Federal Court Guidelines on e-Discovery

The Federal Court of Australia issued "The use of technology in the management of discovery and the conduct of litigation" 29 January 2009 (Practice Note No 17). Justice Teague might also consider these of use for his royal commission into the Victorian brushfires. The guidelines set out the use of electronic documents in court proceedings. This is intended to be used a significant number of the documents in a case are electronic (usually 200 or more) and so handling them electronically will speed up the process and lower costs.

The Practice Note cites document provided on the court web site for:

1. Default Document Management Protocol for 200 to 5,000 e-documents,
2. Advanced Document Management Protocol for more that 5,000 documents,
3. Pre-Discovery Conference Checklist
4. Pre-Trial Checklist
   
5. Glossary
   

Federal Court IT Guidelines Delayed until 2009

The Federal Court of Australia's "Guidelines for the Use of Information Technology in Litigation in Any Civil Matter" were due to be revised by 1 July 2008, but have now been delayed until 2009:

In 2007 the Federal Court commenced a comprehensive review of Practice Note No 17 with the assistance of a consultant, Ms Jo Sherman.

Following extensive consultations with litigants, legal practitioners and others, a draft Practice Note and related materials were finalised by Ms Sherman and referred to the Court's National Practice Committee in mid 2008.

These draft documents are now being reviewed by the Court in light of recent case management initiatives (including the legislative reforms in this area proposed by the federal Attorney-General) and further comments provided by litigants, legal practitioners and others with an interest in the use of technology in legal proceedings.

It is expected that a number of changes will be made to the documents, and that the final versions will be formally released in early 2009....

From: Review of Practice Note No 17 - Guidelines for the Use of Information Technology in Litigation in Any Civil Matter, Federal Court of Australia Practice News No. 59, October 2008

U.S. Court’s Federal E-Discovery Rules

The U.S. Federal Judiciary amended its "Federal Rules of Civil Procedure", 1 December 2007, with more detail on e-discovery. The rules for "electronically stored information" (ESI) are less technically prescriptive than the Federal Court of Australia Document Management Protocol. The US Courts draft "A Practical Guide to Electronic Discovery" (January 2008) defines:

"Writable Electronic Form" means a format that allows the recipient to copy or transfer the text of the document into format that allows the recipient to copy or transfer the text of the document into the answer or response, or permits the answer or response to be typed directly into the document, and thus avoids the need to retype the text.

More useful is "A Practical Guide to Electronic Discovery Under the New Rules", by David Nuffer, United States Magistrate Judge, District of Utah (26 Jan 2008). The Judge mentions Metadata, citing "Discoverability of Metadata", Marjorie A. Shields,2006 A.L.R.6th 6 (2006).

The Judge then discusses the benefits of different formats for documents: Native, PDF Text, PDF Image, TIFF and Paper. Issues include "Need special software?", "E-Search", "Bates stamped", "Identified to original file/author", "As kept in ordinary course", "Identified to requests" and "Familiar". The table is cryptic, but seems to be saying that native formats suite metadata more, PDF and TIFF have the advantage of not needing special software, e-search can be done with native and PDF test formats, legal people need to develop expertise with the electronic formats and negotiation is needed for "Identified to original file/author", "As kept in ordinary course", "Identified to requests". There is no more detail as to what metadata may be required or how the parties exchange it.

Note: "Bates stamped" refers to "Bates numbering" (Bates stamping or Bates coding), which uses a machine to place a printed unique identifier (and optionally a date/time) on court documents. For electronic documents, this implies more than just assigning an external reference number to a document, the identifier must be bound to the document, usually by being included in the same file, so the stamp displays and prints in a similar format to a physical stamp. There are numerous add-on software products offered Bates stamping of PDF and TIFF documents.

LegalXML Electronic Court Filing Standard

In trying to answer my own question about how the Federal Court of Australia could set standards for exchanging information electronically, I came across the OASIS LegalXML Electronic Court Filing Technical Committee. They have a 55 page LegalXML Electronic Court Filing, working draft (V 4.0, March 17, 2008):

This document defines the LegalXML Electronic Court Filing 4.0 (ECF 4.0) specification, which consists of a set of non-proprietary XML and Web services specifications, along with clarifying explanations and amendments to those specifications, that have been added for the purpose of promoting interoperability among electronic court filing vendors and systems. ECF Version 4.0 is a major release and brings the specification into conformance with the National Information Exchange Model (NIEM) 2.0.

