Published on 20 September 2016 at 5:11pm
Courtroom technology has, since the turn of the century, become an increasingly ‘hot button’ issue for the legal profession. Since her inauguration last year, New South Wales Attorney-General Gabrielle Upton has been ardently advocating an improvement in the use of technology by courts, specifically through an expansion in virtual appearances and online legal services.[1] Similarly last year, Victorian Chief Justice, the Hon. Marilyn Warren spoke of ‘embracing’ courtroom technology as ‘the way forward’ for the legal profession.[2] Courtroom technology in recent years has dramatically developed to include hearing loops, real time transcripts, digital court reporting and multimedia evidence playback. [3] However, the greatest obstacles for regulation of technology in the legal profession lie in the topic which will form the basis of this inquiry, namely the storage and presentation of electronic evidence.
The rapidly changing nature of litigation since the 1970s has prompted legal professionals to retrieve, catalogue and sort ever greater amounts of evidence which, in turn, has significantly increased the amount of available law.[4] As mentioned in Harris Scarfe v Ernst & Young[5], an electronic court[6] greatly assists the legal profession in facing this challenge by allowing for largely ‘paperless’ trials.[7] For example, in Seven Network Limited v News Limited[8], all relevant documents were compiled onto an electronic database consisting of over 75,000 documents which appeared on computer screens as they were referred to by counsel.[9] In addition to electronic databases, Professor Susskind predicts that in the not so distant future ‘virtual appearances will become the norm’.[10] The accuracy of this prediction can be seen in the fact that in 2013, nearly 60 per cent of appearances in NSW courtrooms were via videoconferencing and now in 2016 even lawyers are appearing via video link.[11] There are inevitable benefits to these courtroom technologies including greater efficiency, cost effectiveness, improved access to justice and more openness than traditional court structures. However, these potential advantages must be balanced against the potentially adverse regulatory issues that arise.
Security
The security of evidence stored in electronic databases is a key regulatory issue for the legal profession. The use of courtroom technology is encouraged by the Practice Notes of state and federal Courts.[12] According to Harris Scarfe v Ernst & Young[13], ‘the electronic court enables the parties, the trial judge and court staff to have secure access to all of the material in an efficient manner both in and out of the courtroom’.[14]However, neither the case law nor the practice notes discuss in any detail the security of this access. In Idaport Pty Ltd v National Australia Bank[15], Einstein J described an electronic court as so secure that it was effectively ‘its own island’.[16] In other cases dealing with electronic courts, for example in Seven Network Limited v News Limited[17], security issues were not even raised. Electronic databases used in courts may give rise to grave security concerns as network connection in the absence of a known ‘level of security implementation creates a risk to the [information’s] integrity and confidentiality’.[18] There are currently no regulations in Australia that allow for the establishment of policies that could assure the courts that such technology is protected by strong information security principles.[19] Existing court practice notes do not have an information protection outlook.[20] The courts have not examined the advice about security from software suppliers nor have they independently considered the security of electronic databases.[21] Due to the lack of empirical research conducted in this area, there is a need to divert some attention away from the court technologies themselves and focus on regulating their use to avoid undermining the integrity of the court process.
2. Confidentiality Complementing the difficulties in regulating the security of databases is the obstacle in regulating the confidentiality of documents in such databases. In Seven Network[22], the court considered the issue of access to documents transmitted electronically at trial. The Court contrasted the position of an electronic trial with that of a traditional ‘hard copy’ trial noting that traditionally, public access is decided on a document by document basis however now ‘exhibits may be transmitted through the use of technology at trial with extraordinary ease’ thereby increasing the level of care to be taken by legal professionals to uphold the interests of the parties.[23] The Court conceded that due to the great volume of documents, there was a grave risk that some information would be allowed into evidence ‘by default or by error’ or that lawyers may forget to claim confidentiality in relation to some documents.[24] In this case, the ABC was granted ‘access to exhibits only when they [were] referred to in the course of evidence or oral argument or in written submissions provided to the Court’.[25] Barristers and solicitors owe a duty of confidentiality to their clients and other lawyers must not take advantage of inadvertent disclosure. [26] However, there is currently no overarching regulatory framework directing legal professionals as to how to respond to cases analogous to Seven Network where, due to the sheer volume of documents, inadvertent disclosure is expected.
