Practice Direction No. 52
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Guidelines
for the Use of Technology
| guidelines |
1. This joint Practice Direction details guidelines
for the use of technology in litigation in civil matters within the South
Australian court system. This practice direction is a combined approach to the
use of technology adopted by the Supreme Court of South Australia, District
Court of South Australia and Magistrates Court of South Australia. The Practice
Direction, through detailed consultation with the Law Society of South
Australia, aims to develop national standards for the use of technical support
in civil litigation matters across the court system.
DATED 17 August 2001.
(Ruth
Blenkiron)
REGISTRAR
This practice direction stands as
SUPREME COURT Practice Direction No.52
DISTRICT COURT Practice Direction No. 10
MAGISTRATES COURT Practice Direction No.1 of 2001
in Litigation in any Civil
Matter
| electronic
exchange of court documents |
| electronic
exchange of discovery lists and documents |
| technology for
the hearing | annexures |
Introduction
1. This Practice Direction is based on a
draft prepared under the auspices of the Australian Institute of Judicial
Administration. It reflects a consensus approach adopted by all of the higher
courts. Its purpose is to provide for and encourage the use of information
technology, wherever and to the extent appropriate, in civil litigation in all
South Australian Courts. The Courts
also reserve the right to direct parties to use technology whenever this is
desirable in the interest of the efficient disposal of litigation. Parties are
expected to comply with any directions issued by a Court in relation to the use
of technology and shall comply with any requirements published by that Court in
relation to issues concerning the use of technology, such as document
formats. The word “Parties” is used
throughout this document as including both legally represented litigants and
litigants in person.
Practitioners
or litigants in person requiring assistance in the appropriate use of such
technology are encouraged to contact the Team Leader, User Support Services, of
the Courts Administration Authority (CAA) on 8207 1889.
Technical
terms used in this Practice Direction are defined in Annexure 3.
2. Parties to any proceedings are encouraged
where appropriate to:
(1) use electronic data to create lists of their
discoverable documents;
(2) make discovery by exchanging electronic data created
in accordance with an agreed protocol;
(3) exchange electronic versions of documents such
as pleadings, reports and statements;
(4) arrange for inspection of discovered material by way of images if appropriate; and
(5) consider the use of electronic data at trial.
Parties
may find the attached checklist of technology issues (Annexure 1) a useful guide to matters that
may need to be considered at various points during the course of proceedings.
3. As a general rule, if the parties believe
that they will be discovering more than 200 documents between them, they should
consider exchanging details of the documents in an agreed electronic format
using agreed fields and consider the use of document images. It is important
that the parties attempt to agree on a protocol for exchanging details of the
documents before they make
discovery. However, attention is
directed to what is said in paragraph 4 as to the need to ensure ultimate
compatibility with the CAA IT system.
4. To assist parties to any civil proceeding,
this Practice Direction provides guidance (Annexure
2) on the fields that the parties should consider using to exchange
information electronically about their discoverable documents, or for case
management purposes. When developing a protocol, parties may agree to vary or
depart from the suggested fields, where this is warranted by the circumstances
of the case. However, before concluding any such agreement it is important that
it be cleared with the Team Leader, User Support Services, as a departure from
the recommended protocols may give rise to later difficulty in interfacing with
CAA IT systems. It is a requirement of
the Courts that any protocol adopted be capable of so interfacing. The ability
of the Courts to directly support the use of technology will, of course, depend
upon the resources available to it from time to time.
Where
the parties have agreed that discovery should be given by exchanging details of
the documents in an agreed electronic format, they should:
(a) endeavour to reach agreement on the protocol
to be used; and
(b) seek a consent order from the appropriate
Court with respect to the agreed protocol to be used; or
(c) seek
a direction from that Court as to the specific protocol to be used if no
agreement can be reached in that regard.
5. The Courts encourage parties to exchange
electronic versions of court documents, as this will assist them and the Courts
to use technology to manage information more efficiently, for example through
the use of full text searching software. This will also provide valuable
experience in the later implementation of electronic filing processes currently
being developed. The Courts also
encourage parties, in appropriate cases, to deliver to the trial Judge's
Associate or Magistrate’s Clerk electronic versions of court documents at least
24 hours prior to the hearing, to supplement the hard copy documents filed with
the Registry. They should liaise with the Associate or Magistrate’s Clerk in
relation to the use of such technology in court.
6. The Courts will expect the parties to agree
on the appropriate medium for exchange of electronic versions of documents and
discovery data. Failing agreement the
Courts will normally exercise the power of direction conferred on it by SCR/DCR
58.04(f) or MCR R12, as the case may be.
7. A particular Court may issue further
practice notes in the future about such matters as the exchange of images of
documents and the use of technology at trial. Parties are encouraged to
consider these issues from the commencement of proceedings. One of the benefits
of an agreed protocol for exchange of data concerning discoverable documents is
the greater ease with which technology can be used efficiently at the hearing.
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8. Where a party serves a pleading, affidavit,
statement, list of documents or interrogatories upon another party, the
recipient may ask that party to provide a copy of that document only in an
electronic format.
9. The Courts expect parties to accede to
reasonable requests for copies of documents in an electronic format.
