd v Daniels t/as Deloitte Haskins & Sells (1992) 9 ACSR 383 (Rogers CJ in Comm Div);
Daniels & Ors v Anderson & Ors (unreported, New South Wales Court of Appeal, Clarke, Sheller
Powell JJA, 15 May 1995.
, Tourang, Fairfax, Waterhouse Hagan and others v Waterhouse (1992) 34 NSWLR 308 (Kearney J).
(approximately 12 months), Giant Standard Chartered Bank of Australia v Antico (1994) 35 NSWLR 588 (Hodgson J).
, Amann Amann Aviation v Commonwealth (1991) 100 ALR 267 (Beaumont J) and see Full Federal Court
(1990) 92 ALR 601.
, Estate Mortgage JW Murphy and PB Allen as trustees of Meridian Investment Trusts (Nos 1-6) v R A Lew & Ors
(claim for approximately $800 million)
, Linter Allstate Life Insurance Co v ANZ Banking Group Limited (Lindgren J – Federal Court
of Australia – March 1996)
, State Bank State of South Australia and Sate Bank of South Australia v KPMG Peat Marwick and Touche
Ross (clam for in excess of $1.5 billion).
, and most recently Super League and Idoport Idoport Pty Ltd v National Australia Bank and Ors
mark the larger litigation landscape.
The increase may be due not only to the increasing complexity of commercial affairs over that period and to the proliferation of statues regulating the conduct of such affairs, but also to such mundane factors as the vast increase in the documentation (electronic or otherwise) of transactions.
At the same time a large but less well publicised number of commercial arbitrations, have been conducted. These arbitrations conducted under the aegis of the Commercial Arbitration Act, 1984 are private in nature and become public knowledge usually only when some feature is litigated before the Commercial Division of the Supreme Court.
Examples of such arbitrations in recent years include Commonwealth v Cockatoo Dockyard, IBM IBM Australia Ltd v National Distribution Services Ltd (1991) 22 NSWLR 466., Leighton v South Australian Superannuation Board.
The gradual shift from hard copy volume
Clearly the last forty years have seen a paradigm shift in the conduct of major litigation. The practice of handwritten briefs to counsel and of the tender of slim bundles of selected and highly relevant material has given way to 'trolley litigation'-the hallmark of which is voluminous documentation.
Much of the blame may be fairly leveled at a number of factors including the advent of the photocopier; the failure of the legal profession to focus on the substantial issues at the heart of any piece of litigation and the expansive definition of relevance to be found in section 55 of the Evidence Act (1995).
My own view is that the shift in litigation from the adducing of oral evidence in chief to the adducing of that evidence in written form whilst on the one hand of obvious assistance in certain ways, has very often led to substantial inefficiencies by greatly contributing to the volume of material deployed in civil litigation. The witness in 2001 may be expected to spend days or even weeks and in some cases months, closeted with legal advisers who will painstakingly turn up every document, e-mail, facsimile, note, diary entry or timesheet of possible relevance not only to the central issues but also to the most marginal of issues. The witness’ affidavit or statement will be drawn up aided by such materials, the ultimate product being likely to represent, as one would expect, a carefully constructed reconstruction of the events in question with an eye to putting these events into an order and in language calculated to furthering the case of the party calling such witness. This is not to say for a moment that such an affidavit or statement will be otherwise than a truthful best attempt by the witness to set out his or her evidence in written form. Whether that may or may not be said of any particular witness in any set of proceedings must depend upon the cross-examination of that witness and the ultimate adjudication by the court as to the credit of the witness based upon all the evidence. The short point is that the affidavit or statement will often be found to have covered very many of the most peripheral of points which are so far from the point in issue that the prudence of including them is called into question.
This is not to say that the current practice for example in the Commercial List of requiring written statements is necessarily ripe for being revisited. However it does suggest that the court should be ever conscious of:
(1) the overriding purpose of the Rules which is to facilitate the “just, quick and cheap resolution of the real issues” in civil proceedings. The overriding purpose clause imposes an obligation on the Court to give effect to the overriding purpose when it exercises any of its powers.
