Preparation for discovery in the digital age
The use of back-up tapes is one method of preserving electronic material. Some trust companies rely entirely on back-up tapes as an electronic storage system. The reliability of back-up tapes may depend on how frequently the process is carried out and whether, and how frequently, 'full back-up' is done. The back-up tape system was initially created to aid in the recovery of electronic documents in the event of a disaster and it is arguably no longer adequate for current record management purposes.
The disadvantages of only using a back-up tape storage system can include the following:
- Tapes are often stored at a number of different offsite places, rather than in a single onsite location. However, this can also be a disadvantage for disaster recovery and additional back-ups should always be held offsite.
- A storage environment for re-creation of the tapes must be constructed, for example the purchase of appropriate tape drives and storage software. Also, technology may have advanced and the tapes may need to be reproduced in an updated form before re-creation can commence, thus adding to the time and cost of the exercise.
- It is time-consuming identifying which tapes, of potentially thousands, contain the required information. One has to then restore those tapes and remove any duplication created on the tapes,44 only to then commence the task of identifying the relevant messages.
- The metadata from email files are not always maintained correctly, and could have potentially been altered in a legally significant way.
- The formats in which these documents can be produced for discovery, e.g. PST, PDF, or TIFF may not all be available using the back-up tapes.45
An example of what can happen when a party has depended upon the use of a back-up system was the Phen-Fen case.46 In that case, Wyeth was required to produce documents for disclosure which had been stored only on back-up tapes. Wyeth reportedly settled with the plaintiff rather than paying the estimated discovery costs of up to US$1.7 million.47 Similarly, in Murphy Oil USA, Inc. v. Fluor Daniel, Inc.,48 the defendant adduced evidence that it would cost US$6.2 million and would take six months to produce the emails stored on back-up tapes.
Client Record Management Systems
The best form of preparation that a trustee or any organisation can undertake prior to any contemplated litigation is to acquire an up-to-date electronic records management system, prior to the commencement, or even anticipation, of litigation.
It is important to ensure that whichever system the trust company chooses to employ, it can also retain and maintain emails even if no separate email retention system has been put into operation. The more prepared a party is for electronic disclosure, the lower the costs and time spent searching for relevant material when litigation is contemplated or commenced.
The four main processes affecting the storage of electronic records are:
- Accession - placing records in to a storage area on the system.
- Structure - ensuring that the records are structured to aid any future retrieval and destruction.
- Security - ensuring that the records will be protected from unauthorised use and from deterioration of file formats or mediums.
- Retrieval - ensuring that records can easily be accessed.49
Further, an email record management system must be able to do the following things in order to maintain the integrity of an email, and thus the weight to be attached to it in evidence:
- Manage emails and their attachments as a single entity. For obvious reasons it is important to view the email in its context and together with any attachments sent;
- Maintain the attributes (e.g. sender, cc, etc) of each email;
- Store the metadata associated with the email so that it can be recorded to an electronic research database; and
- Export emails together with associated attachments and metadata.50
In addition to these storage capabilities, an email management system will be significantly more useful for the purposes of discovery if it also contains the following features:
- No user involvement – this will remove the risk of deletion and personal storage styles. That is not to say that individual users will have their email filing methods curtailed, but the underlying system will do the job for them.
- Indexing of all content – this will decrease time spent later searching for related emails.
- Providing the end user with access to archived emails – this allows attorneys to inspect and review the documents without the need for any IT specialists.
- Protection from tampering – the archived emails can be maintained by an external programmer.