This is accompanied by 1Mbyte of XML definitions of the transactions and metadata. This is much too complicated for what the federal court has in mind, but some of the definitions and techniques may be of use. Also this is not a consensus draft and the committee may be a long way from having a final document, if ever.

The standard includes:

CoreFilingMessage

xsd/message/ECF-4.0-CoreFilingMessage.xsd

CivilCase

xsd/casetype/ECF-4.0-CivilCase.xsd

It also removes some ambiguity over date formats:

• Calendar date values should be expressed as “CCYY-MM-DD”, with an optional time zone qualifier designated by appending -hh:00, where hh represent the number of hours the local time zone is behind Coordinated Universal Time (UTC).

• Time values should be expressed as “hh:mm:ss.sss”, with an optional time zone qualifier designated by appending -hh:00, where hh represent the number of hours the local time zone is behind Coordinated Universal Time (UTC).

There is also a useful diagram describing the "Filing Preparation to Docketing Process Model".

Federal Court of Australia Document Management Protocol

The Federal Court of Australia is working on two Document Management Protocols as part of its Document Management, Discovery and the use of Technology in the conduct of Litigation" practice note. The new guidelines were due to come into effect 1 July 2008, but appears to have been delayed for more consultation. So I thought I would give this to my EDM students at ANU to think about as a systems development problem and perhaps help the court.

Here is the draft tutorial question:

The Federal Court of Australia is working out how lawyers can exchange information about some of the large number of electronic documents now used in court cases (called "e-Discovery"). But being lawyers, they have used a lot of words to describe what is an information processing system. This will make for a lot of work for the people who have to implement it and leave room for incompatibility between systems used by different law firms.

Don't try and read it in detail, but quickly look at: "Advanced Document Management Protocol (Example)", Federal Court of Australia, Revision 0.18, 30 June 2008:

1. What are some of the problems with the metadata and document format specifications of this system?
2. How would you improve the speculation?
3. What standards would you suggest the court specify for particular metadata elements and document formats? Give some examples.

If you don't know where to start, look though some of the standards mentioned in the lecture notes.

Some of what I found along the way:

The "Practice Note" gives a general introduction to what the system should do. There is a , there is a checklist for the lawyers to the case to use and a glossary of terms. There are then two protocols defined: Default Document Management Protocol (DDMP) and Advanced Document Management Protocol (ADMP). The advanced protocol is intended for where there are more than 5000 Documents expected.

Comparison of the Default and Advanced Document Management Protocols

Curiously the advanced protocol document is only six pages longer than the default (19 versus 13 pages). Given that much of the information is the same between the two systems, it would be much easier if the advanced description only contained the additions and differences from the default. As it is it is necessary to make a careful comparison of the two documents to see what is different.

The documents use English text to describe the protocols. As a result they cannot be directly implemented by a computer system. English descriptions of the metadata are used. This makes for an imprecise and long document. It would be useful if a specification could be implemented in XML Schema. There are no references to formal standards. As an example PDF is specified, but no particular version of PDF (it might be preferable to use the Archive ISO standard version in this application). The court might choose to use the Dublin Core and other metadata standards recommended by the National Archives of Australia.

The default protocol uses a comma-separated values (“CSV”) format spreadsheet for providing the list of documents. The advanced protocol uses a Microsoft Access Database with four tables.

Default:

The spreadsheet columns required for Document Descriptions is as follows:
(a) Document ID;
(b) Document Title;
(c) Document Type;
(d) Document Date;
(e) Author;
(f) Recipient;
(g) Host Document ID; and
(h) Folder and Filename.

Advanced:

Table Name	Table Description
Export	Main Document information
Parties	People and organisation information for each Document
Pages	Listing of electronic image filenames for each Document
Export_Extras	Additional data fields for each Document

Export Table

Field	Data Type	Explanation – Document Types and Coding Method and possible values
Document_ID	Text, 255	Document ID in accordance with Schedule 1. Document_Type	Text, 255	...
Document_Date	Date, 11	DD-MMM-YYYY

One point to note from this is that dates are not specified in ISO date format.

