Seamus E. Byrne's - In Pursuit of Relevance

Media Report from The Australian (Australian IT):

THE Federal Court of Australia has brought the nation's legal system into the computer age, with new e-discovery rules requiring all electronic documents and emails to be produced and exchanged electronically, preferably in their original formats.

An updated Practice Note (the use of technology in the management of discovery and the conduct of litigation) essentially spells an end to voluminous paper files in commercial cases and could slash millions of dollars from litigation bills.

Issued by Chief Justice Black after 19 months of consultation, the e-discovery rules aim to improve efficiencies and help contain costs at a time when protracted litigation between corporate players and inquiries into financial misconduct have placed extreme pressure on court resources.

However, hopes that the Federal Court Practice Note would underpin more uniform e-discovery procedures nationwide have been torpedoed by the NSW Supreme Court, which also handles a large volume of commercial litigation.

NSW Chief Justice Jim Spigelman issued a Practice Note on the Use of Technology that came into effect in August last year.

Lawyer and computer forensics expert Seamus Byrne said the NSW rules were announced without warning to the legal profession. "The NSW Practice Note is a step in the right direction," Mr Byrne said.

"However, the Federal note is much more comprehensive and from the industry perspective it's had the benefit of input from a much larger group of people.

"Unfortunately, the NSW Note recommends, as a default, that electronic documents be exchanged on a floppy disk. It doesn't bode too well for the perception that the law keeps pace with technology."

Last month, Justice Spigelman warned that economic adversity meant lawyers would have to reduce their costs or risk being marginalised. And federal Attorney-General Robert McClelland has warned that lawyers and courts face further reform as part of the Rudd Government's response to the global financial crisis.

"Regulation of the legal profession remains overly complex and inconsistent, and each jurisdiction maintains its own structure," Mr McClelland said.

"We believe there are significant efficiencies and cost savings to be gained.

"Compliance costs would be significantly reduced for the profession and consumers of legal services, especially those operating across borders."

Under the new Federal Court rules, companies must meet strict obligations over the retention and handling of electronically stored information, and ensure its availability for court hearings.

"Document management protocols will ensure that parties and their lawyers have sufficient information to be able to manage documents and related technology issues in light of what is expected by the Court," acting registrar Philip Kellow said.

The rules applied where a "significant number" (generally 200 or more) of documents relevant to proceedings "have been created or are stored in electronic format".

Mr Byrne said the Federal Court Practice Note provided a flexible framework that would maximise lawyers' use of technology, and re-level "a litigation playing field that has in recent years been skewed in favour of large corporations and top-tier law firms".

"The court now considers the printing of electronic documents and the excessive photocopying of paper documents a waste of time and money," he said.

"The biggest pre-trial expense is discovery, and this effectively addresses that issue by requiring the proactive co-operation of everyone involved."

Parties will have to "meet and confer" at a pre-discovery conference to discuss the discovery of documents -- including material contained in company systems and databases, SMS messages on mobile phones, videos, iPods and executive laptops -- and agree on a discovery plan before the mandatory Discovery Conference takes place. "Within the Federal Court definition of a 'document', there is no limit on the types of format, anything that can be stored electronically is included, whether in part or whole," Mr Byrne said.

"So that may be a PowerPoint presentation stored on a hard drive or a fragment of a deleted Word document recoverable from a USB key."

The new rules meant the "ability to distract or prolong litigation because of discovery has now been reduced", he said.

"It's certainly in a company's best interests to have their documents in order, so their lawyers can focus on the real issues at hand ... as opposed to arguing over whether a particular document is available or whether it can be produced."