1 Digital Revolution, Legal Evolution
- The civil justice system, as a whole, is aimed at
solving legal disputes within society. Whenever society changes, the civil justice system must keep up
to date and at one should at least consider whether the system shall transform or adjust. A civil
justice system which was fit and adequate in an agricultural era is not necessarily up to date after the
emergence of bourgeois craftsmanship or the outbreak of an industrial revolution. Arguably, the wave of
civil justice reforms in Europe during the last decades of the 1800s and the first decades of the
1900s[1] was at
least partly a consequence of the Industrial Revolution. The best example seems to be found in England,
the birthplace of industrialism. The old English system of the writs, established for a time of
agriculture and feudalism, could during the 1800s no longer provide effective and accurate
justice.[2] In a
time of industrialization and emerging societal and legal complexity, a procedural system presuming the
categorization of any dispute into one single formal writ was not easily applicable. After decades of
criticism and calls for reforms from Jeremy Bentham and many others, the civil justice system was
overhauled by the reform of 1873 where new civil procedure rules were enacted for the High Court, the
Court of Appeal, and the Supreme Court.[3] Arguably, the communist revolutions of Eastern
Europe in the second half of the 1900s also left the civil justice systems with a new political and
societal framework to which it had to adapt. Resulting in a more bureaucratic and hierarchical court
system provided for the inclusion of overarching ideological ambitions, Eastern Europe at the time gave
inspiration for one of Damaska’s famous two faces of justice.[4]
- The digital revolution is the deepest and most pervasive economic,
societal, and cultural transformation of our times. Deeply intertwined with globalization, both
contemporary post-industrialized societies and other societies throughout the world have been massively
affected by the transformation into a digital era. Although the digital revolution is not at all an
overnight recalcification of society, changes have been rapid at least when considering the massive,
deep, and broad impact digitalization has had on communication and daily life of most human beings all
over the globe. Just as the civil justice system in general and procedural law especially has been
adopted to previous social transformation, further changes should at least be considered after the
recent emergence of the digital revolution. However, massive alterations of a civil justice systems or
an entire legal system are not a necessary or inescapable consequence of broad or deep political,
cultural, or societal changes. Broad and deep alterations of the civil justice system do not just
suddenly happen and at least a period of transition is to be expected.
- Chapter 2 is devoted to measures and actions aimed at taking
account of the digital revolution within procedural systems which were not originally constructed for a
digital era. When taking existing or traditional procedural law and systems as its starting point, this
chapter deals with how procedural systems have been adopted, reformed, or adjusted to fit with a new
technological landscape. Obviously, the digital revolution causes legal evolution. But what sort of
evolution? Legal evolutions may be of many varieties; slow or fast, deep or superficial, theoretical or
practical, by formal legislation or by informal changes of customs. Even though the nature of the
digital revolution, a global and globalizing phenomenon, probably has world-vide common features, its
effects on a civil justice system may vary from one jurisdiction to another. This chapter will try to
advance our understanding of the nature and specificities of these legal changes, in particular the
development of different jurisdictions and the comparison of these developments.
- Since the digital revolution potentially affects the entire civil
justice system, there is a need for narrowing the scope of this chapter in order to dwell in more detail
on selected elements of legal development. Although many elements of civil procedure law could have been
subject to such analysis, evidence law seems to be especially suitable. Evidence law is of high
practical significance in all jurisdictions,[5] the elements of evidence law are more or less
globally distinguishable (meaning that the over-arching systematization of evidence law could be used to
analyze most jurisdictions),[6] and the upcoming of digital evidence is a distinct effect of the digital revolution on
any civil justice system. Furthermore, the digital revolution and evidence law have an important common
feature: both regard information and use of information.
- So, the basic questions for this chapter are: Firstly, has the
digital revolution brought changes in evidence law, such as rules on access to evidence, production of
evidence or taking of evidence? Have changes taken the form of new formal legislation, development of
binding court-practice, or mere informal and non-binding changes of customs or habits? Are the changes
deep (eg, altering of fundamental procedural principles) or superficial (changes within existing
procedural principles)? Have the changes been rapid or slow, frequent or rare?
- Secondly, has evidence law been adapted in time or in a proper
manner to adapt adequately to the digital revolution? Have changes of law been taken after changes in
technology or have procedural legal reforms been taken in order to (further) develop new technology or
to improve the use of technology in civil procedure? Have lack of changes or flexibility of evidence law
caused obstacles to the proper use of digital evidence or digital techniques?
- Thirdly, what sort of information technology is in use in current
evidence law or practice and what has pushed the development?
2 The Ideology of Free Proof and a Technology-Neutral Starting
Point
- Somewhat surprising, perhaps, the best starting
point for analysing adjustments of evidence law to the hyper-modern digital revolution is an old,
classical, and prominent aspect of procedural law: the ideology of free proof. A free proof system is
characterized by absence of legislation or other binding rules concerning the probative value of
evidence, the types of admissible evidence, and where standards of proof do not require a specific type
of evidence. Basically, modern systems of evidence law are free from historic systems of formal or legal
proof where the law for instance prescribed full proof to consist of two witnesses, a confession (if
necessary taken under torture), or a statement confirmed by so and so many free men.[7] Since the fading away of
the medieval systems of legal proof seems to have started in the second half of the 1700s, the free
proof ideology was probably inspired by the world-view of the Enlightenment era, its belief in human
beings’ ability to autonomously and rationally evaluate evidence in order to access truth, and the
general belief in information as basis for choosing between competing or alternative stories. Although
the history of the breakthrough of modern[8] principles of proof in its details is unique for
each country, in most jurisdictions these principles were established either by binding case law or
legislation by the end of the 1800s. For instance, the free proof ideology dates back to Bentham and
case law developments in the common-law countries, while it is a rather complex development varying from
state to state in the Germanic area.[9]
- The ideology of free proof contains at least two principles; free
admission of evidence, and free evaluation of evidence. Modern evidence law, not necessarily in contrast
to older formal or legal proof systems, orients towards the best possible evidential situations. In
order to achieve that, the principle of free admission of evidence shall ensure that, in general,
relevant evidence is admissible and thereby not hidden from the decision-maker.[10] In party-driven
litigation, this implies a right for parties to offer whatever relevant evidence they like. Judges are
obliged to admit relevant evidence unless some specific reason justifies a need for keeping information
secret and thereby establishes a privilege or another kind of non-admissibility rule.[11] The principle of free
evaluation of evidence is a freedom and obligation for the judge to decide on the matter in accordance
with his inner conviction based on the evidence.[12] Paternalistic rules which attached a predefined
probative value to certain types of evidence are replaced by rules trusting the judges with the
competence to assess each case separately after having heard all evidence.
- In theory, jurisdictions based on a free proof ideology, should be
well served whenever the epistemological landscape changes, for instance when new technology provides
new sources of information or when existing sources of information could be gathered or interpreted by
new technology. Essential for the free proof ideology is that evidence law should not in general favour
one medium over another, be it technology-based or paper-based, oral or written. A free proof ideology
encourages the best evidence to be produced and to be presented in its best possible fashion, and the
impact of a piece of evidence should depend on its evidential value no matter whether the evidence is
presented in this or that mode, style, or technology. Hence, what is currently known as the
technology-neutral principle is,[13] at least for evidence law, a trivial derivation
from old, well-established general principles.
- However, the introduction of new technology to evidence law is
not always straightforward. The first reason for this is the free proof ideology itself. While
principles of free admission and evaluation of evidence do not hinder the application of technological
improvements, neither do these principles provide guidelines for when and how to use such technology.