3. Presentation of electronic evidence a. Images Regulating the very use of electronic documents in presenting evidence has also been an issue of some concern for the legal profession not only in Australia but also globally. Although digital evidence presentation can be cost and time effective by reducing the amount of paper involved in trials, it has been criticised for its potential to distort evidence.[27] Although, as Justice Kirby points out, ‘a flashy power-point summary of arguments…will not hide gaps in logic’ such presentations may lead to allegations of misconduct against legal professionals who abuse technology to mislead the court with ‘visual trickery’.[28] For example, in America, numerous cases of prosecutorial misconduct have arisen from improper use of electronic images.[29] Such images often contain the bloody body of victims with captions such as ‘murder’ and ‘helpless’ contrasted with the words ‘guilty’ superimposed over the defendant’s photo.[30] In Christopher Spence v State of Delaware, the Court noted that it did not seek to discourage the use of technology but rather to regulate it such that it could ‘not be used to make an argument visually that could not be made orally.’[31] Moreover, the use of expert pathology visualizations have been criticized for their propensity to be perceived as scientific fact rather than opinion evidence.[32] Scholars have suggested that legal professionals must acquire new skills to collect and describe digital evidence to the court and must state for the court the need for caution due to the uncertainty of this evidence.[33] Barristers must refrain from acting dishonestly or prejudicially ‘to the administration of justice’ or in a manner that would diminish public confidence or ‘bring the legal profession into disrepute’.[34] More specifically, ‘a prosecutor must not, by language or other conduct, seek to inflame or bias the court against the accused’.[35]These rules, by implication, act to regulate the manner in which barristers and prosecutors may present evidence by restricting such presentation to conduct that will not be prejudicial to the administration of justice. However, legal professionals may require more detailed and comprehensive guidelines as to what the ethical and honest use of electronic evidence entails in order to avoid prejudicing the administration of justice.
b. Videoconferencing Very similar regulatory challenges arise in the issue of legal professionals’ potential misuse of videoconference testimonies. Videoconferencing is generally used in cases involving children, vulnerable and remote witnesses.[36] Recently lawyers have also been allowed to represent their clients via video link.[37] This technology is inevitably beneficial for the legal profession as it allows for improved access to justice for clients and may be cost and time effective. However, ‘the greatest concern with this technology is that it may result in parties calling more and more witnesses, with less and less relevant information’.[38] As the overriding purpose of the court is to ensure the just, quick and cheap resolution of issues, this potential to dramatically delay the court should be regulated to ensure it does not undermine the cost and time efficiency of videoconferencing.[39] Professional conduct rules regulate this challenge of growing witness lists by requiring that barristers must ‘limit evidence, including cross-examination, to that which is reasonably necessary to advance and protect the client’s interests…and occupy as short a time in court as is reasonably necessary to advance and protect the client’s interests’.[40] Although the overriding duty to the court regulates the conduct of legal professionals, this does not necessarily restrict legal professionals from calling a large number of witnesses and producing a large number of documents as this could be necessary to advance the client’s interest. Thus, the current regulatory framework has not struck a balance between the need to pursue the client’s interests against the need to ensure quick resolution of issues.
Recommendations
The regulation of the storage and use of electronic evidence and videoconferencing may be improved by amendments to professional conduct rules and court practice notes as well as the development of additional guidelines to further educate legal professionals.
Security
In relation to security of documents, it would be recommended that the courts’ Practice Notes be amended to reflect international standards in information security.[41] The International Standard ‘ISO/IEC 27001:2013’ is a global information security standard containing ten clauses and a detailed annex addressing criteria for the security assessment of IT systems.[42] The introduction to the Standard states that this ‘information security management system preserves the confidentiality, integrity and availability of information by applying a risk management process and gives confidence to interested parties that risks are adequately managed’.[43] Upon completion of a formal compliance audit, the courts’ electronic databases could be certified to assure legal professionals and the broader public that international recommendations have been implemented.[44] The insertion of a clause in the Practice Notes of the courts reflecting that courtroom technology has satisfied international standards would enhance consumer protection principles and ensure public confidence in the security of legal documents placed in the courts’ electronic databases.