- Flexible storage media options – the system can produce documents in acceptable media formats for disclosure.51
An email archive system, rather than storing emails on back-up tapes, stores the email and related data on quick-retrieval storage systems that can be integrated with existing applications. This system captures and stores all emails going to, from and within the organisation. This avoids the possibility of both deliberate and inadvertent deletion of emails. A large number of the archive systems are able to perform powerful web-based searches and retrievals and provide the retrieved documents in a number of different formats for production.52 Archiving systems also allow for storage of emails with large attachments. This can enhance the speed of the server and other applications, while still allowing quick retrieval of the email and attachment when required.53
Whichever electronic records management system is used, it is essential that it is capable of storing authentic documents reliably and accurately. If a party to litigation can show that the document has not been tampered with during migration from one medium to another, or during storage, it can pre-empt the timeconsuming and costly task of authenticating a document at the time of proceedings.54,55
Imaging and indexing systems can be used by trustees and lawyers in preparation for litigation. These systems index all of the disclosed documents, and the range of the indexing can be customised to each particular case. The indexing will be accompanied by scanning the documents so that they can be easily viewed and documents received electronically should be simple to add. These systems replace the traditional system of boxes of documents being reviewed and manually indexed.56
These systems present a considerable initial cost but the amount of time and money saved in the future will be significant. These systems can also be rented for the duration of a case if the up-front cost outweighs the likelihood of the case continuing to trial. Systems can usually be rented for a fixed monthly cost, which may be more convenient and can also be more easily charged as a disbursement in an individual case.57
Tactical use of electronic information
When reviewing the other side's electronic documents it is important to consider carefully whether anything is missing – the metadata of emails or word-processed documents for example could indicate whether there are any gaps in the evidence received. For example, if the metadata of an email shows that this email was sent to a certain person but there is no response from that person, it could mean that some emails have not been produced. It is also an excellent factual resource to prove "who knew what when" arguments. This exercise can only be carried out by viewing such disclosure in an electronic rather than paper-form.
Once documents have been produced by the opposing party, one of the best advantages a litigious team can have is the ability to understand and use the new record management systems. This will produce the greatest value from searching electronic documents. In an unreported UK case "an IT-literate lawyer revealed key evidence that did not appear on the paper copy and resulted in the case settling".58
Digital Media In The Courtroom
Several digital courts have been created in a number of countries which demonstrate the possibilities for court systems, and the legal system as a whole, in the future. These courts typically include high capacity infrastructure such as plasma display screens for all parties, the judge, witnesses, the public gallery, and where appropriate the jurors. Some courts also offer high speed access to the internet and the ability to provide live TV and video links.59
Electronic filing of applications/submissions/pleadings
The growth in internet usage around the world has increased significantly in the last five years60,61 which has enabled a number of jurisdictions to allow parties to file documents electronically.
A small number of UK courts allow for parties to communicate with the court via email, and file documents, which do not require a fee, via email or via an online forms service. A listing of the courts that provide these electronic services is listed on the Court Service website. When the document has been received by the court an email receipt can be sent back to the solicitors involved to confirm receipt and filing of the documents.62
In the UK, some County Courts allow limited electronic filing and correspondence by email with the court. One County Court also allows parties in ongoing proceedings to issue and serve applications by email.
The Employment Tribunals Service now permits complaints and employment tribunal applications to be made online. This service has caused some controversy, particularly when a user submitted an application online that was received by the host of the website, but due to technical difficulties, had not in fact been transferred to the Tribunals' mailbox.63
Evidence systems have been introduced in some Crown courts across the UK but not as yet into the civil courts.
In Australia, the Federal Court and the Magistrates Court of Victoria, numerous Magistrates Courts throughout Queensland and a number of other courts have implemented active e-filing systems.64 The Magistrates Court of Victoria has offered e-filing for over a decade.65
Canada's Federal Court implemented an electronic filing pilot in October 2005 created specifically for the Canadian court system by LexisNexis Canada Inc.66
Singapore is the most advanced in e-filing court systems, with the world's first nation-wide paperless civil court system. It has been compulsory to file documents electronically since March 2000.67
Finland has allowed electronic filing since 1993, however the use of these systems elsewhere in Europe has been very low.68
In the Cayman Islands, the Court sometimes requests parties' submissions and draft orders to be made available in electronic format.
The British Virgin Islands has enacted procedural rules to permit electronic record/filing of documents but no Practice Direction has yet been introduced.69
In future, these filing systems could save courts an enormous amount of time and money. If the documents are filed electronically it will be more efficient to maintain electronic case management systems where documents, video and other forms of media can all be stored and viewed as one bundle of documents. This will also make it possible for the court and the adjoining parties to access certain of the filed documents and track the progress of the case through one online system (with the appropriate security to maintain confidentiality, where appropriate). This will have a number of benefits including:
- reducing the workload of court registries;
- narrowing the window for error or loss of documents; and
- increasing the access to all relevant documents of different types of media.