Now I wonder what the students will make of it. ;-)

Australian electronic court system

The Federal Court of Australia has introduced an electronic court system eCourt. An interesting aspect of this is that the system is available to litigants (that is people going to court), as well as their lawyers, the judges and their staff. Documents and case details are limited to the relevant parties.

The court has taken a relatively pragmatic and low-tech approach to the e-Court. As an example, e-documents must be "sent" via the Court's home page. Essentially the documents are just uploaded as files to the court web system. There is no provision for emailing documents. eDocuments must be capable of being printed: that is the court doesn't want exotic electronic only formats, just equivalents of paper formats. Those lodging are asked to keep paper copies of the documents (thus assuming paper copies are possible).

Document are not accepted automatically, but have to be checked by a person and are only checked during office hours (thouse after 4:30 pm are considered received the following business day).

Electronic forms supplied can't be filled in using the online system. They have to be downloaded and edited locally using additional software. Forms are provided in PDF and RTF and are not intelligent (needing to be filled in manually or by a program emulating a human operator). Documents can use RTF, PDF, TIF, GIF, JPEG and "any version" of Microsoft Word. Zipped (compressed) files are permitted. It appears that the contents of the documents are not automatically tagged for incorporation into legal workflow systems and must be manually processed when received.

Digital signatures are not used for the documents. Instead a digital image facsimile of the persons autograph is used as a signature. This technique obviously is of little value to authenticate a document. It must be assumed that the user ids and passwords used for the web lodgment system and the encryption used to protect the upload is sufficient. The Court uses SSL encryption (key length?). Apart from this no form of cryptography or other techniques appear to be used to check the integrity of documents against accidental damage or deliberate tampering with documents.

Affidavits are only accepted electronically as "... an image of the document in an appropriate format". This is presumably done on the assumption that it is harder to forge an image of a whole page, than a word processing document which has the image of an autograph pasted into it. While it is more difficult to fake a whole page, it is within the competencies of the average computer literate teenager.

What is incorrectly described as a " file size" has not been set for e-documents at 100 printed pages equivalent.

The Court Registry provides the person submitting the document with a "stamped" copy of the document by email in PDF format. It is not clear what security measures are applied to the emailed document and why the same web interface is not used for returning documents (given the Court does not accept them by email).

Also the Federal Court of Australia is revising its "Practice Note No. 17. Guidelines for the use of information technology in litigation in any civil matter".

By mid 2008, the following were available:

1. eSearch: public to search of cases.
2. eFiling: litigants and legal representatives can lodge Court documents , including applications, electronically. The web based system includes an online guide and credit card payment facilities.
3. eCourtroom: virtual courtroom for pre-trial matters, such as directions and orders by a Judge, with parties and legal representatives participating online.
4. eCase Administration: for legal practitioners and parties to communicate with court chamber staff securely.
5. Commonwealth Courts Portal: Web-based services for judges, lawyers, litigants and court staff of the Federal, Family and Magistrates courts. This provides information on current cases before the courts, cases for particular judges, lawyers or litigants, documents filed and orders made.

Federal Court of Australia guidelines on electronic discovery

The Federal Court of Australia is revising and extensively expanding its guidelines on e-Discovery: "Document Management, Discovery and the use of Technology in the conduct of Litigation" . The new guidelines were due to come into effect 1 July 2008, but appears to have been delayed for more consultation (latest draft is Revision 7, 1 July 2008). Until then the guidelines issued 20 April 2000 are being used: "Guidelines for the use of information technology in litigation in any civil matter".

Discovery is the process by which parties to a civil court case look for relevant information the other party may have. This used to involve a visit to an office and lost of photocopying. With e-discovery the emphasis is on searching electronic record archives, email and other databases. Rules are needed to prevent the legal process being swamped with irrelevant detail.

As well as the "Practice Note" itself, there is a checklist, glossary and two document management protocols. The Advanced Document Management Protocol (ADMP) is intended for where there are more than 5000 Documents expected:

1. PRACTICE NOTE 17 - As updated 30 June 2008
2. PRE-DISCOVERY CHECKLIST - As updated 30 June 2008
3. GLOSSARY - As Updated 30 June 2008
4. DEFAULT DOCUMENT MANAGEMENT PROTOCOL - As updated 30 June 2008
5. ADVANCED DOCUMENT MANAGEMENT PROTOCOL - As updated 30 June 2008