Technology in the Civil Justice System
What became clear to me in my meetings with the Technology Advisory Committee is that there are three aspects to the use of technology in civil litigation: (a) between lawyers/parties; (b) by the court; and (c) by courts administration.
Technological Solutions between Lawyers
It appears to me that the bulk of technological solutions that can assist in reducing cost in civil litigation are those used by and between the parties. I wish to point out only a few examples to explain the potential benefits.
As referenced in the section on Discovery and recommended in the E-Discovery Guidelines and The Sedona Canada Principles, parties are encouraged to discuss the use of technology early in the litigation process. In particular, they should address how documents are to be produced electronically and how information will be shared. Once electronic production is agreed on, documents may be imported into the litigation management software employed by the respective lawyers. This software may be used to quickly search and retrieve all documents relevant to the case and make cross-references to pleadings, transcripts and other notes made by counsel. It offers significant time savings that simply cannot be achieved in a paper world. Producing paper (hard copy) will frequently result in significantly higher costs to the parties. There often is a better way.
Large volumes of paper documents may be scanned as image files and exchanged on CDs, often at substantially less cost than would be involved in producing a similar number of photocopied sets. For example, in a case involving 50,000 documents, the cost of producing five copies of each document at $0.25 per page is $62,500. In contrast, scanning the documents by a company offering document and litigation management services may cost approximately $12,000. Parties should be encouraged to agree upon a company providing these services to achieve these cost savings. Once scanned, the documents may be imported into litigation management software applications.
I believe that many lawyers are increasingly taking advantage of these technologies. They should be encouraged to use them more where cost or time savings can be achieved. The failure to handle documents in a cost-efficient way should be taken into account when the costs of the proceeding are dealt with.
Technological Solutions in the Courts
The second aspect of technology in the civil justice system is technology that is used by the presiding judge or master. For example, under rule 1.08(1) all or part of certain hearings may be heard or conducted by telephone or videoconference, if these facilities are available at the court or provided by a party. The court may direct the proceeding to be heard by telephone or videoconference where parties make such a request on consent or where a party brings a motion for such an order. 102 There is, however, no express authority for the court to order that a matter be heard by telephone or videoconference on the court's initiative. This ought to be corrected, and this authority exercised particularly for short procedural matters or where significant travel by counsel or the parties may be required.
Technology may also be used for the presentation of evidence. In some document intensive cases, the parties and the presiding judicial official have made arrangements to use technology during a motion, trial or other hearing. For example, the judge may be provided with a CD containing all relevant documents to be referred to at the hearing. In some cases, the parties have arranged for the judge to be trained on litigation management software so he or she can retrieve and make notes on the files in the CD.
British Columbia Model Practice Direction
In July 2006, Chief Justice Donald Brenner of the Supreme Court of British Columbia issued a practice direction on electronic documents and evidence in that province. 103 It sets out a framework for both the electronic exchange of documents between the parties and the presentation of electronic documents to the court at trial. It applies where parties agree or where the court has made an order. Parties are encouraged to adopt the Practice Direction where a substantial part of the discoverable documents is in an electronic form, where there are more than 1,000 potentially discoverable documents or where there are more than three parties to the proceeding. The Practice Direction includes checklists and a glossary of terms to assist with effective implementation. The Judges Technology Advisory Committee of the Canadian Judicial Council is monitoring the British Columbia Practice Direction and is considering it as a model for adoption by other jurisdictions throughout Canada.
Technological Solutions in Courts Administration
The Court Services Division (CSD) of the Ministry of the Attorney General is responsible for the technology used by courts administration. Since 2001, CSD has developed a plan for several technological advances, following the demise of the Integrated Justice Project that was to deliver very ambitious technological improvements for all justice ministries. The plan focuses on the gradual introduction of technology into the justice system, as opposed to the quick and massive change contemplated by the Integrated Justice Project. It seeks to phase in technological improvements over a multi-year period to directly support identified business priorities.
Since 2001, CSD has introduced a number of significant technological advances in Ontario's courts. Those that have an impact on civil cases include:
- A provincial case tracking system (FRANK): FRANK provides a single, centrally managed case tracking system for use by court staff in civil, family, small claims and Divisional Court cases as well as Superior Court criminal cases. It automatically monitors regulated time periods for individual cases as prescribed by the rules; provides an automated index of cases; generates many required forms, notices and court lists; and also provides a calendaring and scheduling tool for trial schedulers.
- Video conferencing: Video conferencing equipment and hard wiring has been installed in 51 court locations.