The broad and open character of these principles leaves evidence law underdetermined, which means that
it is for the judge to determine for instance how evidence should be produced in order to get presented
in its best possible version. Such a decision may be challenging, especially when a new type of evidence
arises because of the development of new technology.
- Secondly, while modern evidence law is based on general principles
of free proof, most jurisdictions also consist of a high number of detailed, technical rules which
govern most of the everyday practice of evidential matters. For instance, most jurisdictions have a
catalogue of established types or means of evidence including rules on how a type of evidence shall be
offered, presented, and responded to.[14] Legal technicalities may stop technical
development. Technicalities of evidence may potentially obstruct the development of new types of digital
evidence because such new forms or varieties of evidence may not fit into existing categories.
- Thirdly, the principles of free proof are not and
have never been, the only principles of evidence law. In many jurisdictions, recent reforms established
principles moderating the free admission of evidence. Best known, perhaps, is the establishment of the
principle of proportionality (proportionate justice) in England and Wales after the
Woolf-reform.[15] Such a principle has also had a breakthrough in many other jurisdictions,[16] and it is a
cornerstone of the ELI/UNIDROIT Model Rules.[17] A principle of proportionality implies a
reduced ambition concerning the quantity of evidence being presented and perhaps also the quality of
evidential situations. While previous guidelines linked to a principle of substantive truth and an
ambition of getting the best possible evidential situation in all cases, a goal of proportionate justice
implies that not more time and money should be spent on a case than what is reasonable compared to the
value or importance of the claims. Within a principle of proportionality, truth-seeking and reducing the
risk or substantive error must be balanced against the goal of saving time and money.[18] However, a higher
number of substantive rights or claims may be enforced even though the risk of error inclines because a
higher number of potential litigants may commence proceedings and stand trial when costs are reduced.
Within a principle of proportionality, quite advanced and complicated assessments must be taken not only
to find the appropriate level of time and cost, but also to decide on which evidence shall be left aside
when admitting all evidence would be disproportionate. Modern technology may provide solutions to some
of these assessments. Taking statements from witnesses online could at least save travelling costs and
would make the appearance for witnesses easier to combine with other tasks that day. Hence, evidence
which otherwise would have been disproportionate becomes proportionate when technology is used. In other
cases, however, the use of technology enhances costs and may only be suitable in large cases and if it
leads to certain pay-offs. In this scenario, a judge may have to decide on whether technology shall be
used, or which type of such technology shall be applied.[19]
3 Inclusion of Digitally Stored Information in Established Means of Evidence
System
3.1 Redefining Means of Evidence
- In accordance with the principles of free proof, electronically
stored documents are commonly used in civil and commercial life and are expected to be used as evidence
in modern civil proceedings. The technology neutrality principle means that any technology-based
documents with structured information ‘in the form of words, sounds or images’, should be
deemed functionally equivalent to their paper counterpart in terms of probative (evidentiary)
value.[20] Even though both the principle of free admission of evidence and the technology
neutrality principle obviously imply that relevant evidence is admissible regardless of their form, most
jurisdictions have lists or categories of established means of evidence. Although such lists are not
necessarily exhaustive, many specificities concerning taking of evidence are prescribed for each means
of evidence. Not at all disregarding the practical importance of the abstract principles of free proof,
most everyday decisions on taking of evidence are related to specific and relatively detailed
regulations for mainly predefined types of evidence. Although both a functional perspective taken on
the basis of the principle of technology neutrality and an ideological or epistemological
perspective taken on the basis on the free proof principles suggests that digital evidence
obviously should be allowed regardless of their form, the technical side of (national) evidence
regulations may provide practical and formal hindrances to the inclusion of digital evidence.
- Probably, jurisdictions all over the world have faced a challenge
where basic principles clearly require evidence of a new form to be included while on the other hand, an
important legal tool for taking evidence may have to be altered or adjusted in order to open the door
for such new forms of evidence. Different jurisdictions may have chosen different paths for including
digital evidence, jurisdictions may have been more or less successful in their transformation and the
potential tension between basic principles and detailed regulations may have been more or less alive.
Interesting questions of legal development and adjustments of law to new realities may therefore be
investigated: Have jurisdictions revised their definitions of means of evidence in order to include
digital evidence? Have such revisions been necessary for the admission of digital evidence? Is digital
evidence regarded as a separate means of evidence or included in established means of evidence?
- Adaption of existing evidence law to new technology may take the
form of rewriting the definitions of one or several means of evidence. Jurisdictions which acknowledge
documents as a separate means of evidence may just simply adjust the meaning of ‘document’
in order to explicitly include electronically saved information in the list of means of evidence. A
recent example is provided by the EWCPR 31.4:
‘document’ means anything in which information of any description is
recorded; and ‘copy’, in relation to a document, means anything onto which information recorded
in the document has been copied, by whatever means and whether directly or indirectly.
Achieved, then, is not only the inclusion of digital documents in its pure
non-paper-based form, but also the inclusion of any sort of recorded information no matter whether it
is a film, tape recording, painting and so on. A similar wide definition of documents is found in ERCP Rule
111(2).
- Alternatively, one may widen the definition of ‘tangible
evidence’ or ‘real evidence’. The NCCP § 26-1 is a result of such an approach:
Real evidence consists of individuals and objects (real property, movable property,
documents, electronically stored information etc.) where the person or object as such, or its properties,
state or content, contains information that may be important to the factual basis for the ruling in the
case.
That definition was a result of the 2005-reform of the Norwegian civil justice
system, which resulted in a new code of civil procedure (in force from 2008) and which was based on a
technologically neutral approach.[21] However, electronically stored information could be
admitted as evidence even before the 2005-reform. Even though the previous civil procedure code from 1915
did not contain any explicit definition concerning digital evidence, such evidence was admissible. Based on
the principle of free presentation of evidence, a new type of evidence, or a new media in which information
is stored, became admissible even though it was not included in the means of evidence listed in the code.
After the 2005-reform, the legislator aims at exhaustively listing the means of evidence, but if a new type
of relevant information emerges it should be accepted as evidence, if necessary, directly based on the
principle of free presentation of evidence.
- In German law, electronically stored information may be offered
either as documents (Urkunde) or evidence taken by
visual inspection (Augenscheinsbeweis).[22] GCCP § 416 is
the key provision on documents as evidence, and a print of electronically stored information is regarded
as documentary evidence, see § 416a which was amended by a reform of 2004. GCCP § 371(1), the
basic rule on evidence taken by visual inspection, assumes that electronic documents are evidence taken
by visual inspection:
Evidence taken by visual inspection if offered by designating the object to be
inspected visually and by citing the facts regarding which evidence is to be provided. If an electronic
document is to serve as evidence, it shall be so offered as evidence by producing or transmitting the
file.
- Neither part of GCCP provides an explicit definition
of digital documents or digitally stored information. In practice, the concept of electronic documents
has been regarded as rather wide. For instance, the BGH concluded that evidence in the form of a dashcam
recording may be admitted despite of protection of data regulations.[23] Since
for instance, a webcam recording is regarded as an admissible piece of evidence, the means of evidence
in German law seem to be as wide as the definition of documents in for instance English law. The core of
German discussions on digitally stored information has not regarded whether such information is
admissible. Instead, the debates have focused on integrity, authenticity, and certain special problems
concerning the evidential value of digital documents compared to for instance papers from an
administrative body.[24]
- In Spain after the year 2000-reform, which introduced a new civil
procedural code and overhauled the entire civil procedure law, digital evidence is in general
admissible. The code is written in a technologically neutral language, and opens explicitly for
the inclusion of new means of evidence, see the SPCCP Art 299 (3):
When certainty about relevant facts could be obtained by any other means not
expressly provided for in the previous sections of this article, the court, at the request of a party, will
admit it as evidence, adopting the measures that in each case are necessary.
