Nguyen, Daniel D --- "The advent of e-litigation: The paperless trial" [2017] PrecedentAULA 18; (2017) 139 Precedent 14

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THE ADVENT OF E-LITIGATION

THE PAPERLESS TRIAL

By Daniel D Nguyen

In an exchange in the Christmas Island Detention Centre class action in the Supreme Court of Victoria (Supreme Court), Mr Richard Stanley QC, counsel for the Commonwealth, described the upcoming trial as an ‘email trial’. Justice Jack Forrest responded, “Mr Stanley, I believe it is known by people these days as an ‘e-trial’.”

WHAT IS E-LITIGATION?

Whether they are described as e-trials, technology-assisted trials, paperless trials or email trials, we have entered the age of trials that are run without paper. It is now important for practitioners and court-users alike to become familiar with how they operate. This article introduces readers to how e-trials function in large-scale civil litigation and describes some of the benefits they offer.

If a matter is run as an e-trial, this does not mean that paper documents are absent from the entirety of a proceeding. It simply means that when a matter proceeds to hearing, it is run before the court without any paper documents. Instead, the relevant documents are stored electronically, generally on a server. The court and parties can access these documents via the internet and they are presented in the courtroom to the judge and court users on display screens.

One notable Victorian example of an e-trial is the hearing of the Kilmore East Black Saturday class action,^[1] which was held in a specially built mega-trial courtroom at the William Cooper Justice Centre.^[2] There, Justice Jack Forrest famously issued an edict banning practitioners from using trolleys. His Honour also banned the parties from bringing folders into the courtroom. Although one or two senior counsel managed to accumulate a small number of folders in the courtroom, slipping them past the watchful eyes of the judge’s associates, the trial on the whole was run paper-free for some sixteen months^[3] and gave rise to 52 published rulings. Another Victorian example is the Great Southern class action^[4] trial which went before Justice Clyde Croft and ran paper-free for just over a year^[5] in Courtroom 15.

FEATURES OF AN E-TRIAL

There are a number features of note that are peculiar to e-trials:

Pre-hearing stage

E-trial services provider

Where the hearing is expected to run for a long period, the parties engage a third-party provider to co-ordinate a system or protocol for the conduct of the hearing and use of technology, all of which is subject to the approval of the presiding judge. For hearings of a shorter duration, practitioners can agree to conduct the hearing with the use of less complex technology. For example, the Horsham bushfire proceeding hearing was conducted with the assistance of a paralegal. She used a laptop to call up documents from the court book, which consisted of the relevant documents linked to an Excel spreadsheet.

Storage and identification of electronic documents

• When used, the third-party provider will collect all documents from the parties, whether in hard copy or soft copy, and process them electronically for upload to a server.

• Each document is stamped with a unique identifier. The unique identifier is created for ease of identification by the court and practitioners. For example, in the Kilmore East Black Saturday class action a system was used that consisted of a three-letter party code, a three-digit number indicating location sourced from or a batch processed and a four-digit number identifying the particular document: ‘PLA.013.1234’.

Access to documents by the court and parties

• Once the relevant documents are uploaded, they become part of the online court book. Registered users (meaning the court and the parties) can access the court book online using a password.

• The court and each party will each have their own private version of the court book that cannot be accessed by others. This is in addition to the public version of the court book which is accessible to the court and all of the parties, and which is used for the hearing.

• The user can view the court book in a few different forms or arrangements. For instance, documents can be categorised into different headings such as date tendered into evidence, day of trial, or day of opening submissions and so on.

Special features of e-trial electronic documents

• Searchable text: Documents used are usually in a text-searchable electronic format, whether via Native Format, converted PDF or imaged document subject to optical character recognition process. This enables practitioners and the court to search the entire online court book for particular key words, topics or phrases.

• Annotation of documents: The judge, counsel and solicitors can annotate or make notes on their own private version of the court book. These notes or annotations can be searched at a later point.

• Hyperlinking: Hyperlinks are processed into the electronic documents to enable cross-referencing to documentary evidence in submissions and transcript. For example, where a document (for example, the contract) is referred to in the transcript as ‘PLA.013.1234’, once that reference is hyperlinked, one can click on the hyperlink to open a new window containing the contract itself from the online resource.

