Technology in civil litigation

BC Supreme Court calls for comment on draft practice direction

The Supreme Court of BC is inviting comments from the profession and the public on a draft practice direction called “Guidelines for the Use of Technology in any Civil Litigation Matter,” which sets out a protocol for the preparation, exchange and presentation of electronic evidence. The timetable for consultations and the most recent draft of the direction — which was released April 11 — are available on the Courts of British Columbia website: www.courts.gov.bc.ca/sc/ElectronicEvidenceProject/ElectronicEvidenceProject.asp.

Under the current draft of the direction, the Court would encourage parties to civil proceedings to consider adopting the direction when one or more of the following apply:

  • a substantial portion of potentially discoverable documents consist of electronic material,
  • there are over 1,000 potentially discoverable documents in the proceeding,
  • there are more than three parties.

The draft direction would place on parties and their counsel primary responsibility for agreeing on the matters that become subject to the practice direction. Counsel would consider the ways in which the use of technology might lead to the more efficient conduct of litigation, such as through the delivery of court documents to another party (outside the efiling pilot project), communicating with another party and preparing an electronic common book of documents for trial.

A party of record may also apply for a court order that the proceeding be conducted in accordance with some or all of the practice direction.

When the practice direction applies, the court may, on application by a party, make specific orders respecting use of technology in a proceeding, including requiring the parties to meet to discuss the best use of technology, resolving disputes and giving directions and determining if there should be an electronic trial. An electronic trial could include such things as delivery of documents in electronic form to other parties, delivery of documents in electronic form for the trial record, electronic discovery, an electronic common book of documents and restrictions on use of hard copies at trial.

The BC Supreme Court has undertaken consultations within the profession on the direction. The direction is expected to be issued in final form on July 1, 2006, following further consultations and revisions. A feedback document is available on the webpage noted above, for the convenience of anyone wishing to comment. Comments can also be provided to Potter Farrelly & Associates at bcpd@potterfarrelly.com.