At the start of the millennium, these open criteria were used for including e-mails
and video files, nowadays have for instance WhatsApp messages and similar instant communication devices also
been included.
- In the Canadian province of Quebec, the principle of
technological neutrality is secured by a separate cross-sectoral Act which requires the
‘functional equivalence and legal value of document, regardless of the medium
used’.[25] A vide concept of ‘document’ is found in the Act Ch II sec 3:
Information inscribed on a medium constitutes a document. The information is
delimited and structured, according to the medium used, by tangible or logical features and is intelligible
in the form of words, sounds or images. The information may be rendered using any type of writing, including
a system of symbols that may be transcribed into words, sounds or images or another system of
symbols.
The basic ideology of the Act is that the value of a document, ‘particularly
… its admissibility as evidence, is neither increased nor diminished solely because of the medium or
technology chosen’[26]. So long as the integrity of a technology-based document can be guaranteed, the same is deemed
functionally equivalent to its paper counterpart. In the alternative, the same technology-based document may
still be admissible as (real or testimonial) evidence or serve as commencement of proof on the condition
that its authenticity (or authorship) is established.
- Although the legislative techniques are rather
different in England and Wales, Norway, Spain, Canada, and Germany, all have completed a form of
technological neutral law concerning the admission of digital evidence. As has been concluded in a
study of evidence law in Europe, a principle of neutral technology tends to be established by widening
the scope of rules concerning written means of evidence or by analogues to rules concerning traditional
means of evidence.[27] When applying a technique of widening the scope of existing rules on evidence, normally
there is not a pressing need for exact definitions of for instance digital evidence, digital
information, or digitally stored information.[28] However, in jurisdictions where more than one
category of evidence could be relevant for admission of digital evidence, a choice must be taken on
which set of rules to apply for each type of digital evidence. The German distinction between documents
and evidence taken by visual inspection is one example of a distinction originally made for physical
evidence being applied for digital evidence.[29]
- Most jurisdictions seem to have taken formal amendments of their
procedural codes in order to include digital evidence in the system of means of evidence. Even though
digital evidence nowadays dominates the evidential situation in very many cases and undoubtfully has
become a very important type of evidence, the formal inclusion of such evidence has been taken within
the existing means of evidence. Hence, the system of means of evidence established in a pre-digital age,
has been able to include new and radically different types of evidence.
- However, there are examples of evidence which has not
been admitted or disclosed because of its digital nature or situations where the digital nature of
evidence has raised questions of admissibility or disclosure. Surprisingly, the rather progressive and
modern Sweden struggled somewhat with the inclusion of digital evidence. The SWCP dates all the way
back to 1942. The code has been revised several times, but the rules on evidence have not seen a
full-fledged reform and some of the old-fashioned wordings from before VW II are still in force. The
system of means of evidence developed at that time is still valid law and the basic definitions of the
means of evidence have not been revised after the emergence of digital evidence. Neither are any special
rules for access to digital evidence developed. CJP § 2 ch 38 contains an important rule on access
to evidence, but the somewhat old-fashioned wording skriftlig
handling (written document) still defines the scope of application for a
party’s obligation to produce evidence. In 1998, the Swedish Supreme Court[30] decided that
digitally stored information was covered by the obligation to produce evidence. Hence, the opposite
party could claim pre-trial access to a printed version of the file. There still was uncertainty as to
whether a party could claim access to evidence in its digital form,[31] and that was unclear until a
second decision by the Supreme Court came in 2020.[32] HD’s decision in Idre Fjällrestauranger AB deals with several basic
aspects on access to evidence, including whether disclosure of evidence could take a digital form. The
Supreme Court concluded that such e-disclosure could be claimed; disclosure could be in the form which
the party controlling digitally stored evidence had stored the evidence or in a digital form which is
generally accepted for storing, using or transferring the information in question.[33] In that particular
case, the party controlling the evidence had to disclose the evidence by using a SIE4 file
format.[34]
3.2 Integrity and Authenticity
3.2.1 The Digital Revolution and the Growing Importance of
Integrity and Authenticity
- As was pointed out in chapter 1, the technology
neutrality principle means that any technology-based document should be deemed functionally equivalent
to their paper counterpart in terms of evidentiary value. Considering, however, the increased
alterability of technology-based documents, which too often goes unnoticed to the naked eye, a
full-fledged functional equivalence principle could not be achieved absent basic safeguards as to the
trustworthiness of digital evidence. The issue of trustworthiness of digital evidence may be split in at
least two subparts: integrity (non-alteration)
and authenticity (authorship, originality, etc)
of technology-based documents.[35]
- Although issues of integrity and authenticity are well-known for
analog phenomena, their potential importance explodes in a digital world. Photos are one of very many
examples: While analog photos could be manipulated, Stalin’s erasing of Trotsky and Kamenev from a
picture taken at one of Lenin’s speeches is infamous,[36] digital photos can be manipulated very much
easier, by many techniques providing potentially radical and non-trackable alterations. The same goes
for documents which could be altered or counterfeited even back in the analog age, but the possibility
for doing so multiplies when email replaces old-fashioned letters. Because of the enhanced risk of
manipulation of digital documents, these questions have gained importance and a growing industry of
experts may assist parties or judges whenever the integrity or authenticity of a digital document is
questioned.
- Even in cases where technology-based documents only serve as
circumstantial evidence, their authenticity are ordinarily established by admissions or testimonies of
persons involved in its confection, reproduction, transfer, or maintenance. Emerging, then, is a
pressing need for evidence concerning the integrity and authenticity of digital evidence. Such
second-order evidence, collateral[37] or auxiliary evidence, does not in itself
contain evidentiary value, it merely affects the value of other pieces of evidence. Second-order
evidence is not a consequence of the digital revolution. Second-order evidence is for instance
information concerning a witness’ ability to see and hear, whether the expertise of an alleged
expert actually covers the particular question or issue, or whether a paper document which is presented
as a genuine public or private document actually are such a document. But the digital revolution highly
increases the need for second-order evidence.
- The technical side of integrity and authenticity is,
not surprisingly, highly advanced, and more or less specific methods are available for specific
problems.[38] Hashing is one of many available technologies for these purposes. Exact HASH-values
implies that two files are of the exact same content. Different HASH-values may not mean that the
content of the files is different, at least not different in the sense which is of interest in these
lawsuits. Whether two or more electronic files are of equal content may be relevant both under evidence
law and under substantive law, which in its turn leaves the door open for new technological
difficulties. In some cases, such a method will be of both evidential and substantive relevance, for
instance when someone allegedly illegally copied files.[39]
3.2.2 Legal Approaches to Integrity and Authenticity
- Since issues of integrity and authenticity of digital documents are,
in principle, no different from establishing the integrity and authenticity of paper-based documents,
existing legal frameworks for analog evidence provide a plausible starting point for the evolution
of evidence law into a new digital landscape. On the other hand, the growing importance of matters of
integrity and authenticity when digital evidence are involved and the variety of technical challenges
involved may suggest that these issues should be more thoroughly and detailed regulated. The principle
of technological neutrality may suggest an approach of widening the scope of rules for physical
evidence, while the exact same principle may suggest special legislation for each type of evidence so
long as special challenges are involved for specific types of evidence. Interestingly, ERCP do not
prefer one specific approach for dealing with integrity and authenticity of digital evidence, see Rule
111(4):
Parties may challenge the authenticity of any document submitted as evidence. In
such a case, the court must order the parties to take such steps as are necessary to establish the
document’s authenticity.