(2) the general discretion to refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might cause or result in undue waste of time [Evidence Act 1995 section 135 (c)]
The Technology Courtrooms in the Supreme Court
Two courtrooms have been set up in the Supreme Court to handle cases appropriate for advanced technological administration. The courts are Court 10A and Court 12A. Idoport v National Australia Bank Ltd and others is currently being heard in court 12A. The Glenbrook inquiry was heard in court 10A.
The central focus of this paper is to explain some of the experiences of the court in dealing with the Idoport litigation, for obvious reasons, in terms only of the features and functions which use of the Technology Court has permitted. The decision to order the use of the Technology Court is now reported at 49 NSWLR 51; [2000] NSWSC 338.
Before turning to the detail of what the Technology Court comprises it is convenient perhaps to refer albeit briefly to the Idoport litigation simply to make the point that the volume of materials which require to be accessed has to be seen to be believed. There are three sets of proceedings being heard together. The pleadings are extensive. Discovery has been extensive. The number of statements put forward and arguably to be read and relied upon by the respective parties is in excess of 170. Up to this point in time the court has marked approximately 550 documents [in many cases being folders and in some cases being sets of folders] for identification. At present there are more than 400 folders of courtbook materials, a deal of which will no doubt be sought to be tendered as exhibits during the course of the hearing. More than 50 interlocutory judgments have been delivered up to this point in time and there are literally hundreds of notices of motion, submissions and ancillary materials related to the main proceedings or to interlocutory applications. A large number of witnesses are to be called. The case has now proceeded for more than one year in terms of the final hearing and is anticipated to continue well into 2003. There are more than 11,000 pages of final hearing transcript to this point in time. The pre-hearing transcript is also extensive.
Clearly enough the unusually large and complex nature of the proceedings, (central issues in respect of which deal with aspects of technology), required an innovative approach to management of the proceedings. Both parties, as I understand the position, have had advice in relation to the best mode in which to set up their respective camps to interface with the Technology Court and the courtbook. Conventional techniques of document management and trial coordination necessarily gave way to the high tech functionality available at the time. Looking back, in some ways it seems to me almost impossible to imagine how the case could have been conducted without use of the Court.
Prior to the commencement of the hearing the parties and their advisers had very close consultations with the Court’s IT section overseeing the setting up of the Technology Court for the hearing. An outside project manager was retained and has played and continues to play an important part in assisting the parties as well as the judge on numerous aspect ongoing hearing. The Court’s IT section directly supervises every aspect of the use of the Technology Court. The head of the Court IT section has the direct responsibility of ensuring that the Technology Court functions efficiently. This has meant from time to time a special drain on the resources of the Courts IT section.
The Technology Court: what does it involve?
The Technology Court is comprised of a number of features and functions that work together in an integrated and cohesive manner. The sum of the parts is equal to less than the whole, resulting in a powerful tool which has greatly enhanced the efficiency and fluidity of the trial process.
The following section will provide an in-depth consideration of each of these parts, and the associated advantages and disadvantages that have been found to exist:
a) The Ringtail Courtbook Database
The Ringtail Database is an electronic, online database which stores the majority of documents associated with the proceedings in a centralised, easily accessible manner. The database is available to all participants in the hearing (inside and outside of the courtroom); and is password protected.
The Database contains indexed lists of the following categories of documents:
· the Courtbook;
· witness statements;
· past and current transcripts of the proceedings;
· real-time transcript of the proceedings;
· documents marked for identification;
· judgments;
· pleadings;
· calendars and so on.
The most vital category of documents is the first item mentioned in this list: the Courtbook. The Courtbook is a massive collection of materials put together by each of the parties and provided to the Court in both hard copy and electronic formats. It is intended that the documents housed within the Courtbook will be referred to by the parties during the course of the proceedings, and as to many documents, no doubt eventually tendered as exhibits.
It is important to note that whilst the storage and deployment of electronic documents plays a vital role in the day-to-day administration of the case, it has been necessary for each of the parties as well as myself to also maintain a hard copy version of each of these documents. In my view, the current state of technology simply does not go far enough in facilitating a completely paperless trial and the need to view and mark actual documents cannot be over-emphasised. This is partly due to the particularly complex nature of the proceedings, but is also associated with the general need to view many documents in their entirety rather than page by page.