As cases progress it will also be possible for the electronic case file to be easily transferred to the next court.70 Hopefully, this will put an end to the all too familiar cry that "we lost the file".
Presentation of live evidence
There is the potential for courts to provide a system for evidence presentation which allows for all those in the courtroom participating in the proceedings to view documents related to the case on screen, in order to ensure that everyone is viewing the same document. This system will also remove the need for multiple paper copies being distributed to counsel (and jurors) in the middle of a hearing.71 These documents, as well as videos, DVDs and other material, can be added through litigation support systems used by the court and the parties. It is estimated that evidence presentation systems could take 20% off the time it takes to run fraud cases with paper document bundles.72
In-court document cameras can also be used to view additional documents which have not been scanned into the system prior to the commencement of proceedings. Document cameras are now widely sold throughout the world. Although courts in many jurisdictions ban cameras that are designed to record proceedings, there can be no real basis upon which to object to document cameras, used for the specific purpose of viewing documents. Countries where some courts, other than demonstration courts, have installed document cameras include Australia, Scotland, Ireland and the United States of America.
Courts that provide services to file documents electronically will automatically be able to add these documents to the evidence presentation system. These electronically filed documents can be maintained by the court in a computer case management system and then added to the in-court presentation system, thereby eliminating, or at least reducing, the need for documents to be printed.73
Digital courts also feature real-time court reporting using an in-court stenographer. The transcript automatically appears on the screens in the courtroom. The judge is able to take notes directly beside the progressing transcript and parties can use the direct transcript for review and questions during court time. It is possible to code (e.g. by use of colour) evidence given by a particular witness or on a particular subject, issue or even in relation to a particular word to enable quick searching – an invaluable tool for cross-examination. These live transcripts (in open court) can also be projected to legal assistants, clients or other advisers not present in the courtroom via high-speed internet.74
Video-conferencing is also available in many courts to allow for people unable to be present to participate in proceedings. This technique is already used in a large number of courtrooms.
The benefits of using electronic litigation support systems are undeniable however, their true potential will not be realised until the court systems catch up with technology.75
Possibilities for international hearings
Courtroom 21 in Williamsburg, Virginia, USA, is a test project for the technological possibilities for court systems in the future. In a test case in April 2005, related to abduction of children, one judge sat at the bench in Courtroom 21 and the other in Monterrey, Mexico. They both listened to evidence and reached a joint decision on the case. Although simply a test case, it is clear that in the future disputes crossing legal systems could be decided in such a way. With the expanding use of the internet and electronic business, a number of disputes arise relating to the jurisdiction of certain business activities. The integration of court systems in the way demonstrated by the Courtroom 21 exercise established many possibilities for future dispute resolution.
This is significant in the context of international trust litigation, in which third party agreements are frequently governed by foreign law and/or the parties themselves are located in different jurisdictions.
Going forward, the potential for change in the trust industry and in our legal systems is immeasurable. Legislation has been changing to accommodate the growth of technology at a relatively slow pace. With the increased use of email and other communication tools such as PDAs and wireless handheld devices, it is becoming increasingly important for users to adapt to and take advantage of new technologies as quickly as possible.
It is impossible to predict which new technological developments will be created and implemented. The only certainty is that internal systems will have to continue to keep pace with new technologies. This will have a direct impact on trust administration and the manner, time and cost of resolving trust disputes. In this digital age, trustees need to focus increasingly on filing and storage of electronic information but above all, how to retrieve it and how best to use it.
1. European Travel Commission, World & Regional Overview, 2006.
2. International Data Corporation (IDC is the premier global provider of market intelligence, advisory services, and events for the information technology and telecommunications industries. 775 IDC analysts in 50 countries provide global, regional, and local expertise on technology and industry opportunities and trends.) You have mail: 31 billion a day by Nick Farrell, vnunet.com; 30 September 2002.
3. Complete Disclosure by Jonathon Crook, Jonathan Tariff and Andrew Szczech; LegalWeek 17 November 2005.
4. Hobbes' Internet Timeline Copyright 1993-2005 by Robert H Zakon, Zakon Group LLC.http://www.zakon.org/robert/internet/timeline
5. Some Practical Lessons for Trustees Arising from the Esteem Litigation by Danial Hochburg; Private Client Business 2005, 2, 69-82.
