Ontario Judge Strongly Pushes for Greater Use of Technology in Courts and Orders E-Trial

In a case conference decision in the matter Bank of Montreal v Faibish, 2014 ONSC 2178 (CanLII), Justice David M. Brown expressed “profound frustration” at the failure of lawyers and judges to make greater use of technology while conducting litigation. He went as far as ordering an e-trial on the matter, over the expressed desire of some counsel to do an electronic and paper-based trial.
This is one of the strongest statements a judge has made with respect to the need for greater use of technology in the court system. No doubt, it will generate considerable discussion. The relevant portion of his decision is reproduced here:

[…snip…]

I. Mandated E-Trial for both actions

[1] In the last Case Conference Memorandum I asked counsel to consult as to whether the October 6, 2014 trial should be conducted as an e-trial. Some counsel (I will not indicate whom) communicated a desire to work in paper. BMO’s counsel indicated that the “paper” version of this trial would result in 10 binders of documents. At the same time BMO would be prepared to circulate a Summation-style database of relevant documents which could also be used at trial by those who so desired.

[2] Let me express my profound frustration as a judge who has tried to encourage both counsel and fellow judges to make greater use of modern information technologies in our Court. Those who make up the public court system – be they the judges adjudicating the cases or the counsel pleading them – provide a service to members of the public who face legal problems. While that service possesses some distinctive attributes – constitutional status, part of the foundation of a democratic system of government, etc. – it still remains a service. As a service it must be alive to the way in which the community it serves handles and communicates information.

[3] Our community has undergone radical changes in the way it handles and communicates information. Take music, as an example. As a teenager I treasured my collection of 45 rpms; today, my grandchildren would not know what they were looking at if shown one of the 45 snap-in inserts. A decade later 8-Tracks and cassettes were the rage; they have gone the way of the Dodo bird. Then CDs began their dominance, but are now rapidly fading under the onslaught of MP3s and other digital storage mechanisms.

[4] Providers of music to the public have had to adapt to changes in technology in order to continue to provide their particular service. Why should courts and lawyers be any different? Why should we be able to expect that treating courts like some kind of fossilized Jurassic Park will enable them to continue to provide a most needed service to the public in a way the public respects? How many wake-up calls do the legal profession and the court system need before both look around and discover that they have become irrelevant museum pieces?

[5] Our Court must choose: are we a Court of the Past or a Court of the Future? I vote for a Court of the Future, and therefore I will not accept counsel’s suggestion that the six-week trial for this complex commercial litigation on the Toronto Region Commercial List proceed using both paper and digital information. I know there are judges available who are chomping at the bit to conduct more e-trials. Paper must vanish from this Court and, frankly, the judiciary cannot let the legal profession or our court service provider hold us back. Accordingly, I order that the six-week trial of the Loretta and Brome Actions be conducted as electronic trials. More than enough time exists before the October 6 start date to organize the trial materials electronically. I order counsel to provide me with a formal e-trial plan at the June 26, 2014 case conference.

[…snip…]

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Comments

  1. Jean-Marc Leclerc

    Hear hear! But at what point will the court system move beyond Justice Brown’s occasional pleas to common sense?

  2. There are two separate concepts of paper at play in commercial litigation. Yes, physically handling documents can be cumbersome. It is the volume of information, however, that really lengthens trials and impedes access to justice.

    The first type of “paper” is a flat, single-sided surface made from cellulosic fibres covered in symbols made of molten carbon polymer. Reliance on this type of evidence will die out with the impending generational shift of trial counsel and clients’ refusal to pay for it on legal bills. All you have to do is remember files before cheap photocopying, to recall how thin the average counsel brief actually was. A whole trial brief could fit in one litigation bag. (That’s why they are called litigation bags.) This is the “paper” which occupies Justice Brown’s attention. It is a problem now, but one which will with time look after itself.

    The second is “paper” as a vernacular for any kind of written information. In commercial matters, this used to come in the form of the first definition of “paper,” and your obligation as counsel under the rules of documentary production required you to eliminate irrelevant items from relevant ones. Then, at trial, we narrowed cases down to one or two of these written instruments, and sometimes even one or two sentences. Some cases turned on one word, written on one page of the cellulosic form of “paper”.

    Now, the “paper” involves chains of emails into which little thought has been put into composition – more of “paper” that means less. Counsel are afraid to leave out documents from a trial brief. The cellulosic type of “paper” actually imposed some discipline on counsel because you were discouraged from burdening a trial judge with 10 or more binders of paper. From a human factors perspective, that physical limitation disappears once you are filling memory sticks with electronic briefcases. So Justice Brown now asks for 10 binders worth of information. One wagers he’ll end up getting 20 binders worth.