While the parties shall have a right to challenge a document’s authenticity,
which in the context probably is to be read as also covering integrity, the rule does not prescribe a
specific rule of method for handling such challenges. The official comments underline that different
approaches are found in different European jurisdictions:
Parties may challenge the authenticity, accuracy or completeness of documentary
evidence under Rule 111(4). In some cases, it will be a matter of the free evaluation of evidence; however,
if the authorship of the document is at stake, more serious steps could be taken within the procedure or
affecting its development. Specific types of proceedings to test such evidence vary across European
jurisdictions, e.g., the French inscription de faux or
the Italian querela di falso and are not addressed in
the present Rules.[40]
Apparently, two models are in play; challenges of integrity or authenticity may be
handled under the evaluation of the evidence, or such challenges could be handled in a separate, specialized
proceeding maintained before the evaluation of the evidence.
- The model of separate, specialized proceedings for authenticity
applies in Italy and France, among which we introduce Italian law only. Italian evidence law has
maintained certain features remaining from the older systems of legal proof, which means that statutory
provisions define certain means of evidence, under given circumstances, as sufficient proof and may
provide hierarchies of the evidential value of certain means of evidence.[41] According to Silvestri,
documents are on top of a hypothetical hierarchy of the means of evidence:[42]
In principle, public deeds and private writings are conclusive evidence that the
statements they report have been made by the person whom the document indicates as the author of the
statements themselves. It must be emphasized, though, that not even public deeds are conclusive evidence as
regards the intrinsic truth of the statements they report, with the only exception concerning the statements
of the public notary himself. In particular, a public deed is conclusive evidence that it was made by the
public notary who signed it. It is also conclusive evidence as regards any events that the notary states as
having occurred in his presence; furthermore, it is conclusive evidence as regards the performance of any
acts that the notary certifies he himself has performed. In order to deprive public deeds of their special
evidentiary weight a special proceeding, known as ‘querela di falso’ must be instituted.
(Silvestri p. 10)
- In Canada, a detailed model for handling issues of a
document’s integrity (and to some degree authenticity) is in force on federal level and in most
provinces.[43] Although the details concerning legislative style and the legal requirements differ
from one province to another, they are based on certain common features. In order not to dwell on
details, we limit our presentation to the province of Quebec, which was the first province to develop
these rules, and which has been a role model for other provinces. In Quebec, the aforementioned Act
concerning the technology-neutral principle entails a couple of solutions for disputes over
the integrity of a document. QAELFIT Rule 6 defines what must be presented before a
document’s integrity is ‘ensured’ and thereby implicitly introducing a definition of
‘integrity’:
The integrity of a document is ensured if it is possible to verify that the
information it contains has not been altered and has been maintained in its entirety, and that the medium
used provides stability and the required perennity to the information.
The integrity of a document must be maintained throughout its life cycle, from
creation, in the course of transfer, consultation and transmission, during retention and until archiving or
destruction.
To assess the integrity of a document, particular account must be taken of the
security measures applied to protect the document throughout its life cycle.
- A direct proof of integrity would have need of (sophisticated)
technological expertise beyond the reach and means of most parties and beyond what could be
proportionate in most cases. To begin with, the law does not require positive evidence of integrity to
be administered each time a technology-based document has to be adduced at trial. The law rather
presumes the integrity-preserving capability of any technological media used for the purposes of
communication, unless detailed challenges thereof be provided from the opposing party which tips the
balance of probabilities the other way around, see QAELFIT Rule 7:
It is not necessary to prove that the medium of a document or that the processes,
systems or technology used to communicate by means of a document ensure its integrity, unless the person
contesting the admission of the document establishes, upon a preponderance of evidence, that the integrity
of the document has been affected.
- Even in cases where a technology-based document only serves as (real
or testimonial) circumstantial evidence or commencement of proof, its authenticity is usually
established through admissions or testimonies of the persons involved in its confection, reproduction,
transfer, and maintenance. This is in fact no different from establishing the authenticity of paper
documents as the story of their originating is being unfolded on the witness stand. Even though the
concepts of integrity and authenticity may appear difficult to conceptualize at first glance, their
application has hitherto turned out to be relatively straightforward.
- Several key, characteristic features may be extracted from the
Canadian model. Firstly, the detailed legislation contains both formal definitions and operational rules
in order to fulfil the principle of technological neutrality. Secondly, the requirements concerning
integrity are conditions for admissibility of
digital documents. However, when a digital document fails the test of integrity it may still,
‘depending on the circumstances, be admissible as testimonial evidence or real evidence and serve
as commencement of proof, as provided for in article 2865 of the Civil Code.’[44] Thirdly, the model
includes a presumption of integrity which places a burden of argumentation on the party who challenges
the document’s integrity and puts on a standard of evidence (preponderance of the evidence) that
must be fulfilled before the presumption may be altered.
- None of the Scandinavian countries acknowledge any
kind of special proceedings concerning the authentication or integrity of a (digital) document or
any other kind of special rule for the admissibility of such evidence. Any doubt concerning the
authenticity or integrity of a (digital) document or any other piece of evidence, no matter whether it
is challenged by a party or by the court on its own motion, are subject for the judge’s free
evaluation of evidence.[45] The Norwegian CCP of 1915 §§ 261-263 contained special rules concerning
authenticity and integrity of public documents which most probably also applied to public digital
documents. For public documents, § 261 established a presumption for authenticity and integrity.
The presumption was rebuttable, and the burden of proof was on the party who claimed that the document
was false. Pursuant to § 262, a private document itself was sufficient evidence for authenticity
and integrity unless there was a concrete reason for doubt. If a party alleged that the document was
false, the issue should be solved under the principle of free evaluation of evidence and based on the
burden of proof for the material issue. The code of 1915 also had rules on the evidential value of such
documents, for instance, did § 264 establish that a public document was sufficient evidence for a
document’s content unless other information suggested otherwise. These rules were probably
inspired by German and Austrian law. However, these rules were not taken into the code of 2005. After
the 2005-reform, there are no specific rules for authenticity or integrity of any kind of evidence.
However, the parties may disagree on the authenticity and integrity of documents, the special problems
concerning digital evidence are well-known[46] and there may very well be evidence offered
concerning authenticity and integrity. From a functional point of view, Scandinavian law probably
contains an unwritten factual presumption of a (digital) document’s authenticity and integrity.
According to some scholars, a party alleging that a document is false must present evidence to support
that allegation.[47] Alternatively, one may say that a piece of evidence is regarded as authentic unless a
party argues otherwise or there are specific reasons to question the evidence’s authenticity. The
court may order a party and any witness to bring documents or other evidence to a court in order to
examine its authenticity.[48]
- Although problems concerning authenticity and integrity are of
growing importance in a digital age, Norwegian law has (for good reasons) deleted all special rules
concerning authenticity and integrity. The rules were regarded unnecessary or partly also
unjustified.[49] The burden of proof concerning a public document (§ 262), which was not a rule on
admissibility, would nowadays be regarded as incoherent with the general law of evidence. In general,
rules on the burden of proof (and standard of evidence) do apply for entire material issues of fact
and not to specific pieces of evidence.[50] To sum up, a key characteristic of the
Scandinavian regulation is that evidence will not be inadmissible because of problems of integrity or
authenticity unless the evidence is regarded as lacking evidential value because of these problems.
There is no formal presumption of a digital document’s authenticity or integrity, but factual
presumptions are most probably involved in practice.
