Allison Stanfield, CEO of e.law International, examines recent decisions in Australian courts regarding metadata and native format documents in the discovery process. There are a number of recent Australian cases that provide that documents delivered as part of discovery must be produced in their native format.

In Drilling & Grouting Services Pty Ltd v Carpentaria Gold Pty Ltd (2010), the respondent sought additional discovery from the applicant, including any document capable of being provided as a print-out from an electronic file to be also “provided by delivery of an electronic copy of that file in native format,”and made this claim with regard to Federal Court Practice Note CM6.

The applicant counterclaimed that discovery of the relevant documentation in native format would necessarily lead to the discovery of an entire database which included information not relevant to the proceedings and to which the respondent was therefore not entitled access to.

With respect to various financial reports, however, the court provided that: “The respondents are entitled to see the documents in their electronic form and, again, if they exist, they should be provided in native format.”

The court also acknowledged that documents in their electronic format had the potential to be not only useful in the pre-trial process, but also at the trial itself.

Similarly, Automotive Dealer Administration Services Pty Ltd v Kulik & Ors (2010) concerned the alleged improper use of customer information by the defendant while he was in the employ of the plaintiff company, such that a customer database was taken or accessed by the defendant to establish a new company.

In the discovery process, the defendant's data-base (the “ADS database”) was requested for further inspection by a computer forensics expert for the purpose of providing expert opinion with respect to when the data in the ADS database came to be included in it.

It was also stated that the forensics expert would inspect the database to establish whether the data was obtained from the plaintiff's customer database or from other sources, an issue which was critical to the proceedings. The forensics expert also required access to the server on which the database was located as well as to other computers networked into the same server, in furtherance of establishing when the information was entered into the database.

The defendants sought to restrict additional access to the database based on the reasoning that an agreement regarding its initial inspection should be considered final and binding as well asand for the additional reason that the plaintiff's request constituted a “fishing” exercise.

Justice Mukhtar rejected both arguments by the defendant and granted the application for the database to be inspected by the computer forensics expert, along with the server and networked computers. In discussing the discoverability of the database, the judgment describes the database as being both a “document” and “property” for the purpose of its inspection.

The judge further stated that, “it appears to me that the nature of the investigative exercise is such that it now does require the involvement of a computer expert to look into or “interrogate” the database and the server and the network computers to truly make the most of the discovery process.”

Conclusion

Recent cases in both Australia and the US remind us how e-discovery is becoming an ever more critical element in pre-trial discovery. These decisions demonstrate that we can increasingly expect the mere production of “paper-based” files in an image format to be insufficient for the purposes of full discovery.

Text-searchability is becoming an important function for legal professionals faced with large volumes of documentation to be inspected both prior to and during trial, and at a minimum, therefore, the provision of searchable electronic documents is critical. This trend is clearly reflected in the Federal Court Practice Note on the subject, and was a key argument in favour of the production of metadata in both the US “Day Laborer” judgement and the 2006 Jarra Creek Central Packing Shed case.

What is also clear is the necessity for parties to establish a sufficient electronic document exchange protocol in advance of discovery. Metadata, and by default therefore also documents in native electronic format, have the potential to be of incalculable importance to parties engaged in litigation, and a clear and detailed electronic document exchange protocol not only ensures that parties obtain the information that they need from the outset, but also assists legal processes in becoming more efficient by helping to prevent the kind of discovery-related disputes that evidently have the potential to arise.

The migration to 'paperless' record-keeping in all contexts, whether for business, government or individuals, will continue to awaken complex issues regarding the completeness of documentation and the provision of metadata in discovery.

How this will affect the responsibilities of third party information technology service providers in the legal realm is yet to be fully fleshed out. What we can be certain of, however, is that as technology encroaches upon and becomes an ever important part of legal processes, so too will legal processes need to be a consideration of people and businesses providing technology solutions to others.

Allison Stanfield co-founded e.law Australia (now e.law International) in 1999 as an independent legal/IT Consulting organisation. Allison holds Bachelor of Laws (Hons) and Master of Laws degrees from QUT and she is currently undertaking her PhD in the authentication of electronic evidence.