10. Subject to 12 below, where a party provides
a document in electronic format, that document shall contain the same text as
the paper copy.
11. Where appropriate, the parties may wish to
prepare a document in a structured format, such as HTML, so that hypertext
links can be made where appropriate. For example, if a document refers to a
Document ID, a hypertext link can be made to the relevant document image.
12. Where a
document contains annexures, the party will normally be expected to provide an
electronic version of those annexures together with the electronic version of
the host document, unless there is good reason for not converting such
annexures to an electronic format.
13. The Courts expect parties to make all
reasonable efforts to agree on such matters as:
(a) the format in which electronic versions of
Court documents will be provided;
(b) the methods by which electronic versions of
Court documents are to be exchanged;
(c) the terms and conditions on which electronic
versions of Court documents are to be exchanged. In general, it will not be
regarded as unreasonable for a party to provide documents in an electronic
format subject to a condition that it is the responsibility of the recipient to
test for viruses.
It is
also the responsibility of a party transmitting any document in electronic
format to take all reasonable steps to ensure that the material transmitted is
virus free.
14. A Court may direct a party to provide it
with copies of court documents in a specified electronic format. Subject to 12
above, where a party provides the Court with a document in an electronic
format, that document shall be in the same format and contain the same text as
the paper copy. The Court expects the party providing documents in electronic
format to provide appropriate written warnings about the need to test for
viruses.
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15. The parties
are encouraged to consider ways to use technology to manage the discovery and
inspection process more efficiently from the commencement of proceedings. The
most appropriate use of technology will usually depend on the volume and
categories of documents that are to be discovered. That in turn may depend on
any agreement between the parties ‑ or any direction from the relevant
Court ‑ limiting the scope of discovery. Decisions about the appropriate
use of technology will be better informed if the parties have first identified
the scope of discovery and the categories of documents likely to be discoverable.
16. At directions hearings, a Court may make
orders that parties:
(a) meet to discuss how best to use technology to
exchange information about their discoverable documents or imaged copies of the
documents;
(b) make written submissions on how best to use
technology to:
(i) exchange information about their
discoverable documents or imaged copies of the documents; and
(ii) manage information in the proceedings
generally.
17. The Court will expect the parties to make all
reasonable efforts to agree on such matters as:
(a) the medium to be used to exchange data
concerning their discoverable documents and/or images of the documents;
(b) how data should be delimited;
(c) the format of the data; for example, whether
it should be in ASCII text or some other agreed format;
(d) how the parties will record the date of
service of the data and ensure that the party providing the data and the nature
of the data may be readily identified; for example, by appropriate labels on any
disks, e-mail addresses or other medium used to exchange data;
(e) the
terms and conditions on which data and/or images will be exchanged. In general, it will not be regarded as
unreasonable for a party to provide data on condition that it is the responsibility
of the recipient to test it for viruses, given the primary obligation of a
transmitting party to take reasonable steps to ensure that material transmitted
is in fact virus free.
18. As a general rule, at the next directions
hearing after the use of technology has been raised, each party will be
expected:
(a) to have ascertained the number and categories
of documents likely to be discoverable by that party, taking into account any
limits on discovery that may be agreed between the parties or the subject of a
direction by the relevant Court;
(b) to have attempted to agree with the other
parties on whether and how to use technology to exchange lists of their
discoverable documents and/or imaged copies of the documents; and
(c) to
be able to make informed submissions about whether and how technology should be
used to exchange lists of their discoverable documents and/or imaged copies of
the documents.
19. Parties wishing to use a database to record
and exchange discovery data may refer to the table in Annexure 2. This sets out a list of fields,
which could be included in such a database for both discovery and case
management purposes. Parties may, with the concurrence of the relevant Court, agree
to add to, modify or disregard the suggested fields to suit the requirements of
the litigation.
20. Where existing rules of court presuppose
that a hard copy list of documents will be verified by affidavit, if a party believes
that it is appropriate to dispense with the verification of a hard copy list or
to adopt some other means of verification, it should apply to the relevant
Court for an appropriate direction.
21. Parties should also consider the possibility
of whether data relating to their discoverable documents can be provided to the
relevant Court electronically (in addition to any hard copy list).
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22. If parties have electronically exchanged data
and/or images to facilitate discovery and inspection, they should also consider
and make submissions regarding how best to use technology at the hearing. For
example, the parties' electronic data could form the basis for an index to an
agreed bundle, for lists to assist with the tendering process, or for the
creation of a database of documents admitted into evidence and rulings on the
admissibility of documents. More generally, parties should consider:
(a) the equipment and services (including appropriate
hardware, software and additional infrastructure) that they and the relevant
Court may require at the trial; and
(b) the
arrangements that may need to be made between the parties, the Court and any
third party service providers to ensure that appropriate equipment and services
are available at the hearing.
23. If real time reporting is desired for the
trial, that fact should be identified to the Team Leader, User Support
Services, at least 14 days prior to its commencement.
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Annexure 1 – Technology Checklist
Annexure 2 – Guidelines – Possible Fields for
Database
Annexure 3 – Glossary of Terms
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