In-court technology and hardware

To run an e-trial, a courtroom will generally need to have the following built-in features:

(i) Multiple display screens so that the judge, counsel, solicitors, witnesses and the public can simultaneously view the evidence as it is being presented;

(ii) Practitioners typically also bring their own laptops to access documents on their online private court book so that they are not restricted to what is being displayed in court at the time;

(iii) Real-time transcript screens are available where parties pay the transcript provider;

(iv) Speedy internet connection and wifi access;

(v) Video link facilities to take remote evidence and display screens for witnesses; and

(vi) Cameras for public and private (password accessible) live streaming of the trial.

During the hearing

Court operator

The third party will provide one or two court operators,^[6] trained in the use of the system, who physically sit in the courtroom for the duration of the hearing and undertake the following tasks:

(i) calling up documents to present in the courtroom, on the court or counsel’s request. The court operators are able to utilise various features to improve the accessibility of documents including zooming, scrolling, highlighting, and arranging a split screen with side-by-side display of multiple pages;

(ii) maintaining an up-to-date record of documents tendered into evidence (that is to say, an exhibit list) by tagging documents;

(iii) providing a cumulative exhibit list to the court and the parties at the end of each sitting day;

(iv) hyperlink processing; and

(v) assisting the court and parties with the upload of documents onto the server and their technological inquiries.

Presentation of evidence

The third-party court operator will usually operate the document call-up during the hearing. Counsel will call documents by reading out their document ID, followed by the pinpoint reference to the relevant page. The same document is then presented on the display screens so that it can be seen by all court-users (including the public gallery). This avoids confusion by ensuring that everyone is viewing the same document.

Real-time transcript

The transcript of what was said in the courtroom can be transcribed in real-time and presented on display screens for the judge, court staff, counsel and solicitors.

VICTORIAN SUPREME COURT PRACTICE NOTE ON TECHNOLOGY

The recent Supreme Court Practice Note SC Gen 5 Technology in Civil Litigation (Technology Practice Note) states its purpose as promoting ‘the effective use of technology in the conduct and of civil litigation to reduce time and costs’. ^[7] Importantly, it sets out the Court’s expectations with respect to use of technology in civil litigation:

‘The court expects parties to acquit their obligation to ensure costs are reasonable and proportionate by employing technology to save time and costs wherever possible’.^[8]

Such an obligation is consistent with the parties’ overarching obligations under the Civil Procedure Act 2010 (Vic) (CPA). In the cases of Hudspeth v Scholastic Cleaning and Consultancy Services (Nos 1 and 2)^[9] and Yarra Australia Pty Ltd v Oswal,^[10] the Court has emphasised not only the importance of acting in accordance with a party’s obligations under the CPA, but also the Court’s responsibility to impose sanctions where it finds a party has contravened the overarching obligations.

The Technology Practice Note acknowledges that different uses of technology will be appropriate for different types of proceedings and that uses of technology will develop and evolve over time. It therefore does not mandate a single approach to the use of technology. Rather, the Court is guided by certain general principles stipulated in the Technology Practice Note. Practitioners should take care to adhere to these general principles.

One general principle that may be a surprise for practitioners is that ‘dealings in hard copy are to be the exception rather than the rule in all aspects of civil litigation in the court’ and ‘converting electronic documents into hard copy requires justification’.^[11] This is a progressive step away from the traditional mode of civil litigation where hard copy paper documents have been the norm.

Another general principle is that the inability or reluctance of a lawyer to use common technologies should not occasion additional costs for other parties. The Court expects lawyers to be skilled in the use of common technologies. Practitioners should be aware that an unreasonable failure to co-operate in the use of technology which gives rise to additional costs will constitute a breach of the overarching obligations of the parties.^[12]

Last, the Court notes that the increased technological capability to store, search and access large volumes of documents does not relieve parties of the obligation to limit the presentation of documentary evidence to that which is necessary and proportionate to the proceedings.^[13]

It would be fair to say that the Court has embraced the benefits of e-trials and that the general principles in the Technology Practice Note impose an obligation upon practitioners to consider whether conducting the hearing as an e-trial would be appropriate.

THE BENEFITS OF E-TRIALS

To proceed with an e-trial, usually an e-trial services-provider will be engaged by the parties.^[14] The cost of engaging an e-trial provider is not insignificant. However, when compared with the ultimate time and costs savings, it would appear to be a worthwhile investment.