As a result, the paper documents associated with this case require corridors of shelving in around my chambers, the courtroom and even my home. Furthermore, there is a great need for physical document management and updating of paper as the case progresses by all involved.
The Database has a wide variety of uses and functionality, some of which include:
i) Document management
Perhaps the most fundamental function of the Database is its powerful document management capabilities. The sheer size and scope of the case have made this centralised “storage house” of categorised information an invaluable tool. The database thereby allows the participants to keep an accurate and ongoing record of past as well incoming documents.
ii) Viewing and printing documents
The majority of documents listed and categorised within the Database have been scanned in as images or text. In this way, users are able to access most of the documents on their screen within seconds. They can also print individual pages or complete documents if the need arises. These functions are especially useful in a case where the location of hard-copy documents is often a time consuming process.
iii) Centralisation and standardisation
The standardisation of document categorisation and storage within the Database means that participants can maintain meaningful communication between themselves in relation to the vast sea of information. In other words, by using the same tool, everyone is able “speak the same language” and thereby exchange information in an efficient and useful manner.
iv) Searching tools
An important feature of the Database is the ability to quickly access specific classes of information from an enormous pool of data. Users can perform powerful Boolean searches within certain categories of documents in order to sort the information and locate materials relevant to certain aspects of the case. For example, a user is able to search through the entire collection of the past transcript pages to find all references to certain word or phrase.
v) Hypertext linking
Another useful aspect lies in the capacity to link various documents stored within the database with other documents of relevance. For example, where a witness refers to a Courtbook page in his or her witness statement, hypertext links may be inserted into the statement, allowing the user to “click” and “jump” to the relevant Courtbook page. Users are thereby able to move back and forth between interconnected documents and gain speedy and effective passage through the intricacies of the case. Links may be created by users for their personal use, or can be inserted by the project manager into the global database for all to see.
vi) Public view mode
The Database has a “public view” option that enables the court officer to display documents on the screens of each PC logged in at that time. This enables everyone to see the same image before them, and thereby enhances communication during hearing time.
vii) Notes and bookmarks
The Database also allows individual users to place bookmarks and make notes at specific points of the transcript of proceedings. The point in the transcript where the bookmark or note has been made is then highlighted for future identification, and the user is able to search or browse through these markings at a later stage. The bookmarks and notes are personal to the user who makes them, and cannot be viewed by users with a different login name.
b) Court documents accessible via CD ROM and email
There are a number of documents relevant to the proceedings that are not electronically stored in the centralised database system. It has therefore been my practice during the proceedings (pursuant to Practice Note 105) to direct the parties to email such documents to my associate in addition to receiving them in their hard copy counterparts. For example, receiving an electronic copy of written submissions assists me during judgment writing as I am able to copy and paste sections of the document directly into my judgment and thereby save a great deal of time and energy.
In addition, the project manager maintains and distributes an up-to-date collection of witness statements stored as text files on CD ROMs. This procedure has been necessary because some of the witness statements on the Database are stored as images and cannot be manipulated and inserted into judgments where required.
c) Use of PCs in the court room
An important feature of the Technology Court is the ability of participants to use the Ringtail database, email, the internet, Microsoft Office and other software during court time. A series of networked computers and laptops line the bench and bar of the courtroom allowing participants to make electronic notes, communicate with their offices and so on. To take my staff as an example, my research assistant is able to sit beside me and assist with the administration side of the proceedings whilst concurrently continuing with her research tasks. She is also able to access online legal databases such as Austlii and thereby retrieve and print authorities as they become relevant to the proceedings. These facilities make for a highly efficient working environment, especially when one considers the extensive hours spent in the courtroom during this case.
Furthermore, most of the computers situated in the courtroom are connected to a “V-Net” button which allows the user to switch between their local computer and the “public view” mode often utilised in the Ringtail Database (as previously described). This allows users to alternate between their own private work and the documents being shown to the court at that time.
d) Cross examination by reference to electronic documents
It was originally envisaged at least from the plaintiff’s side of the record, that during cross-examination, the witness would be taken to the Courtbook documents in their electronic form as stored on the Database. The defendants made plain that their approach was almost certainly to be one of cross-examining by reference to hard copy. As necessary, a separate set of the hard copy Courtbook was to be made available to the witness. For these purposes, a stand-alone monitor was set up beside the witness stand; networked to the Database and operated by the Court Officer; an extra-large monitor was specifically chosen to enable an A4 document to fit onto the screen in its actual size. This set-up was thought to have the clear potential of saving time and effort for the cross-examiner.