- German law seems to contain a model with these key characteristics:
there are no separate proceedings for the integrity and authenticity of digital documents, no rules
after which digital evidence will be regarded inadmissible because of uncertainty concerning their
integrity or authentication, and these matters are more or less totally left to the judge’s
evaluation of evidence. However, German law contains several rules which in general terms define the
evidential value of documents, see GCCP § 371a(1):
The rules concerning the evidentiary value of private records and documents shall be
applied mutatis mutandis to private electronic documents bearing a qualified electronic signature. The
appearance to authenticity of a declaration available in electronic form, as obtained from reviewing it
pursuant to the Electronic Signature Act (Signaturgesetz), can be cast into doubt only by facts giving rise to serious doubts as to the declaration
having been made by the holder of the signature key.
- The integrity and authenticity of an electronic document is related
to qualified electronic signature based on the Signaturgesetz, after which an electronic document signed with such e-signature is equivalent to a
handwritten signature. The document’s integrity is secured by the binding of the signature to a
certain date and its authenticity is secured by the signatures binding to the person who signs it.
Technically speaking, the signature program fixes a HASH value to the signed document, and that value
will be changed whenever a person later changes the document.[51] A similar provision for public documents is
found in the GCCP § 371b:
The rules concerning the evidentiary value of public records and documents shall be
applied mutatis mutandis to public records or documents that have been transformed, using the
state-of-the-art technology, into electronic documents by a public authority, or a person or entity vested
with public trust, and where a confirmation is available that the electronic document is a true and correct
copy of the original, both as an image and in terms of its substance. Where the document and the
confirmation bear a qualified electronic signature, section 437 shall apply mutatis mutandis.
- When the integrity and authenticity of a private or public
electronic document is secured by the means specified in the provision, the document has evidentiary
value equal to an old-fashioned paper document. To sum up, the German model leaves all issues of
integrity and authenticity to the final evaluation of the evidence. In that evaluation, the judge shall
bring in some basic presumptions concerning the authenticity of all sorts of documents regardless of
whether the documents are paper-based or in a digital format.
- In some jurisdictions, the court may ask for the original instead of
a copy either by a court order or under the threat of declaring the copy inadmissible.[52] However, while a
distinction between original and copy makes sense for analog documents, it does not for digital
documents.[53] It is a special case of applying admissibility rules established for a paper-based age
to modern documents. The challenge of such application was one of the first issues to be discussed
after the emergence of digital documents, and a solution was suggested in the UNCITRAL MLEC Art
8:
(1) Where the law requires information to be presented or retained in its original
form, that requirement is met by a data message if:
(a) there exists a reliable assurance as to the integrity of the information from
the time when it was first generated in its final form, as a data message or otherwise; and
(b) where it is required that information be presented, that information is capable
of being displayed to the person to whom it is to be presented.
- This problem of application has been widely discussed in the common
law countries. A solution similar to article 8 is found in Quebec, see QAELFIT ch 2 Sec 12:
A technology-based document may fulfil the functions of an original. To that end,
the integrity of the document must be ensured and, where the desired function is to establish
(1) that the document is the source document from which copies are made, the
components of the source document must be retained so that they may subsequently be used as a
reference;
(2) that the document is unique, its components or its medium must be structured by
a process that makes it possible to verify that the document is unique, in particular through the inclusion
of an exclusive or distinctive component or the exclusion of any form of reproduction;
(3) that the document is the first form of a document linked to a person, its
components or its medium must be structured by a process that makes it possible to verify that the document
is unique, to identify the person with whom the document is linked and to maintain the link throughout the
life cycle of the document.
For the purposes of subparagraphs 2 and 3 of the first paragraph, the processes must
be based on technical norms and standards approved by a recognized body referred to in section 68.
- However, most jurisdictions do not regulate these matters in detail.
There are no such regulations concerning application of the distinction between copy and original in the
Scandinavian countries for instance. In Sweden, SWCP § 38:1 simply reads:
Written documents invoked as evidence should be produced in the original. A
certified copy may be produced if this is found sufficient or if the original is not obtainable.
- Although that clause was written with old-fashioned documents in
mind, it obviously applies to digital documents as well. However, neither the Swedish code nor case law
prescribes the way in which such a clause shall be applied for digital documents. Since Swedish law does
not contain any guidelines, UNCITRAL MLEC Art 8 may provide a possible solution. However, a more likely
approach in Scandinavia is to admit the evidence even though it might be regarded as a copy, let the
parties present their arguments on whether the digital document is trustworthy or not, and decide on
that matter in the free evaluation of the evidence.
3.2.3 Summing Up
- Although the integrity and authenticity of digital documents may
appear difficult to conceptualize at first glance, their application has turned out to be relatively
straightforward, at least in the practice of most jurisdictions analysed. An excellent example is
offered by Québec, where the law does not require positive evidence of integrity to be
administered every time a technology-based document is adduced at trial. Such a direct proof would have
need of (sophisticated) technological expertise beyond the reach and means of most plaintiffs. Instead,
the law rather presumes the integrity-preserving capability of any technological media used for the
purposes of communication unless detailed challenges thereof be provided from the opposing party and tip
the balance of probabilities.
- Typically, new technical innovation leads to new techniques for
checking the integrity and authenticity of evidence based on that innovation. While digital evidence
provides better opportunities for altering and manipulation, digital techniques also provide better
opportunities for tracking down alteration or manipulation. Just as the digital revolution has brought a
whole new branch of evidence, the court may use a variety of techniques in order to check the integrity
and authentication of a digital piece of evidence.
4 Access to Electronically Stored Information
4.1 Discovery and Disclosure in Anglo-American Jurisdictions
- Broad and general rights to access evidence is a
paradigmatic feature of Anglo-American civil procedure law. Rules on discovery were established way back
in the history of common law jurisdiction, for instance dates one of the leading court decisions –
Peruvian Guano – all the way back till 1882.[54] According to Adrian Zuckerman, ‘[t]he
modern history of the law of civil procedure is in a large measure the history of the evolution of
discovery from its Chancery origins.’[55] While discovery is the traditional keyword in all common law
countries, disclosure is used in England and
Wales after the Woolf-reform from the late 1990s.[56] Discovery or disclosure is a set of rules
obliging any party and many third parties to disclose relevant evidence, in the US also information
which may lead to relevant evidence, no matter whether the evidence is positive or negative for his
case, to the opposing party. The available discovery/disclosure devices vary quite a lot from one common
law jurisdiction to another where the US rules, since the emergence of USFRCP in 1938,[57] are most open and
liberal in the sense that they provide the most far-reaching demands on parties’ disclosure. A
joint feature of discovery and disclosure, which distinguishes common law jurisdictions from most other
jurisdictions, is that parties are required to exchange relevant documents and other evidence at a very
early stage of proceedings. Normally, disclosure and discovery are in action after commencement and
before trial. Another characteristic feature is that especially American Discovery is a basically
privatized institution.[58] While the court most certainly has a role to play during discovery or disclosure,
especially when the parties are not able to agree on the way to proceed, ideally speaking these
mechanisms work between the parties without the court’s assistance.
- Even though instruments similar to discovery or disclosure are
known outside common law jurisdictions, the common law countries are best suited for analysis of the
impact of the digital revolution on legal demands on access to evidence. Since rules on discovery and
disclosure was well-established before the digital revolution, analysis of US law, English law, and
Canadian law are well suited for regarding whether access to digital evidence are approached similar to
access to other evidence. Furthermore, since discovery or disclosure are of high practical significance
in these countries, one would expect that efforts to find practically working solutions for a digital
age have been taken. Experiences from these jurisdictions may therefore signal what other jurisdictions
may face if they invent access to evidence rules similar to the Anglo-American.
