Litigation can be costly. In particular, the discovery stage can form one of the most expensive phases of the litigation process. The Court and practitioners alike are increasingly turning to technological solutions to reduce the time and cost of the discovery process. Taking into account such factors, Gadens were recently involved in a proceeding in the Supreme Court of Queensland in which the parties undertook electronic discovery (eDiscovery), followed by an electronic trial (eTrial).
The significant amount of electronically stored information (particularly emails) means that the traditional method of hard copy discovery is sometimes not appropriate and undertaking a cost-effective manual review of this information is simply unrealistic.
The process of electronic discovery and the use of technology assisted review (also known as “TAR“) is gaining momentum both within Australia and internationally. This is because the volume of documents stored electronically has dramatically increased in recent times and parties are adopting a proportionate approach to the review of large document sets in litigation.
TAR encompasses a number of different concepts but, in practical terms, it is a process whereby a computer system is ‘trained’ to identify documents which are relevant to issues in the proceedings.
A set of criteria, including for example date ranges and key words, are decided upon for the inclusion of documents. The documents that do not meet this criteria are excluded. A representative ‘sample’ is then provided for human review, typically by a single senior lawyer, so that they are sufficiently familiar with the issues involved in the proceedings and to ensure consistency in the approach. Once that sample has been reviewed, the system then ‘learns’ from that initial review to predict the relevance of further documents and undertakes a process of categorising documents as relevant or not.
The use of TAR has been adopted in jurisdictions including the UK in Pyrrho Investments Ltd v MWB Property Ltd and David Brown v BCA Trading, Ireland in Irish Bank Resolution Corporation Ltd & Ors v Quinn & Ors and in the US in Rio Tinto v Vale.
The Australian Courts have also demonstrated a willingness to adopt eDiscovery and assisted review processes. The Supreme Court of Victoria led the way. In 2016, it delivered the first Australian case endorsing the use of this type of technology in the decision of McConnell Dowell Constructors (Aust) Pty Ltd v Santam Ltd & Ors.
This case involved a large claim concerning the design and construction of a natural gas pipeline in Queensland. There were originally 4 million documents which had been identified as relevant in the proceedings, which was later reduced to 1.4 million. Notwithstanding this reduction, the Court observed that “traditional manual discovery of the Plaintiff’s documents is not likely to be either cost effective or proportionate“.
As a consequence, the Court ordered the appointment of a Special Referee to report to the Court on questions relating to the appropriate management of discovery in the proceedings. Following this process, and after consultation with the parties, the Special Referee made recommendations to the Court which included the use of TAR in the discovery process. This recommendation was endorsed by the Court and orders were made giving effect to an appropriate protocol for this to occur.
Courts are now requiring parties to consider electronic document management in the conduct of matters. By way of example, the Supreme Court of Queensland has issued practice direction 2018/18 which directs litigants to adopt a proportionate and efficient approach to the management of both paper and electronic documents at all stages of the litigation.
In our recent Supreme Court Proceedings, eDiscovery was undertaken given the vast majority of documents in that case were stored electronically on servers maintained by the relevant plaintiff company. In total, the stored documents comprised millions of records.
In order to limit the scope of the documents, the parties agreed to apply key word searches over the electronic information to limit the review of documents to only those which were potentially relevant to issues in the proceedings. In addition to the key word searches, the plaintiff also adopted the following technological tools:
These tools were vital to reducing the time (and cost of) human review undertaken by a senior solicitor to review the documents for discovery purposes.
In the same way that eDiscovery is being adopted by parties and Courts alike, so too are eTrials. An eTrial is typically used for larger cases involving more than 500 key documents, or complex cases where there are multiple parties.
In our recent Supreme Court Proceedings, the parties agreed to conduct an eTrial in circumstances where discovery had been undertaken electronically. The parties engaged the assistance of an external service provider to assist with the evidence presentation in the court room, including managing the document presentation throughout the trial, hosting the online eCourtbook and managing document uploads to the eCourtbook.
The advantages of proceeding with an eTrial included that:
submissions and other documents (including affidavits of the evidence in chief) could be hyperlinked to relevant documents.
The process of eDiscovery, the use of assisted review technology and the conduct of eTrials in Queensland is becoming more commonplace as parties are more frequently adopting these processes.
Given the time and cost efficiencies to be gained, it is likely that the Courts will increasingly encourage the adoption of these technological processes moving forward. Indeed, the Court’s recent Practice Direction suggests electronic discovery is to become the “norm” in Queensland. It also has a particular advantage for Government in circumstances where documents are also stored electronically and where these processes can be adopted to minimise the time and expense involved with traditional methods of discovery and litigation.
  EWHC 256 (Ch).
  EWHC 1464 (Ch).
  IEHC 175.
 14 Civ 3042 (RMP)(AJP) (2 March 2015).
 (No 1)  VSC 734.
 Ibid .
Scott Couper, Partner
Jacqueline Ogden, Director