Up to this point in time, certain of the documents referred to have often been of real length, and even with shorter documents cross examining Counsel has elected to take the witness to the document in its entirety rather than page by page on the monitor. Furthermore, witnesses are unable to scroll through the documents themselves, and must communicate with the Court Officer to do this for them. The relaying of such instructions has often found to be burdensome and slow; and to date, all of the witnesses who have been cross-examined have primarily made use of the hard copy documents. The matter remains dynamic and the Court has the power to give such directions in this regard as may be necessary.
e) Court reporting and real-time transcript
A private court reporting company has been contracted to transcribe the Idoport proceedings. The court reporting is especially fast and accurate, and multiple copies of the day’s transcript become available only hours after the court has adjourned.
Another powerful tool available is the real-time feed of transcript running simultaneously to actual proceedings as they occur. This feature is especially useful when following long and complex cross-examination and legal argument; allowing one to listen to and read the exchanges as they take place. Moreover, complicated questions asked of witnesses may be repeated to them immediately.
f) VCM
VCM is an electronic corporate messaging service which allows my staff and I to communicate, chat and send files to one another at the touch of a button. VCM has been installed on each of our PC’s in chambers and in the courtroom, and also connects us to the court officer and a Supreme Court IT Consultant. Using this facility, I am able message my staff in chambers or in court when something is required of them without disrupting the proceedings. Being “on-call”, my research assistant and associate are therefore able to work in chambers during court time, increasing their efficiency to a large extent.
g) Videolinking
The Technology Court is also set up to facilitate videolinking and telephone conferencing.
h) IT Court Officer
The day-to-day running of the Technology Court relies heavily upon the employment of a Court Officer with specialised IT training. Whilst fulfilling his traditional role of swearing in witnesses and passing documents between the parties, the Court Officer is also the central operator of the Ringtail Database system. More specifically, he is responsible for administering the public view mode and for dealing with technical glitches as they occur.
Practice Note 105
On 15 March 1999, the Chief Justice of the Supreme Court of NSW issued Practice Note Number 105 entitled, “Use of Technology in Civil Litigation”. The purpose of the Practice Note is stated as being:
“to provide for and encourage the use of technology in civil litigation in the Court.”
The Practice Note encourages such use of technology in two major areas: discovery and the exchange of court documents.
a) Discovery
Parties are encouraged to use databases to create lists of discoverable documents and give discovery by exchanging databases. They are also encouraged to allow inspection of discovered material by way of images if appropriate.
Under the Practice Note, parties are recommended to consider the exchange of discovery databases where more than 500 documents are to be discovered between them. From the commencement of proceedings, parties are also encouraged to consider other ways in which technology can be implemented in managing the discovery process; the methods chosen will invariably depend upon the volume and categories of documents to be discovered.
Once this course has been decided upon, the parties must reach some agreement as to a number of matters including the media, data formats and terms and conditions to be employed. The Practice Note provides guidance as to standard fields and formats that may be utilised by the parties. Once the parties have agreed as to the protocol to be applied, they are required to seek a direction (by consent) in relation to these matters.
At the initial directions hearing, the Court may order a meeting between the parties in order to discuss the best way forward; and/or that parties may address written submissions concerning the best use of the technology available and management of information generally.
By the second directions hearing, the parties are expected to have investigated the nature of the discoverable documents, to have attempted to agree and to put forward informed submissions regarding the way in which technology will be utilised during the discovery process.
Where the discovery process is to be facilitated in this way, parties are further encouraged to consider ways in which technology may be implemented throughout the entire proceedings; including the use of equipment, services and arrangements between the relevant parties.
b) Exchange of court documents
The Practice Note also encourages parties to exchange electronic versions of other documents; and to allow inspection of these documents by way of images. These recommendations are aimed at increasing efficiency for the parties, as well as providing the Court with electronic access to relevant documentation.