6. Gruppo Torras SA and another v AL Sabah  JLR 188.
7. Electronic Transactions Act 1999.
8. Electronic Transactions Act 1999.
9. Electronic Communications and Transactions Act 2003.
10. Electronic Transactions Law (2003 Revision).
11. Electronic Communications Act 2000. Note also the EU Electronic Signature Directive (Article 2(1) which provides that a valid electronic signature must be data in an electronic form, attached to or associated with other electronic data and which serves as a method of authentication.
12. U.S. Military's PDF Fiasco Was Avoidable, May 3, 2005 by David Coursey, eSeminars, Copyright (c) 2006 Ziff Davis Media Inc.
13. Email Communication for Client Matters – A Multinationed Survey © 2000 Lance Johnson, Kojiro Furusawa, Juan Carlos Ojám, Steven L. Nemetz, Andrew Braithwaite, and John Dean; June 4, 2000.
14. As above.
15. Practical Considerations in Maintaining Privilege by Julian Copeman and Kate Hurford; Journal of International Banking Law and Regulation 2005, 20(8), 360-369.
16. Is Digital Different? Electronic Disclosure and Discovery in Civil Litigation by Kenneth J Withers.
17. Zhu v. Pittsburgh State University 2003 US Dist LEXIS 6398 (D. Kansas Feb. 5, 2003).
18. Simon Property Group v. mySimon, Inc.194 F.R. D.639 (S.D. Ind. 2000) at 640.
19. Legal Position of Email Disclaimers by Simon Halberstam; Sprecher Grier Halberstam LLP Weblaw 2000.
20. Istil Group Inc v Zahoor  2 ALL ER 252.
21. Practical Considerations in Maintaining Privilege by Julian Copeman and Kate Hurford; Journal of International Banking Law and Regulation 2005, 20(8), 360-369.
22. 298 F. Supp. 2d 1154 (D. Kan. 2003).
23. Re C.A. Settlement (Royal Court)  JLR 312.
24. Schmidt v Rosewood Trust Ltd  2 AC 709.
25. Foreman v Kingstone and Cave  1 NZLR 841 at 859 per Potter J; Re Rabaiotti 1989 Settlement (Royal Court)  JLR 173.
26. Subject to the constraints of a proper and reasonable document retention policy.
27. Byers v Illinois State Police, 53 Fed. R. Serv. 3d 740 (N.D. III. May 2002), Magistrate Judge Nolan.
28. Electronic Disclosure: A Report of a Working Party Chaired by the Honourable Mr Justice Creswell; 6 October 2004.
29. Complete Disclosure by Jonathon Crook, Jonathan Tariff and Andrew Szczech; LegalWeek 17 November 2005.
30. Putting Litigation Support on Trial by Julian Baker; LegalWeek 4 September 2003.
31. For example, the Cayman Islands have not adopted a form of the English CPR but it has embraced the concept that the overriding objective is to deal with matters in a just, expeditions, economical and proportionate way (Preamble to The Grand Court Rules (revised edition)).
32. E-Disclosure and Amendments to the CPR, Davies Arnold Cooper; Wire November 2005.
33. As above.
34. Zubulake v UBS Warburg LLC, SDNY, No. 02 Civ. 1243.
35. Zubulake v UBS Warburg LLC, 2003 WL 21087884 (SDNY May 13, 2003).
36. Zubulake v UBS Warburg LLC, 2004 WL 1620866 (SDNY July 20, 2004).
37. Zubulake v UBS The Significance for Records Management: New Risks – New Remedies published by Interwoven Inc.
38. Litigation Management: E is for E-disclosure by Stephen Mason; LegalIT 28 July 2005.
39. Email Discovery: Tape is not Enough by Brian E Seward, Esq; AIIME-DOC Magazine September/October 2005.
40. (Time Magazine 9/20/2004) quoted in above reference.
41. U.S. v. Phillip Morris USA, No. CIV.A.99-2496, 2004 WL 1627252 (D.D.C. July 21, 2004).
42. Zubulake v UBS Warburg LLC, SDNY, No. 02 Civ. 1243.
43. Litigation Management: E is for E-disclosure, Stephen Mason; 2005.
44. Only true duplicates can be removed since tiny differences mean that the document is a different document for the purposes of disclosure.