In the Kilmore East Black Saturday class action, there were 6 parties, 9 proceedings, 4 law firms, 26 senior and junior counsel, an unknown number of solicitors, 208 court sitting days over 18 months,^[15] 23,156 documents uploaded to the court book with at least half of those documents tendered into evidence, 1,515 court book updates, over 100 witnesses (which included 40 expert witnesses, some of whom were flown in from different parts of the world) and in excess of 20,300 pages of transcript.

In the Great Southern class action, there were over 20 parties, 16 proceedings, 7 law firms, 12 counsel, 90 court sitting days over 12 months,^[16] 17,380 documents, and over 1,000 court book updates. It gave rise to the ‘Great Southern reasons’,^[17] which span 2012 pages and constitute the unpublished reasons for judgment because the proceedings settled on the eve of the date that handing down of judgment was to occur.

Independent assessment conducted by the Court into these two class action trials found that about one-third of court time was saved by the use of technology in the courtroom.^[18] This translated to a savings of court time of approximately 52 days in the Kilmore East Black Saturday class action and 23 days in the Great Southern class action. When one considers the cost of each day of trials that involved so many counsel, solicitors and documents, these are remarkable figures.

In addition to saving significant amounts of court time on large-scale trials, many other tasks either become redundant or much simpler when operated electronically, and often lead to further, overlooked time and cost savings. For example:

(i) Printing costs for law firms can run into the tens of thousands of dollars, depending on the length of trial, and are usually borne mostly by the plaintiff, applicant or claimant;

(ii) Costs of paginating of the hard copy court books used by the court, counsel and solicitors, and especially re-paginating when they are amended;

(iii) Inserting and removing pages from hard copy court books used by the court, counsel and solicitors;

(iv) Physical preparation of cross-examination bundles;

(v) Tracking exhibits and cross referencing with transcript;

(vi) Trolley services to transport folders of documents to and from the courtroom;

(vii) Hard copy court book ‘filleting’ at the end of a hearing;

(viii) Managing, collecting, storing, securing, archiving, and destroying copies of the hard copy court book subsequent to conclusion of the trial;

(ix) The overall environmental benefit of trees saved;

(x) Hard copy papers do not need to be located and passed up to the judge, the witness and to other parties;

(xi) There is no need for folders, so ‘white folder syndrome’ (the common phenomenon where all white folders begin to merge and resemble one another) can be avoided.

When one adds up the costs of these matters over 208 days of court sitting in a case as complex as the Kilmore East Black Saturday class action, it is clear that the time and cost savings of running an e-trial are considerable.

Generally, proceedings that involve a large volume of documents are best suited for an e-trial. However, there is no reason why, as technology develops further and access to it becomes more economically viable, e-trials cannot be used in smaller proceedings where a third-party provider may not need to be engaged.

UPCOMING E-TRIALS AND SUPREME COURT DEVELOPMENTS

Some of the upcoming e-trials and Supreme Court developments in Victoria are:

• 2014 Mickleham-Kilmore bushfire class action (Williams v AusNet Electricity Services Pty Ltd), which commenced as an e-trial on 7 February 2017.

• Christmas Island Detention Centre class action (AS by her litigation guardian v Minister for Immigration and Border Protection & Ors) to commence as an e-trial on 15 March 2017.

• Manus Island Detention Centre class action (Kamasaee v Commonwealth of Australia & Ors) to commence as an e-trial on 1 May 2017.

• The Technology Practice Note applies to proceedings in the Judicial Review and Appeals List^[19] and this List is transitioning to be run completely electronically.

• From the second term of 2017, proceedings in the Valuation, Compensation and Planning List will be run as e-trials in a modified courtroom.

• Currently, the Supreme Court has the mega-trial courtroom in William Cooper Justice Centre and Courtroom 15, both of which are fitted out to run e-trials. In the next six months, the Supreme Court is aiming to improve some of its other courtrooms so that they can also hold e-trials.

• The Commercial Court already has e-filing^[20] in place for its proceedings and the Common Law Division is aiming to have e-filing from 1 January 2018.

WHAT’S ON THE HORIZON?

The examples of the Kilmore East Black Saturday and Great Southern class actions are viewed by the Court as successful projects in e-trials because of the time and costs savings that were achieved in these behemoth-sized proceedings.

One would think that, subject to the courts securing sufficient funding to support e-filing and e-management of trials and appeals, e-trials will soon be the mainstay of civil litigation. After all, there are now law firms operating completely online that do not have physical addresses and which hire lawyers and staff, allowing them the flexibility to work from home or, when necessary, at shared workspace sites. Some of these law firms conduct client interviews via Skype and can engage third-party services to verify the client’s identity.