Parties are required to agree upon a number of matters including word processing format, the method of exchange and relevant terms and conditions.
As a result, where a party serves pleadings, affidavits, statements, lists of document or interrogatories upon another party, the recipient may request a further electronic copy of the document. Parties are required to accede to reasonable requests. Moreover, the Court may direct a party to provide it with electronic copies of court documents.
Evaluation of the Technology Court
It is important to bear in mind that the Idoport litigation still has a considerable period of hearing time remaining. Although use of the monitor for cross-examination has been fairly sparse up to this point in time, that form of use has certainly occurred. From time to time the witness has been entitled to view the real-time transcript or previous day's transcript on the monitor. But it is certainly the case up to this point in time that hard copy has been used very often in precisely the same way as hard copy is used in conventional proceedings. As the hearing progresses, one or both parties may well find that with particular witnesses it becomes possible to use the monitor far more often for cross-examination purposes. The matter remains dynamic.
To my observation notwithstanding the fact that up to this point in time use of the monitor in showing the witness documents through cross-examination has been fairly sparse, it is still clearly the case that the Technology Court has given huge benefits in terms of an overall increase in the efficiency and organisational techniques presumably enjoyed both by the parties as well as by the Court. A paradigm shift takes place when the parties and the judge have immediate access to a database which includes the enormous amount of information needed by the parties and the court in the everyday administration of the proceedings. The simplicity of being able at a seconds notice to access any pleading, any statement, any page of the transcript, any judgment, many of the documents marked for identification, as well as the hundreds of thousands of documents reposing in the courtbook itself provides elegant testimony to the efficiencies achieved. Tools such as VCM, real-time transcript, the Ringtail Data base and PCs in the courtroom have contributed to the speedy management of the day-to-day hearing. My own experience has been that the Technology Court system in place has been of immense use both inside the courtroom as well as in chambers or at home when writing judgments or otherwise keeping a detailed note of the evidence or submissions.
Hence whilst a purist might suggest that in the absence of a wholly paperless courtroom, the employment of the ideal Technology Court has certainly not been achieved in the Idoport litigation, I prefer to take a more pragmatic approach to the evaluation of that courtroom believing that it is misconceived to approach the topic with an "all or nothing" perspective. The use of a centralised database has been the most significant of steps forward and this regardless of the fact that hard copy documents are often used in tandem and often used as the sole source of materials.
Appellate Courts and technology
Clearly the nature and function of appellate court proceedings are fundamentally different to that of the trial court and they must therefore be treated accordingly. On the other hand there are certain sets of proceedings where appellate judges may be assisted by access to an electronic database of the type used at first instance. Upon the assumption for example that any judgment in the Idoport litigation became the subject of an appeal to the Court of Appeal and even to the High Court of Australia, it would be difficult it seems to me to imagine that access to the transcript database would not be of assistance in the conduct of those appeals. Likewise access to the statement database particularly the hypertext links within those statements to particular documents, could be of obvious assistance. Likewise access to the numerous interlocutory judgments could be of assistance on such appeals. Whilst care would need to be taken in relation to the precise setup of an electronic casebook for an appeal it would seem to be logical that there would be many efficiencies in an appellate tribunal having electronic access to nominate materials.
The future and beyond
The inherent jurisdiction of the Supreme Court to regulate its own proceedings so as to promote matters relating to convenience, expedition and efficiency in the administration of justice, includes directing or ordering the parties to use certain procedures, if the benefits derived from the use of such procedures justifies the costs and will ensure that the trial proceeds quickly and efficiently.
It seems clear that notwithstanding the technological advances which permit for efficiencies in relation to diverse aspects of and related to the conduct of civil as well as criminal proceedings, the lodestar must remain the administration of justice. A parameter of the administration of justice does require efficiency in the preparation of and in the running of proceedings. In precisely the same way as technology is now in common use as an everyday tool in almost any aspect of most disciplines, in commercial life as well as in government, use of technology to achieve necessary efficiencies in relation to litigation is not only highly desirable but sometimes absolutely essential. The practitioner in 2001 is expected to turn his or her mind to the efficiencies which may be achieved by use of technology in litigation and in doing so is doing no more and no less than using common sense in the jointly shared interests of litigants as well as the Court in the administration of justice.
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