45. Email Discovery: Tape is not Enough by Brian E Seward, Esq; AIIME-DOC Magazine September/October 2005.
46. Linnen v. Robins 1999 WL 462015, 10 Mass.L.Rptr. 189 (Mass Super. Court, 1999).
47. Email Discovery: Tape is not Enough by Brian E Seward, Esq; AIIME-DOC Magazine September/October 2005.
48. 52 Fed. R. Serv. 3d (Callaghan) 168.
49. Welsh Electronic Records Management Group Evaluating an electronic storage system by Jayne Pucknell.
50. Email Arching – An Update from Europe by Dan Lucarini and Jon Heflet; AIIME-DOC Magazine May/June 2002.
51. The Impact of Regulations on Email Archiving Requirements © Osterman Research Inc. 2003 sponsored by Information Management Research.
52. Email Discovery: Tape is not Enough by Brian E Seward, Esq; AIIME-DOC Magazine September/October 2005.
53. Email Retention: Time for a New Approach by Thomas Y Allman; AIIME-DOC Magazine September/October 2005.
54. Will Your Company's Electronic Records Storage Withstand Legal Scrutiny?, Charla Griffy-Brown, PhD, Stepheni Bodo, and Linnea McCord, JD; Graziadio Business Report 2005, Volume 8, Issue 1.
55. "Growth in email volumes combined with increased attention to regulatory compliance and corporate governance issues drove email archiving revenue to top $193 million in 2004, up 96% from the prior year. Although basic email archiving functionality is expected to become available in messaging and storage applications, many organizations will continue to gravitate to dedicated solutions that provide a better fit for compliance and corporate governance requirements and integration with existing infrastructure." — Vivian Tero, senior research analyst for Compliance Infrastructure, and Mark Levitt, VP for Collaborative Computing, IDC - Article: Worldwide Email Archiving Applications 2005-2009 Forecast and 2004 Vendor Shares: When You Need to Know That You've Got Mail by Vivian Tero, Mark Levitt and Doug Chandler; December 2005.
56. Putting Litigation Support on Trial by Julian Baker; LegalWeek 4 September 2003.
57. As above.
58. Data, data, data by Michael Taylor; LegalWeek 26 January 2006.
59. Putting Litigation Support on Trial by Julian Baker; LegalWeek 4 September 2003.
60. European Travel Commission, New Media Review, 2006.
61. Internet World Stats: usage and population statistics by The Internet Coaching Library.
62. Civil Procedure Rules, Practice Direction 5b – Pilot Scheme for Communication and Filing of Documents and Applications by E-mail.
63. See Tyne and Wear Autistic Society v. Smith  I.C.R. 663. It has also been held in the Employment Appeal Tribunal that in order to meet the filing deadline, a Notice of Appeal lodged by fax or email must be recorded electronically as received in its entirety by the appeal tribunal by the relevant deadline: Woodward v. Abbey National Plc (No 2); J P Garrett Electrical Ltd v. Cotton, EAT 26 July 2005.
64. Putting Litigation Support on Trial by Julian Baker; LegalWeek 4 September 2003.
65. E-Law, Murdoch University Electronic Journal of Law, Vol. 9 No. 4 December 2002; Electronic Litigation Filing in the USA, Australia and Germany: a Comparison; Michael Griese.
66. eFiling Launches in Canada; CCNMatthews 6 October 2005.
67. Putting Litigation Support on Trial by Julian Baker; LegalWeek 4 September 2003.
68. As above.
69. Eastern Caribbean Supreme Court Civil Procedure Rules 2000, Rule 3.6(2), applicable to all civil proceedings in the Eastern Caribbean Supreme Court in Anguilla, Montserrat, the British Virgin Islands and Member States.
70. Resolving and Avoiding Disputes in the Information Age: A Lord Chancellor's Department Consultation Paper; Department of Constitutional Affairs September 1998.
71. LiveNote has been used in large scale fraud trials in the Cayman Islands.
72. Putting Litigation Support on Trial by Julian Baker; LegalWeek 4 September 2003.
73. As above.
74. As above.
75. As above.
Acknowledgments also go to Meaghan Jones and Christina Bélargent of Walkers for their contributions to this paper.
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.