The next, and perhaps not so distant, prospect would be for the court and parties to conduct hearings via ‘virtual courtrooms’, where all participants appear remotely at a virtual site and the hearing is entirely run from each participant’s screen, thus by-passing the need to physically attend a courtroom. It is understood that New South Wales, Queensland and South Australia have trialled or are looking into trialling slightly modified versions of the virtual courtroom.

Chief Justice of the Victorian Supreme Court, Marilyn Warren AC, has remarked that today’s law graduates are raised in the technology age and should not be put to the task of carting trolleys and folders back and forth from law firms to courts.^[21] It would seem that young lawyers will soon have the chance to utilise both their legal and technological skills when more legal practice moves online.

The author acknowledges the kind assistance of Justice J Forrest and Emily Long in the preparation of this article. The author also thanks Nick Wernerman, E-trial Services Manager at NuLegal, for providing statistics on the Kilmore East Black Saturday and Great Southern class actions.

Daniel D Nguyen is a barrister who practises in common law and commercial law at Owen Dixon Chambers, Melbourne. He previously worked with Justice J Forrest and Justice Croft in the Kilmore East Black Saturday and Great Southern class actions respectively as the Class Actions Co-ordinator at the Supreme Court of Victoria. PHONE [phone] EMAIL [e-mail].

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^[1] Matthews v SPI Electricity Pty Ltd & Ors; see complete list of published rulings at http://www.judicialcollege.vic.edu.au/sites/default/files/Index_to_the_Rulings_from_the_Kilmore_East_Kinglake_Bushfire_Class_Action_FINAL2015.pdf.

^[2] Construction of the specially built courtroom began in 2012. It was designed to fit up to 40 lawyers at its bar tables, and 80-100 spectators in the public gallery.

^[3] Hearing commenced on 4 March 2013 and concluded on 18 June 2014.

^[4] See judgment on application for approval of settlement: Clarke (as trustee of the Clarke Family Trust) & Ors v Great Southern Finance Pty Ltd (Receivers and Managers Appointed) (in liquidation) & Ors [2014] VSC 516.

^[5] The hearing commenced on 9 October 2012 and extended over 90 sitting days, concluding on 24 October 2013.

^[6] Where there is no third-party provider, the practitioners typically provide a court operator or request to have a court staff as the court operator.

^[7] Supreme Court, Practice Note SC Gen 7 – Technology in Civil Litigation, 30 January 2017, 1, [1.2].

^[8] Ibid, [4.1].

^[9] [2014] VSC 567; [2014] VSC 622.

^[10] [2013] VSCA 337; (2013) 41 VR 302.

^[11] See above note 7, 2, [4.3].

^[12] Ibid 3, [4.3].

^[13] Ibid 3, [4.3].

^[14] It is noted that the Court considers it proportionate to engage a third-party provider to operate a co-ordinated system in trials involving a large amount of documentary evidence where the trial is anticipated to run over 10 sitting days: See above note 7, 9, [9.16].

^[15] The trial commenced on 4 March 2013 and the final hearing day was on 18 June 2014.

^[16] The trial commenced on 29 October 2012 and the final hearing was on 24 October 2013.

^[17] Which can be found annexed to Clarke (as trustee of the Clarke Family Trust) & Ors v Great Southern Finance Pty Ltd (Receivers and Managers Appointed) (in liquidation) & Ors [2014] VSC 516.

^[18] Chief Justice Marilyn Warren AC, ‘The Litigation Contract: The Future Roles of Judges, Counsel and Lawyers in Litigation’ (Speech delivered at the High Stakes Law in Practice and the Courts Victorian Bar & Law Institute of Victoria Joint Conference, Melbourne Convention and Exhibition Centre, Friday 17 October 2014).

^[19] Supreme Court, Practice Note SC CL 9 – Judicial Review and Appeals List, 30 January 2017, 6, [10].

^[20] ‘E-filing’ is the system for submission of legal documents to the court and other parties via the internet, usually without the need to submit any paper documents.

^[21] Chief Justice Marilyn Warren AC, (Speech delivered at ‘The Future of Civil Procedure: Innovation and Inertia’ Forum, Monash University Australian Centre for Justice Innovation, Wednesday 17 February 2016).