2. Confidentiality It is in the interests of justice, expediency and consistency that there be a clause inserted in the courts’ Practice Notes to direct the court on how to deal with confidential information which is accidentally transmitted through electronic databases. This clause could be adopted from the principle in Seven Network that where there is a great volume of documents, ‘access to exhibits [will] only [be granted] when they are referred to in the course of evidence or oral argument or in written submissions provided to the Court’.[45] For example, under the current sub-heading ‘Electronic exchange of discovery lists and documents’ in Practice Note 7 of the Supreme Court of NSW, a clause could be inserted stating that where the parties have more than 500 documents, public and media access to such documents will be restricted to only those documents that are referred to in the course of evidence or oral argument or in written submissions provided to the court. Alternatively, the courts could adopt a more broad interpretation similar to that of Model Rule 1.6(c) of the American Bar Association’s Model Rules of Professional Conduct (‘ABA Rules’) which states that ‘a lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client’. This would emphasize the duties of confidentiality owed by legal professionals in all situations, including in the context of documents stored in electronic databases.
3. Presentation of electronic evidence In relation to the ethical use of electronic documents and videoconference testimonies, further education for legal professionals in the form of comprehensive and detailed guidelines would be recommended. Sydney based barrister Phil Greenwood supports the contention that legal professionals require further education as he states that ‘We need to educate [barristers] more about clever ways to use this technology to present the case to the judge and to the jury’.[46] In order to ensure equal access to justice for clients and to uphold the integrity of the court process, it would be beneficial for all legal professionals to be provided with guidelines regarding the use of technology in evidence presentation. To prevent the use of technology ‘as a weapon, rather than a tool’, guidelines should be established to regulate the ‘delivery and management of exhibits and the overall maintenance of discipline in the use of systems’ as well as ensuring adequate training and technical assistance is available for lawyers or self-represented parties who may have poor technical skills.[47] The first step would be to amend professional conduct rules to include a clause similar to Comment 8 of Model Rule 1.1 of the ABA Rules which requires legal professionals ‘to keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject’. However, the inclusion of this clause would potentially be superficial without the implementation of additional guidelines.
The Australian legal profession would greatly benefit from the development of a cohesive set of guidelines much like those created by the Federal Judicial Center in the United States.[48] This guide acknowledges the potential inequality in access to justice where legal professionals who are technologically skilled and comprehend how and when to raise technology issues are strategically placed at an advantage to those who are unfamiliar with technology.[49] The active management by judges of technological matters, rather than awaiting the parties’ identification and argument of the matters, may assist in ensuring equality among legal professionals.[50] The guide includes detailed explanation of how judges should manage technology in the courtroom by, for example, explaining precisely when videoconferencing should be used, i.e. not merely when it is inconvenient for the witness to attend the trial but where there is also ‘showings of good cause and compelling circumstances’.[51] It also establishes the general guidelines for lawyers and judges using videoconferencing, e.g. testing the connection, control of the camera, one speaker at a time, slower pace, use of exhibits etc.[52] The extremely detailed explanation of this process inevitably provides greater clarity and consistency in comparison to an ad hoc approach to videoconferencing. This regulatory framework would be of specific benefit in Australia as it could assist in overcoming ‘the additional hurdle’ of encouraging reluctant judges to use technology in the courtroom.[53] In conclusion, the regulatory challenges posed by the ethics, security and confidentiality of courtroom technology may be surmounted by implementing amendments to existing rules and establishing additional guidelines. This framework will hopefully provide comprehensive guidance for legal professionals in order to prevent placing the onus on individual lawyers to examine and interpret the security, confidentiality and suitability of technology.