- Electronic Courtroom in Toronto region: A model electronic courtroom was created in the Toronto Superior Court of Justice to service a high-volume commercial court and support large volumes of evidence, electronic evidence presentation and remote witness testimony, particularly in multi-jurisdictional hearings.
- Document cameras: Document cameras capture paper and other physical evidence and project the image in the courtroom. They are the modern equivalent of an “overhead” projector, and they are available at 62 court locations.
- Mobile IT cart: A portable cart delivers a laptop computer, video projection and playback, audio amplification, a document camera and laser printer. The carts are available at 57 court locations.
- Internet access: Plans are in place to expand Internet access over the next year with the move to a new government telecommunications vendor of record.
- Audio amplification for hearing impaired: Sound systems are available in 32 court locations to amplify sound in a courtroom for those with hearing impairments.
A key element of CSD's future plan is to add document management functionality to FRANK in 2008-09, which will then permit the re-introduction of electronic filing of documents in the civil justice system. Once in place, the capacity to file documents electronically will be a major advance. I hope that this project can be accelerated.
The ministry has also established a Court Reporting Review, guided by an External Advisory Committee, to assess options and technology to improve the taking of the record and transcript production for Ontario's courts. In the fall of 2007, recommendations are to be submitted to the Deputy Attorney General on an improved model to modernize court reporting and transcript production services. Given the pervasive concerns about delay in transcript production in both criminal and civil matters, I endorse this initiative. Transcript preparation in civil matters has been compromised because of the priority given to the preparation of criminal transcripts. There is, in my view, a clear need to determine whether there are better ways to produce a trial transcript – criminal or civil.
Collective Action Essential
Justice stakeholders (the bench, the bar and the ministry) have explored technological initiatives, mainly on a case-by-case basis. These initiatives should be commended, encouraged and expanded. That said, further progress in the area of technology will also require collective action from the bench, the bar and the ministry. I think it is important that judges not only be part of, but also lead, these collective efforts. In what I view to be an interim period in which the use of technology is advanced on a case-by-case basis, the bench and courts administration should do everything within reason to accommodate technology-related requests from the bar.
I believe it is beyond the scope of this Review to propose broad system-wide changes to mandate the use of technology in civil litigation. Moreover, based on the expensive lessons of the Integrated Justice Project, I believe it would be unwise for me to propose broad systemic technological reforms. But that does not mean that the many clearly identified technology-related issues should be put on the shelf or otherwise unreasonably deferred.
Accordingly, I recommend that a committee be struck to determine what incremental technological improvements should be introduced at three pilot court locations – a small, medium and large Ontario court. This proposal recognizes the fact that different court locations may have different technological needs. I suggest that the committee be comprised of nine members, with one member representing each of the bench, bar and courts administration from each of the three sites. The committee should deliver recommendations jointly to the Attorney General, the Chief Justice of Ontario and – since many technological improvements will likely have an impact on courts administration and the functions of the trial judiciary – the Chief Justice of the Superior Court of Justice.
Recommendations should be detailed, taking into consideration policy, legal, cost and operational impacts. They should also include processes to evaluate any reforms implemented. A non-exhaustive list of issues to be considered includes:
- Whether a technological improvement will enhance or impede access to justice;
- The implications for court security and a litigant's privacy interests should broad and unrestricted access to court files, dockets and schedules become available through the Internet;
- The impact of any technological improvement on current business practices of the courts;
- Whether there is a broad appetite for a given technological solution. If not, the solution may not be used and would represent a waste of resources. Local versus provincial implementation should be considered as an option;
- The cost, benefits and resources available to fund any technological reform; and
- The tools available to evaluate the success of the reform.
- Parties and their counsel should be encouraged to explore methods of using technology to share information electronically to achieve time and cost savings. The judiciary and courts administration should make every reasonable effort to accommodate requests for the use of technology in individual cases, where possible.
- Rules 1.08 and 37 should be amended to permit a party to propose, or the court to order on its own initiative, that any matter referred to in rule 1.08 be heard by telephone or video conference.
- A committee of nine – comprised of a member of the bench, bar and courts administration from a small, medium and large court location in Ontario – be struck to make recommendations, jointly to the Attorney General, the Chief Justice of the Superior Court of Justice and the Chief Justice of Ontario, on technological improvements that may be made at each of the three court locations. Recommendations should be detailed, taking into consideration policy, legal, cost and operational impacts. They should also include a process to evaluate any improvements implemented.
- Additional training should be provided to judges on all aspects of the use of technology in and out of the courtroom. This is a matter that is being addressed by the Judges' Technology Advisory Committee of the Canadian Judicial Council. The National Judicial Institute and the Ministry of the Attorney General should participate, where possible, in assisting with such training.