  3. Lee A makes a point, but it is offset to some extent by the searchability of most digital records. So finding the relevant parts of those 10 or 20 binders’ worth of electrons is relatively easier, certainly much easier than finding them on the cellulosic version.

    Counsel would be doing their job if they pared down the amount of digital information to what is likely to be relevant, as well – though that would involve understanding their case well, and preparing for it well ahead of time… Some do, some don’t. Some know relevance when they see it, some don’t.

  4. A glimmer of hope in an otherwise anachronistic industry.

  5. from boxes upon boxes to screen after scrollable screen oh joy

  6. The high probability of damage created by the very inadequate legal infrastructure controlling the use of e-records in e-discovery and admissibility proceedings, shows that we should not use technology until: (1) it has proven its reliability; (2) lawyers and judges understand it adequately; and, (3) it has an adequate legal infrastructure, i.e., adequate laws & personnel to create, interpret, apply, and enforce it.
    Examples of the negative consequences of such inadequate understand are: (1) the “review” process of e-discovery is prohibitively expensive; (2) the law of e-discovery enables the use of records of dubious reliability; (3) the Sedona Canada Principles texts are the faulty product of an inadequate understanding; therefore making Sedona Canada part of the law of e-discovery has created a very inadequate legal infrastructure; and, (4) similarly, admissibility proceedings enable the use as evidence of records of dubious reliability.
    E-records technology is a different technology than pre-electronic paper records technology, as much so as a horse, a car, and an airplane incorporate different technologies, although they all involve transportation. Therefore, each needs its own unique legal infrastructure, otherwise it will hurt people, damage property, and the evidence it produces will cause inadequate and unfair judgments. For example, motor vehicle transportation would be too dangerous to use without its current legal infrastructure, which must be vastly different and greater than that which controlled horse-powered transportation systems.
    So learn it before you love it, and before you use it as the foundation of laws. For example, the following are ignored by lawyers and judges: (1) the “system integrity concept” of the e-records provisions of the Ontario and Canada Evidence Acts; (2) the National Standards of Canada for e-records management, which are based upon the same concept; and, (3) the fact that the work of experts in e-records management systems (ERMS’s) is based on that very same concept, which states: proof of e-records “integrity” requires proof of the integrity of the ERMS in which the records are stored: s. 34.1(5),(5.1) OEA & s. 31.2(1) CEA.
    The solution to the high cost of “review” for e-discovery: make the preparation work of a lawyer making production comparable to that of an accountant. The client doesn’t give the accountant 100,000+ records and say, “here, you make up our financial records and then do the audit.” The litigation lawyer should be able to work the same way, by combining the searching and reviewing into one act. That is how legal research is done, with the aid of headnotes, particularly their indexing. So, show the client how to make a comparable index of the client’s own records, which will give the client as much useful information for doing business daily, as do its financial records, as well as provide continuous preparation for e-discovery and trial. Then the high cost of the “review” stage of e-discovery will disappear. The lawyer would use the client’s index of records to prepare to make production–searching with the speed of electrons, instead of reading each record for relevance and privilege, or using a TAR device (technology assisted review device) which devices are based upon a faulty concept of e-review, and still without a history of proven reliability. Again, the successful solution requires an adequate understanding of available technology. Learn it before you love it, whether it’s an electronic trial, an atomic bomb, or the consequences of striking a match or burning your toast.
    I’ve worked with experts in electronic records management for decades. As a result, I have written these 3 articles:
    (1) “The Dependence of Electronic Discovery and Admissibility upon Electronic Records Management,” in Slaw blog, Nov. 22, 2013 edition;
    (2) Electronic Discovery—Sedona Canada is Inadequate on Records Management—Here’s Sedona Canada in Amended Form” (2011), 9 Canadian Journal of Law and Technology 135; and,
    (3) “Why a Legal Opinion is Necessary for Electronic Records Management Systems” (2012), 9 Digital Evidence and Electronic Signature Law Review 17, a U.K. “open source” journal, i.e., providing free downloading of its articles.
    And see also: e-Discovery for Dummies (Wiley Publishing, Inc., 2010, 346 pages; $23.82 at Amazon.ca); particularly, Chapter 14: “Managing and Archiving Business Records” (pp. 235-250).
    Then re-read the 4 Sedona Canada texts. — Ken Chasse (“Chase”), member, LSUC & LSBC.

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