[1] Katie Walsh, ‘NSW Courts should embrace technology: Attorney-General Gabrielle Upton’, Financial Review (online), 23 April 2015 <http://www.afr.com/business/legal/nsw-courts-should-embrace-technology-attorneygeneral-gabrielle-upton-20150422-1mr6kn#ixzz44ilGPzw6>. [2] The Hon. Marilyn Warren, ‘Embracing Technology: The Way Forward for the Courts’ (Speech delivered at the 23rd Biennial Conference of District and County Judges, Langham Hotel, Melbourne, 19 April 2015), 1. [3] Robert McDougall, ‘The Uses and Abuses of Technology in the Courtroom’ (Speech delivered at the Society of Construction Law, Australia Conference, Intercontinental Sydney Hotel, Sydney, 2 August 2013), 4. [4] Ibid 2-3. [5] [2005] SASC 407 (28 October 2005). [6] Also known as virtual court or technology court or ecourt. [7] Roslyn MacDonald, Mark Burdon and Sheryl Jackson, ‘Ensuring the integrity of the E-court process’ (Paper presented at Justice Environments Conference, University of Melbourne Law School, 20-22 April 2006), 2. [8] (No 9) [2005] FCA 1394 (5 October 2005). [9] Ibid [4]-[8]. [10] Richard Susskind, Tomorrow’s Lawyers: An Introduction to Your Future (Oxford University Press, 2013), p xii quoted in Warren, above n 2, 5. [11] Stephanie Quine, ‘New technologies link courts to future’, Lawyers Weekly (online), 11 July 2013 <http://www.lawyersweekly.com.au/news/14404-new-technologies-link-courts-to-future>; ‘Trial allowing lawyers to appear via video link could boost regional court ‘efficiencies’ says SA Law Society’, ABC News (online), 17 April 2015 <http://www.abc.net.au/news/2015-04-17/hope-for-video-link-trial-to-be-rolled-out-to/6400542 >. [12] Supreme Court of New South Wales, Practice Note No 7 of 2008 – Supreme Court: Use of Technology, 9 July 2008 and Federal Court of Australia, Practice Note No 6 of 2011 – Practice Note CM 6: Electronic Technology in Litigation, 1 August 2011. [13] [2005] SASC 407 (28 October 2005). [14] MacDonald, Burdon and Jackson, above n 7, 3. [15] (No 6) [2000] NSWSC 338 (14 April 2000). [16] Ibid [59]. [17] (No 9) [2005] FCA 1394 (5 October 2005). [18] MacDonald, Burdon and Jackson, above n 7, 4. [19] Ibid 7. [20] See for e.g. Supreme Court of New South Wales, Practice Note No 7 of 2008 – Supreme Court: Use of Technology, 9 July 2008 and Federal Court of Australia, Practice Note No 6 of 2011 – Practice Note CM 6: Electronic Technology in Litigation, 1 August 2011. [21] MacDonald, Burdon and Jackson, above n 7, 4. [22] Limited v News Limited (No 9) [2005] FCA 1394 (5 October 2005). [23] Sheryl Jackson, ‘New Challenges for Litigation in the Electronic Age’ (2007) 12(1) Deakin Law Review 81, 119. [24] Ibid 119-120. [25] Ibid 120. [26] Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) (‘BR’) rr 114-116; Legal Profession (Solicitor) Rules 2007 (NSW) (‘SR’) rr 9, 31. [27] Bennet Gershman, ‘Prosecutorial Misconduct Using Courtroom Technology’, Huffington Post (online), 24 November 2015 <http://www.huffingtonpost.com/bennett-l-gershman/prosecutorial-misconduct-_3_b_8633424.html>. [28] Ibid; The Hon Justice Michael Kirby AC CMG, ‘The future of appellate advocacy’ (2006) 27 Australian Bar Review 141, 151 quoted in McDougall, above n 3, 4. [29] Gershman, above n 27. [30] Ibid. [31] Christopher Spence v State of Delaware (Del Sup Ct, No 298, 13 November 2015) slip op 14. [32] Damian Schofield, ‘Animating Evidence: Computer Game Technology in the Courtroom’ (2009) 1 Journal of Information Law & Technology 1, 9-10. [33] Ibid 2, 10. [34] Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) rr 4, 8, 24. [35] Ibid r 85. [36] Anne Wallace, ‘Virtual Justice in the Bush: The Use of Court Technology in Remote and Regional Australia’ (2008) 19 Journal of Law, Information and Science 1, 1-2. [37] ‘Trial allowing lawyers to appear via video link could boost regional court ‘efficiencies’ says SA Law Society’, above n 11. [38] McDougall, above n 3, 5. [39] Civil Procedure Act 2005 (NSW) (‘CPA’) s 56; Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) r 23. [40] Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) r 58. [41] MacDonald, Burdon and Jackson, above n 7, 11. [42] International Organization for Standardization, ISO/IEC 27001 – Information security management (25 September 2013) < http://www.iso.org/iso/iso27001>; International Organization for Standardization, ISO/IEC 27001:2013(en) Information Technology – Security techniques – Information