- Discovery and disclosure serve several purposes. Firstly, and most
basically, open and early access to all relevant evidence for both parties, are regarded as a means for
truth-seeking.[59] When both parties have access to all evidence, for all pieces of evidence at least one
party will have both an interest in bringing that evidence to court and will be able to present it.
Secondly, discovery or disclosure reduces the risk of ambush and surprise during trial. Thirdly, these
mechanisms are intended to promote settlements based on well-informed negotiations where no party should
have the benefit of hiding his or her best cards.[60] Fourthly, also in other contexts than
negotiations for settlement, these mechanisms are intended to reduce the advantage of having exclusive
access to evidence.
4.2 E-Discovery and E-Disclosure
- Although discovery and disclosure are
well-established, important parts of Anglo-American civil procedure law, they have also been subject to
critique and multiple reforms. While a discussion of the high number of reforms in each jurisdiction
would lead to very many details, we will introduce the adjustments taken in order to update discovery
and disclosure for a digital era. In the US and other common jurisdictions, a concept of e-discovery has
been developed since the start of the millennium and e-discovery has become a massively growing
industry.[61] Formally speaking, E-discovery is just the use of discovery devices in order to get
access to electronically stored information. However, e-discovery is substantially different from the
old-fashioned discovery of paper-based documents. While discovery of documents back in the day was
characterized by tons of paper loaded into offices reviewed by a team of lawyers (solicitors) and
paralegals, nowadays documents are stored digitally and reviewed by one or a few lawyers together with
digital experts and their IT-programs and algorithms.
- In the US, most elements of e-discovery are regulated by general
rules on discovery of documents. The concept of document is wide and explicitly covers all sorts of
electronically stored information, see USFRCP Rule 34(a)(1)(A):
any designated documents or electronically stored information—including
writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data
compilations—stored in any medium from which information can be obtained either directly or, if
necessary, after translation by the responding party into a reasonably usable form.
- However, special rules of two kinds apply for
discovery of electronically stored information. Firstly, some special provisions specify and to some
degree limit discovery of such information and provide parties with special objections against discovery
requests.[62] Secondly, other special provisions deal with the methods or
forms in which electronically stored information may be disclosed, se USFRCP Rule 34(b)(2)(E):
ii) If a request does not specify a form for producing electronically stored
information, a party must produce it in a form or forms in which it is ordinarily maintained or in a
reasonably usable form or forms; and
(iii) A party need not produce the same electronically stored information in more
than one form.
In practice, the matter of finding the most suitable form and method for e-discovery
is the most important.[63]
- In England and Wales, disclosure of digitally stored information is
dealt with by general provisions in the Civil Procedure Rules chapter 31. The English civil justice
system is famous for frequent reforms,[64] which during the last two decades also have
concerned disclosure of electronic documents, see for instance the Jackson-report:
On 22nd June 2009 I attended an e-disclosure demonstration at 4 Pump Court chambers.
Three different specialist providers each took data from the Enron case and demonstrated how their
respective software systems could search, sample, categorise and organise the data. The object of each of
these systems is (i) to whittle down as far as possible the potentially relevant documents which will be
passed to the lawyers for review and (ii) to enable the lawyers to search and organise documents passed to
them. I am bound to say that the systems developed by each of those specialist providers are extremely
impressive. I am sure that it would assist other members of the judiciary to know what technological help is
available to the parties, to enable them to manage the disclosure process.[65]
- Prior to the Jackson-reform, a Practice Direction concerning
disclosure of electronic documents came into force in 2010.[66] That PD followed up on the broad definition of
‘documents’ in the general rules on disclosure and defines ‘Electronic
Document’, ‘Keyword search’, ‘Metadata’ and several other technological
concepts of importance under e-disclosure.[67] Unless the judge decides otherwise, the PD
applies only to multi-track cases.[68] The intention of the PD is neither to broaden
nor narrow the extent or number of documents or e-files being disclosed, rather it is to encourage
parties to cooperate and prepare the ground for effective and proportionate agreements on access to
electronically stored documents.[69] The PD especially underlines that parties when
considering disclosure of electronic documents shall bear in mind these general principles:
(1) Electronic Documents should be managed efficiently in order to minimise the cost
incurred;
(2) technology should be used in order to ensure that document management activities
are undertaken efficiently and effectively;
(3) disclosure should be given in a manner which gives effect to the overriding
objective;
(4) Electronic Documents should generally be made available for inspection in a form
which allows the party receiving the documents the same ability to access, search, review and display the
documents as the party giving disclosure; and
(5) disclosure of Electronic Documents which are of no relevance to the proceedings
may place an excessive burden in time and cost on the party to whom disclosure is given.
- The PD also includes detailed rules on mandatory discussions between
the parties, especially concerning the use of technology, before the first case management
conference.[70] Annexed to the PD is the Electronic Documents Questionnaire, which contain questions
concerning what a party may disclose and what that party expects the opposite party to disclose. The
questionnaire also contains questions on which methods a party would recommend, including which keywords
that could be used.
- In Canada, e-discovery is mainly regulated on
the basis of the Sedona Canada Principles Addressing Electronic Discovery.[71] These principles are
non-binding soft law agreed upon by a working group of experts, but many common law provinces and
territories of Canada have developed a set of rules on the basis of the principles. The guiding
principles are the discoverability of electronically stored information, cooperation between
parties and judges, and proportionality.[72] When deciding on
proportionality, these factors shall be taken into account:[73]
- the nature and scope of the litigation;
- the importance and complexity of the issues and interests at stake
and the amounts in controversy;
- the relevance of the available electronically stored
information;
- the importance of the electronically stored information to the
Court’s adjudication in a given case; and
- the costs, burden and delay that the discovery of the
electronically stored information may impose on the parties.
- Even though the principle of proportionality in most provinces
applies for discovery in general, it is of especial significance for disclosure of electronically stored
information because of the potential costs and burdens involved for such information.[74] In order to obtain
proportionality and to resolve disagreements at an earliest possible time, parties are obliged to
cooperate in setting an e-discovery plan, see Sedona Principle 4:
Counsel and parties should cooperate in developing a joint discovery plan to address
all aspects of discovery and should continue to cooperate throughout the discovery process, including the
identification, preservation, collection, processing, review, and production of electronically stored
information.
- This principle of cooperation in good faith is a general element of
discovery and it is of special importance because of the alterability of digital information. Somewhat
related to the principle of cooperation, as soon litigation may be anticipated, parties are required to
‘consider their obligation to take reasonable and good-faith steps to preserve potentially
relevant electronically stored information’.[75] Within the e-discovery plan, the parties may
discuss and hopefully agree on use of technology.[76] In line with this, Principle 7 makes clear that
parties are entitled to use ‘electronic tools and processes to satisfy its discovery
obligations.’ While the Sedona Principles do not in general recommend specific types of
technology, the official comments contain thorough discussions over available tools, their pros and
cons, and what is suitable under what circumstances.
- Although the style of specialized regulation for discovery or
disclosure of digitally stored information varies quite significantly from one common law jurisdiction
to another, quintessential elements of content are recognizable in both the US, England and Wales,
and many provinces of Canada. In all these jurisdictions, the aim of e-discovery or e-disclosure
regulation is to make operational the traditional rules on access to evidence for a new type of
information. Hence, all jurisdictions aim at upholding rights of broad and quite general discovery or
disclosure within the era of digital revolution while at the same time respecting the limits of such
rights. All jurisdictions also aim at making the best possible use of new technology within e-discovery
or e-disclosure. The choice of the best possible technology is to some degree based on formal
regulations, but in practice, the decisions must be taken from case to case. If parties agree on the
choice of technology, that would in general be respected by the court. However, the court must decide on
these matters whenever the parties do not agree.
