Technology at Examination for Discovery

I have operated my practice as a paperless one since I opened shop in November 2011. I was not a techie (nor am I). I did not have a background in science or computers other than what I needed to get through university. I much preferred reading things on paper than a screen (there are a few physiological and psychological reasons why many of us do). I printed out all my reference material when I could do so on someone else’s dime.

Organizing digital documents and prepping them for disclosure is straightforward, with commonly-accepted practices. The ISO-standardized portable document format (aka “PDF”) has become the de-facto standard. It has come to replace many of the analog equivalents of the old three-ring binder, but with more powerful tools for searching, reproduction, and ease of reference. Today, many lawyers are comfortable sharing documents as PDFs in the place of printing, binding, and couriering documents around town or across the province.

Despite its lack of security, many counsel email documents. Indeed, despite the security measures put in place by their law firms, many clients usurp those measures by using unsecure email services. Email has become the standard practice except where large volumes are involved, in which case flash drives and DVDs are sent around. I will save the security of email and couriering storage media, which are cultural ones in many respects, for another day.

What we do not have in BC (and I presume the rest of Canada) is an accepted practice for using digital documents in oral discoveries. Many stakeholders are discussing digital evidence in hearings, but I am unaware of similar discussions taking place for discovery practices. It seems, understandably, that those things are left to informal agreements between counsel.

Discoveries are far more common exercises and often more influential to the ultimate outcome of a case than a trial, but it remains that there is no accepted practice of using digital documents at discovery. I have been inconsistent myself – while I always bring my laptop and iPad, I also have, at times, printed and bound documents, especially when I want to mark exhibits put to the opposing party (of course, there is no current means of marking PDFs as exhibits although the technology exists). Of course, using digital documents in the absence of commonly-accepted practices.

The issue recently came to a head in a discovery in a comparatively document-intense wrongful dismissal matter. My client was being examined. I was taking notes on my laptop and, when opposing counsel would ask that a document be put to the witness, I would pull it up and slide my computer to the witness, much the same as I would do with a binder of documents. In one instance, opposing counsel asked to go off the record and began complaining (almost a diatribe, in fact) about how the use of PDFs was impeding his discovery and taking too much time. It became evident that this was highly frustrating to this lawyer, as the complaints evolved into a rather personal criticism of me in my clients’ presence.

Specifically, the issues raised were:

1. It was a waste of discovery time to pull up the documents – I was “trying to be paperless” with no corresponding benefit.

2. He could not see whether there were any annotations on the documents (I had previously advised him that I would be using PDFs and collapsing my annotations so the witness could not see them)

3. I was possibly feeding the witness evidence by pointing to things on the screen (I have a touch screen laptop and was flipping to the page opposing counsel to which counsel wanted to refer to save us all time).

It went on, but I will digress. It will suffice to say that the tone and nature of the comments were such that I doubt this experienced lawyer would have wanted them on the record. Nonetheless, this caused me to be introspective about an issue that I felt had no good solution at present.
Despite the expanding reliance on digital evidence in legal proceedings generally, reporting agencies are not seeing the same increasing use of digital documents at discovery. This might be for a few reasons. Reporting agencies typically follow the courts, given their role in providing services essential to the effective and just adjudication of cases. There is no accepted means of digitally marking exhibits. There is also no existing practice for displaying documents or allowing witnesses to read documents at discovery through digital media – whatever is there might not be suitable for every witness.

In that particular respect and also generally, we have to tackle cultural barriers to using digital evidence. Some people would say this is generational, but I think that the issue is really about reluctance to learn something new. Certainly, many of the leaders in legal technology were not raised in a digital age, but realized that adoption of new technology and adaptation are vital in a service-oriented industry that must conform to their clients’ practices (the ever-knowledgeable David Bilinsky was called to the bar before the PC came about, but that hasn’t slowed him, nor many others, down). Beyond that, the law is likely the fastest evolving profession in terms of substantive knowledge. Medicine, engineering, accounting, business, etc. do not see the same sea-changes occur overnight or the constant evolution of subject matter that the common law does. If we can continuously take on new substantive knowledge, which is not always easy, then why can’t we take on new technical knowledge?

There are many different solutions to these obstacles. I am sure an affective solution requires greater consultation, dialogue, and experimentation, but here is what I think we need to be able to make better use of digital documents at discovery:

1. User-friendly media to display and read digital documents: an iPad or other tablet is likely the most user-friendly media. Standard tablets are a touch too small for this. The 12.9” iPad Pro is conveniently about a half-inch larger in each dimension than a sheet of familiar A4 paper with the Apple “Pencil” allowing users to markup documents. (being half-Scottish, I think I will wait until my nearly-new iPad clunks out before making the upgrade, but we shall see).

2. A means of marking documents as exhibits by the reporter: the Electronic Transactions Act S.B.C. 2001, c. 10, allows this, but there are no reporters in BC doing so. Adobe Acrobat will create stamps equivalent to the ink-stamps we all know. While I am not sure if building a form into a stamp to make informational input faster currently exists as an option, it is certainly within the bounds of technical feasibility. For convenience, one could also hyperlink the reference to the exhibit in the transcript to the exhibit itself.

I have experimented both with my iPad Air and with my laptop as display media for my client, with one device being used for note-taking while the other is exclusively used by the client. There are pros and cons to both. The iPad has a smaller screen, but opposing counsel can (sort of) see where the client is at in the document and that there are not any annotations by counsel. Of course, the inverse is true when a laptop is used. One pro of a laptop is that I can let the client use the screen to read and I can use a Bluetooth mouse to pull up documents and jump to the right page without being on top of the client or passing the device around. This avoids the need for training or familiarization with the display app (e.g. GoodReader or PDF Expert) or how bookmarks work like tabs in a binder.

Of course, these technical solutions are only responsive to technical problems. The cultural obstacles remain.

I welcome any feedback from readers regarding their experience and ideas with digital evidence at discovery: mike@whitecaplegal.ca

• Michael McCubbin

*I am indebted to Christy Pratt, owner of Reportex Agencies in Vancouver, B.C. for her feedback and insight to supplement my own experience (there is no way that even the most seasoned trial lawyer in BC, which I am not, has as much oral discovery experience as Christy). Reportex is, in my view, one of the most forward thinking agencies (if not, the most) and her willingness to offer her insight is really part and parcel of the progressive culture her firm maintains.