Electronic litigation mandated

Tags: litigation | enterprise 2.0

canon_powershot_sd800 It's crunch time to get serious about electronic document management and retention if your company or organisation wants to win in litigation.

Recently expanded Supreme Court and Federal Court rules put huge pressure on litigants to have documents in an ordered and electronic format for inspection and examination in the litigation process. For example, the Federal Court's requirements are in its January 2009 Practice Note 17. It can apply when there are more than 200 documents in a litigation matter.

blackberry_storm_front In Australia legislation has long mandated that individuals and organisations must keep a wide range of documents and records for specified periods of time. We supply a table to clients for that compliance need. Obvious obligations apply for keeping tax records and company register documents, but there are many others.

Practice Note 17 sets out requirements relevant for electronic document retention and document management in readiness for use in litigation. Australian law has long ago moved to a definition of "documents" which includes electronic files in all formats, certainly audio files, videos, photographs and emails sent on any type of device (PC, Blackberry, Webmail) are included.

Test readiness for electronic litigation

Right there on the first page of Practice Note 17's Default Document Management Protocol there's requirements for mandated electronic litigation with which few SMEs could promptly comply.

It's in Paragraph 2.1 (reproduced below) of the Protocol. It sets out the identifications required for electronic documents in e-discover and court proceedings. Most SMEs don't keep document lists or document databases. Few have a documented procedure for backing up and retaining emails. Some don't have even a standardised system for giving documents and electronic files a title or date!

2.1 All Documents to be exchanged between the parties and delivered to the Court will be described in a List of Documents containing the following information for each Document:(a) Document ID (see Schedule 1 for details)
(b) Document Title
(c) Document Type (see Schedule 7 for details)
(d) Document Date
(e) Author (see Schedule 2 for details)
(f) Recipient (see Schedule 2 for details)
(g) Host Document ID (see Schedule 3 for details)
(h) Folder and Filename (see Schedule 4 for details)

signature_loan_document For individuals and commercial and not-for-profit organisations, electronic document retention, and more broadly document management, are now critical for effective action in litigation, hence for survival and growth.

If you have forms for customers and others to fill in, which you are not converting to electronic format, then with Practice Note 17 you've now got another inventive to do so.

It should not take a fire to prompt action... but that's the reality with many SMEs.

To audit your situation test your readiness for electronic litigation. Consider the following common types of business litigation.

Legal fire by Government Regulatory Body: You receive a letter from the Australian Competition or Consumer Commission or from a state department of fair trading. It asks questions relevant to your organisation's compliance (or lack of it) with trade practices or fair trading laws. Do you have a trade practice compliance program and training program in place and are related documents kept in electronic format? Do you have all emails sent on mobile devices by sales staff backed up centrally?
Legal fire by Competitor: Your organisation becomes involved in litigation caused or commenced by a competitor. On request, could you promptly prepare a zipped file of documents, emails and filled in forms in electronic form for efficient assessment of them by solicitors and barristers? If not, the shortfall will hamper efficiency in dispute resolution and orderly management of litigation.
Legal fire by Former Employee: You have some evidence that a departing employee of your organisation has taken confidential or proprietary assets. Maybe it is a customer list and contact details, secret information about suppliers like how much they order and their discount levels, a unique formuale or methodology, a full set of valuable template documents, programmer code, or a copy of a unique software program. Do you have electronic copies of documents evidencing such things? Do you have an electronic copy of metadata for such assets, eg an intellectual property register or more broadly an intellectual capital register or even your own complete electronic set of things taken?

Map your data

To more fully assess readiness for mandated electronic litigation and e-discovery in court proceedings, review the court practice guidelines listed below.

When an SME has no document management system in place, let alone a policy and procedure for electronic document retention, there's only a blunt sword with which it might fight a legal case, and a weak shield with which it might defend its position.

Consider the scale of the problem. If litigation arises, a data map is needed to find legally relevant information. If there's no document system in place then it is vastly more costly to map the path forward in dispute resolution and litigation. A system helps map - dates, people involved, categories, and locations for documentary evidence.

What we offer

Over almost a decade we've featured writing on the subject of "document retention". This reflects the importance we give to knowledge management.

In our experience, small and medium-sized enterprises (SMEs) in Australia are very poorly prepared for the change towards electronic discovery in litigation. Most leave the subject of a formal document management systems in the "too hard" basket.

Don't leave it till a legal fire starts before you improve your electronic document management and retention system. We can pull together a multi-disciplinary team to serve the needs of most SMEs needing to respond to the new court rules and get them fighting fit in case there is a need to be involved in litigation.