security management systems – Requirements (25 September 2015) < https://www.iso.org/obp/ui/#iso:std:iso-iec:27001:ed-2:v1:en>. [43] International Organization for Standardization, ISO/IEC 27001:2013(en) Information Technology – Security techniques – Information security management systems – Requirements (25 September 2015) <https://www.iso.org/obp/ui/#iso:std:iso-iec:27001:ed-2:v1:en>. [44] Ibid. [45] Jackson, above n 23, 120. [46] Quine, above n 11. [47] Anne Wallace, ‘Technology and the Judiciary: The use of technology in the criminal trial process’ (Paper presented at the 4th National Outlook Symposium or Crime in Australia, New Crimes or New Responses, Canberra, 21-22 June 2001) 3, 12. [48] Federal Judicial Center (United States of America), Effective Use of Courtroom Technology: A judge’s guide to pretrial and trial (2002). [49] Ibid xiv. [50] Ibid. [51] Ibid 168. [52] Ibid 169-174. [53] Warren, above n 2, 5. REFERENCE LIST A Articles/Books/Reports Gershman, Bennet, ‘Prosecutorial Misconduct Using Courtroom Technology’, Huffington Post (online), 24 November 2015 <http://www.huffingtonpost.com/bennett-l-gershman/prosecutorial-misconduct-_3_b_8633424.html> Jackson, Sheryl, ‘New Challenges for Litigation in the Electronic Age’ (2007) 12(1) Deakin Law Review 81 Quine, Stephanie, ‘New technologies link courts to future’, Lawyers Weekly (online), 11 July 2013 <http://www.lawyersweekly.com.au/news/14404-new-technologies-link-courts-to-future> Schofield, Damian, ‘Animating Evidence: Computer Game Technology in the Courtroom’ (2009) 1 Journal of Information Law & Technology 1 ‘Trial allowing lawyers to appear via video link could boost regional court ‘efficiencies’ says SA Law Society’, ABC News (online), 17 April 2015 <http://www.abc.net.au/news/2015-04-17/hope-for-video-link-trial-to-be-rolled-out-to/6400542> Wallace, Anne, ‘Virtual Justice in the Bush: The Use of Court Technology in Remote and Regional Australia’ (2008) 19 Journal of Law, Information and Science 1 Walsh, Katie, ‘NSW Courts should embrace technology: Attorney-General Gabrielle Upton’, Financial Review (online), 23 April 2015 <http://www.afr.com/business/legal/nsw-courts-should-embrace-technology-attorneygeneral-gabrielle-upton-20150422-1mr6kn#ixzz44ilGPzw6>
B Cases Christopher Spence v State of Delaware (Del Sup Ct, No 298, 13 November 2015) Harris Scarfe v Ernst & Young [2005] SASC 407(28 October 2005) Idaport Pty Ltd v National Australia Bank (No 6) [2000] NSWSC 338 (14 April 2000) Seven Network Ltd v News Ltd (No 9) [2005] FCA 1394(5 October 2005)
C Legislation Civil Procedure Act 2005 (NSW) Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) Legal Profession (Solicitor) Rules 2007 (NSW)
D Other
American Bar Association, Model Rules of Professional Conduct (2015)
Federal Court of Australia, Practice Note CM 6: Electronic Technology in Litigation, 1 August 2011
Federal Judicial Center (United States of America), Effective Use of Courtroom Technology: A judge’s guide to pretrial and trial (2002)
International Organization for Standardization, ISO/IEC 27001:2013(en) Information Technology – Security techniques – Information security management systems – Requirements (25 September 2013) < https://www.iso.org/obp/ui/#iso:std:iso-iec:27001:ed-2:v1:en>
International Organization for Standardization, ISO/IEC 27001 – Information security management (25 September 2013) < http://www.iso.org/iso/iso27001>
MacDonald, Roslyn, Mark Burdon and Sheryl Jackson, ‘Ensuring the integrity of the E-court process’ (Paper presented at Justice Environments Conference, University of Melbourne Law School, 20-22 April 2006)
McDougall, Robert, ‘The Uses and Abuses of Technology in the Courtroom’ (Speech delivered at the Society of Construction Law, Australia Conference, Intercontinental Sydney Hotel, Sydney, 2 August 2013)
Supreme Court of New South Wales, Practice Note SC Gen 7: Supreme Court – Use of Technology, 9 July 2008
Wallace, Anne ‘Technology and the Judiciary: The use of technology in the criminal trial process’ (Paper presented at the 4th National Outlook Symposium of Crime in Australia, New Crimes or New Responses, Canberra, 21-22 June 2001)
Warren, Marilyn, ‘Embracing Technology: The Way Forward for the Courts’ (Speech delivered at the 23rd Biennial Conference of District and County Judges, Langham Hotel, Melbourne, 19 April 2015)
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