- A process of e-discovery normally is distinguished into a set of
phases. According to the Electronic Discovery Reference Model (EDRM),[77] such a process starts with
the identification, preservation, and collection of relevant documents. Thereafter, e-discovery
goes on with a phase consisting of processing, review, and production of evidence. Questions on which
technology to apply might be raised at all these stages and several forms of technology have been
developed for each phase. We will not dwell on all these phases but will concentrate on the choice of
technology for review, which arguably may be regarded as the most debated choice-of-technology question
within e-discovery of e-disclosure in all common law jurisdictions. The commonalities of both phases of
such processes and the choice of technology are underlined by the mutual relevance of court practice on
these matters across common law jurisdictions.
4.3 Technology-Assisted Review
4.3.1 What is TAR?
- Since rules on discovery or disclosure basically
provide a pre-trial obligation of any party or third party who controls evidence to make that evidence
available, very often a collection of documents must be reviewed in order to filter out the evidence
that is relevant and not privileged. If a party controls a large number of documents, a typical
situation after a digital revolution, an information overload problem arises. Within common law
jurisdictions, methods of review have been developed in order to bring up as much relevant and
non-privileged evidence as possible for the least amount of time and money in situations of information
overload. Traditionally, a method of manual review has been applied. An exhaustive manual review means
that one or several human beings examine each document in the collection, and code them as responsive or
not.[78] An
alternative method is Technology-assisted review (TAR)[79], also known as computer-assisted review
(CAR)[80] or
predictive coding[81]. TAR leaves the review to an interplay between humans and machines:
A technology-assisted review process involves the interplay of humans and computers
to identify the documents in a collection that are responsive to a production request, or to identify those
documents that should be withheld on the basis of privilege. A human examines and codes only those documents
the computer identifies – a tiny fraction of the entire collection. Using the results of this human
review, the computer codes the remaining documents in the collection for responsiveness (or
privilege).[82]
- TAR involves machine learning combined with algorithmic tools, such
as metadata searching, contextual searching, and concept searching.[83] The application of TAR on a set
of documents includes several steps:
The first step in the use of predictive coding for document review would require
developing a ‘seed set’ or ‘training set’. This refers to a set of documents that is
randomly or judgmentally selected as sample from the entire document set to be reviewed. A person very
knowledgeable with the litigation (usually a senior lawyer) would then review each of the documents in the
seed set and code them accordingly. The coded documents from the seed set are then fed into the predictive
coding software to ‘train’ the software. The software analyzes the seed set for common concepts.
From this analysis, it develops an internal formula for future prediction.
The software is then made to apply the algorithm in coding documents from the
universal set. Samples from the computer coded documents are then reviewed by the lawyer(s), corrected and
fed back into the system. The ‘training’ of the software continues with further coding and
feeding of documents until the software ‘learns’ sufficiently to achieve a desired or acceptable
rate of accuracy. The software is then made to apply the algorithm to the entire document set, coding
documents and classifying them accordingly.[84]
- Normally, TAR is used in two stages of discovery or
disclosure.[85] Firstly, it may be used to identify those documents in a party’s possession that
are relevant for the case (relevance review). Secondly, it may be used for filtering out privileged
documents (privilege review). Privilege review is the most difficult and sensitive one. Of course, a
party would normally not want to have privileged information spread, and disclosure of privileged
information will in most circumstances imply a waiver.[86]
- In its use of machine learning, TAR also deviates from the
well-established use of keywords in searching for relevant information. TAR is far more advanced than
using keywords, but on the other does the use of TAR require more development of the searching mechanism
in each particular case. One of the advantages of TAR is that it is able to search for words in context
is an advantage of TAR compared to traditional keyword search.
4.3.2 Court Practice Concerning TAR from Common Law
Jurisdictions
- For many years, manual review was regarded as the only technique
securing all relevant documents to be included, and all privileged documents to be excluded. At best TAR
was acknowledged as more efficient, meaning that money and time could be saved. TAR got its breakthrough
after two pilot tests suggested that TAR is both more cost-efficient than manual review, and it yields
more accurate results with lower effort.[87] Nowadays, TAR is a well-known tool for
e-discovery or e-disclosure which is mentioned in standard literature both in the US,[88] Canada,[89] and England and
Wales[90].
Application of such a method has been dealt with in judgments from all these jurisdictions, and
experiences from these cases both illustrate the common use of TAR and problems it may raise.
- Application of TAR in discovery proceedings was first brought to
court in Da Silva Moore and others v Publicis Groupe SA and
MLSGroup,[91] a case concerning gender discrimination against
one of the big four advertising conglomerates in the US. According to the plaintiffs, Publicis had a
systemic, company-wide policy which left women out of level positions and led to lower salaries for
women. The defendants suggested TAR for review of approximately three million electronic documents, and
the judge – one of very few judges who was both trained in and enthusiastic about TAR at that
time[92] – approved the suggestion:
The decision to allow computer-assisted review in this case was relatively easy
– the parties agreed to its use (although disagreed about how best to implement such review). The
Court recognizes that computer-assisted review is not a magic, Staples-Easy-Button, solution appropriate for
all cases. The technology exists and should be used where appropriate, but it is not a case of machine
replacing humans: it is the process used and the interaction of man and machine that the courts need to
examine.
- Furthermore, the judge underlined that TAR enhances the prospects
of the inclusion of relevant documents and exclusion of irrelevant documents and has the ability to
do so as cheaply and fast as possible. According to the judge, TAR is better than the alternatives,
including keyword searches, and the application of such a review should be in accordance with the
spirit of the civil procedural rules:
While this Court recognizes that computer-assisted review is not perfect, the
Federal Rules of Civil Procedure do not require perfection.
The court summed up:
In this case, the Court determined that the use of predictive coding was
appropriate considering: (1) the parties' agreement, (2) the vast amount of ESI to be reviewed (over
three million documents), (3) the superiority of computer-assisted review to the available alternatives
(i.e., linear manual review or keyword searches), (4) the need for cost effectiveness and proportionality
under Rule 26(b)(2)(C), and (5) the transparent process proposed by MSL.
- For the application of TAR, the court stressed the need for
cooperation between parties and the need for transparency. The court decision was appealed, but the
appeal was not successful.[93]
- In Progressive
Casualty Insurance Company v Delaney,[94] the parties agreed on a
jointly proposed ESI protocol that was approved by the court. Under the protocol, Progressive should
scan the entire group of 565,000 documents and chose manual review for doing so. When having spent
several months, Progressive concluded that the discovery proceeding became unacceptably costly and
unilaterally opted for predictive coding of the documents. The opposite party disagreed on the suggested
use of TAR, at least given the proceeding’s history, and the court was asked for a decision. The
judge refused Progressive’s request to use TAR on these grounds: Progressive had unilaterally
abandoned a protocol agreed between the parties and approved by the court, Progressive had not offered a
new cooperative and transparent protocol, and Progressive was only willing to review a fraction of the
documents. Importantly, the refusal of TAR was not due to the general features of such a method but
to the concrete circumstances of the case and especially the non-cooperative conduct of the party
requesting TAR.[95] If the parties to begin with had agreed on TAR based protocol, the court
‘would not hesitate to approve a transparent,
mutually agreed ESI protocol’.[96]
- A similar situation occurred in Bridgestone Americas Inc. v International Business Machines Corp.[97] After the parties agreed on a protocol, which was approved by the court, the
plaintiff was left with 2 million documents after having searched with keywords selected by the
defendant. The plaintiff considered the cost of manual review extraordinarily high and therefore asked
the court for permission to change to TAR. Although the defendant did protest, the court regarded the
case as a matter of efficiency and approved the requested change from manual review to TAR.
