Federal Court requirements for electronic discovery and metadata

Electronic discovery in the Federal Court of Australia (FCA) is nothing new.  From July 2014, the FCA began implementing the Court’s electronic court file (ECF) across its Australian registries.  This enabled the Court to embrace the use of technology in proceedings, including the use of electronic discovery, eLodgement, eTrials, eCourtroom, and video conferences.

What just what is electronic discovery?

Electronic discovery refers to discovery provided in legal proceedings, where the information and documentation sought is in electronic format.  According to the Technology and the Court Practice Note (GPN-TECH) (Technology Practice Note) parties should agree on a protocol for electronic discovery.  The Court has outlined a default format for trial purposes, the Default Document Management Protocol (Document Management Protocol).  The protocol considers how electronic documents will be exchanged and managed, including:

• how to describe documents for any list of documents (creating document IDs);
• the structure and format of documents to be discovered;
• the method to electronically exchange documents;
• what data security is required;
• how to manage errors in exchanged documents;
• procedures for redacted documents, privileged documents, confidential documents; and
• the process for de-duplication of documents and email threading.

Schedule 3 of the Document Management Protocol states that every document that is attached to or embedded within another document is an “Attached Document”.  The term “Electronic Document” is defined in the Technology Glossary of the Technology Practice Note as:

“a Document or component of information that was originally created using a computer system, software application or database.  This is often referred to as Electronically Stored Information (‘ESI’).  The Metadata embedded within an Electronic Document is considered part of that Document.  The definition of Electronic Document includes an email, email attachment or a Loose File.  A Container is not an Electronic Document for the purposes of Technology and the Court Practice Note (GPN-TECH) and Technology Resources”.

The Technology Practice Note is to be read in conjunction with the Central Practice Note (CPN-1) (Central Practice Note).  Part 10 of the Central Practice Note deals with discovery and provides that:

“Where discovery is necessary, the Court expects the parties and their representatives to take all steps to minimise its burden.  This involves co-operation between the parties. 

Discovery must be made in good faith, uninfluenced by any negative impact on the Discovery Respondent (other than legitimate considerations such as genuine legal professional privilege or commercial confidentiality), and should be comprehensive, but proportionate”.

The term “native electronic document, or native form” is defined in the Technology Glossary of the Technology Practice Note as:

 “an Electronic Document, stored in the original form in which it was created by a computer software program”.

 The term “Metadata” is defined in the Technology Glossary of Technology Practice Note as:

 “’data about data’.  In the case of an Electronic Document, metadata is typically embedded information about the Document which is not readily accessible once the Native Electronic Document has been converted into an Electronic Image or Paper Document.  Metadata may be created automatically by a computer system (‘System Metadata’) or may be created manually by a user (‘Application Metadata’). Depending on the circumstances of the case, Metadata may be discoverable”.

Why is metadata important in electronic discovery?

The fragility of metadata must be considered when discovering electronic documents particularly emails.  The metadata of an email can contain a wide array of information, such as the way an email chain ‘fits together’ or how attachments fit within that email chain.  The process of forwarding an electronic document, such as an email, to another person may alter some of its properties and destroy metadata.  According to the Law Council of Australia’s Case Management Handbook for the discovery of documents:

“Electronic documents commonly include a record of information relating to their creation and alteration referred to as ‘meta-data’.  Meta-data may include the file name of the document, the username of the creator of the document, the date of its creation and modification and when it was printed.  In the case of emails, meta-data will include the name of any document attached to the email.  Meta-data can be thought of as information about information.  Depending on the issues in dispute, it may have significant forensic value.  Where an electronic document is discovered, the associated meta-data comprises part of the document and is therefore prima facie discoverable.“

Takeaways on meta data and discovery

When discovering emails, it is important to understand that metadata is that embedded in each email.  An email carries information about its creation date, author, attachments and the identities of all recipients, including those who received a carbon copy (cc) or blind carbon copy (bcc) as well as a whole raft of other information.  Metadata can only be accessed, captured and viewed when the respective document is in its “native form”.  If not done correctly, metadata may be destroyed, leaving a potentially valuable piece of evidence open to allegations of fabrication.

Links and further references

Legislation

Central Practice Note (CPN-1)

Default Document Management Protocol

Federal Court Rules 2011 (Cth)

Technology and the Court Practice Note (GPN-TECH)

Further information about e-discovery

If you need advice on the Federal Court of Australia’s requirements for electronic discovery of documents and preservation of metadata, contact us for a confidential and obligation-free discussion:

Disclaimer

This article contains general commentary only.  You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

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