- In Hyles v New York
City,[98] the main issue was whether the defendant, on
the plaintiff’s request, can be forced to use TAR when the defendant preferred to use keyword
searching. The court held that the
plaintiff (Hyles) ‘absolutely is correct in
general, TAR is cheaper, more efficient and superior to keyword searching’
and referred to previous decisions taken by the court in similar issues,
including the decision in Da Silva Moore. The
court also agreed with the plaintiff’s view on parties’ obligation to cooperate in
discovery, but neither the requesting party nor the court had ‘the power to force cooperation or to force the responding
party to use TAR’. When citing Principle 6 of
the Sedona Principles, the court found the requested party to be in the best position to decide on the
choice of method for review of the documents. While the requesting party may at a later stage
demonstrate deficiencies in the production of evidence, at this early stage the requested party may
choose the method he found appropriate.
- The requested party’s discretion in choosing the method for
documentary review was a key factor in Livingston v the City of
Chicago.[99] In that case, the requested party (the City
of Chicago) wanted to use TAR. According to the plaintiff, the City of Chicago could not do so because
use of TAR would violate a previous court order. The court, however, emphasized that a previous order
assumed the use of keyword searches, but had not ordered the use of such a method. Since the plaintiffs
had not brought forward any compelling reasons for denying TAR, the City of Chicago was free to use that
technology.
- The High Court of Ireland dealt with TAR in Irish Bank Resolution Corp lmt v Sean Quinn.[100] The plaintiffs
were seeking the court’s approval for use of TAR.[101] The rules did not require manual review, and
the supreme court was competent to develop rules which are equitable and effective.[102] TAR was regarded
at least as accurate as manual review and definitely more effective.[103]
- In England and Wales, TAR has at least been subject
for two court decisions. First, the High Court of England and Wales decided Pyrrho Investments lmt v MWB
Property.[104] The parties agreed on the use of TAR, but the
judge still gave a decision on the matter.[105] The judge listed a number of factors in
favour of applying TAR in the present case, including the experiences from other common law
jurisdictions:[106]
(2) There is no evidence to show that the use of predictive coding software leads to
less accurate disclosure being given than, say, manual review alone or keyword searches and manual review
combined, and indeed there is some evidence (referred to in the US and Irish cases to which I referred
above) to the contrary.
(3) Moreover, there will be greater consistency in using the computer to apply the
approach of a senior lawyer towards the initial sample (as refined) to the whole document set, than in using
dozens, perhaps hundreds, of lower-grade fee-earners, each seeking independently to apply the relevant
criteria in relation to individual documents.
(4) There is nothing in the CPR or Practice Directions to prohibit the use of such software.
(5) The number of electronic documents which must be considered for relevance and
possible disclosure in the present case is huge, over 3 million.
(6) The cost of manually searching these documents would be enormous, amounting to
several million pounds at least. In my judgment, therefore, a full manual review of each document would be
“unreasonable” within paragraph 25 of Practice Direction B to Part
31 , at least where a suitable automated alternative exists at lower
cost.
(7) The costs of using predictive coding software would depend on various factors,
including importantly whether the number of documents is reduced by keyword searches, but the estimates
given in this case vary between £181,988 plus monthly hosting costs of £15,717, to
£469,049 plus monthly hosting costs of £20,820. This is obviously far less expensive than the
full manual alternative, though of course there may be additional costs if manual reviews still need to be
carried out when the software has done its best.
(8) The value of the claims made in this litigation is in the tens of millions of
pounds. In my judgment the estimated costs of using the software are proportionate.
(9) The trial in the present case is not until June 2017, so there would be plenty
of time to consider other disclosure methods if for any reason the predictive software route turned out to
be unsatisfactory.
(10) The parties have agreed on the use of the software, and also how to use it,
subject only to the approval of the Court.
- Since the court found no factors of any weight pointing in the
opposite direction, the court approved the use of TAR. Later, the High Court of England and Wales
decided Triumph Controls UK lmt v Primus International concerning a claim for some USD 65 million for breaches of warranty following the sale
of the defendant’s aerospace business. In December 2017, the defendant sought wide-ranging orders
arising out of deficiencies in the claimant’s disclosure:
In consequence, the defendants sought two more focused orders from the court. The
first was an order that the list of 860,000 folders and file paths which had been identified by the
claimants on the Farnborough shared drive should be provided to the defendants so that they could see
whether there were any folders or file paths which had not yet been – but should be – searched.
The second was for an order that the claimants undertake a manual review of the balance of 220,000 documents
(out of a total of 450,000) which had been identified as potentially disclosable following the keyword
search but which, other than a very limited sampling exercise, had not been further searched. (Sec 3)
- The parties had agreed on which keywords to use for disclosure, and
the documents should be manually reviewed.[107] The original keywords gave approximately
450,000 responsive documents. The served lists only contained at first 230,000 documents and later 4,163
additional documents in a supplemental list.[108] The claimants had unilaterally decided not to
review 220,000 documents which they said to have been exercised 1 % of by help of TAR. The court found
that the claimants provided a sensible and proportionate method concerning the folders and file
paths.[109] However, the court found that the method concerning the documents could not stand the
test:
First, what they did is not what they said they would do in the EDQ, which promised
a manual review of all documents responsive to the keyword searches. Neither is what they did at all clear
from their Disclosure List. (sec 27)
There is a further point about the number of people involved in the CAR process. The
evidence suggested that there were perhaps ten paralegals and four associates involved in the searches. It
is not apparent that there was any overseeing senior lawyer, and certainly not one undertaking the role
advocated in Pyrrho. So whilst the recommendation
in that case may be regarded as a counsel of perfection, I think that Mr Pepperall is right to say that the
sheer volume of those involved with the CAR system in this case may mean that it has not been
“educated” as well as it might have been, particularly in respect of the criteria for relevance.
(sec 30)
- Based on all circumstances, the court agreed that both the TAR
exercise and the sampling was not transparent and not independently verifiable.[110] Thereafter, the
court concluded that requesting access to the additional 230,000 documents was not unreasonable or
disproportionate. The court ordered that some sort of manual review had to be taken.
- In Canada, a judgment on TAR was taken by the Competition Tribunal
in The Commissioner of Competition v Live Nation Entertainment Inc et al.[111] The commission
asked for further production of documents after the defendant used TAR to locate relevant evidence.
Initially, the document collection was of 2.5 million documents and the counsel reviewed about 8,287
sample documents which were used to train the computer. The parties did not disagree with the use of
TAR, and the tribunal encouraged ‘the use of modern tools to assist in these document-heavy cases
where they are as or more effective and efficient than the usual method of document collection and
review.’[112]
- During the last 15 years, courts from all over the common law world
have accepted and encouraged the use of TAR for e-disclosure or e-discovery. Regardless of the potential
differences between the common law jurisdictions on choices between TAR and manual review, certain
tendencies may be suggested: In general, courts acknowledge the benefits of TAR both for its effectivity
and its ability to single out relevant and non-privileged information and documents. However, the
decision between TAR and manual review must be taken in each case. That decision is always goal-oriented
and pragmatic, which means that the method which optimizes the goals of truth best and efficiency is
preferred. Even though accuracy and efficiency will be key aspects of the court’s decision, the
court normally pays much attention to the parties’ agreements or disagreements. If the parties
agree on using or not using TAR, the court will normally accept that. Furthermore, a prior agreement or
court order should be followed up. If a party unilaterally changes from manual review to TAR, or the
other way around, the court is very reluctant to accept that if the change is not in line with a
previous agreement or a court order. However, the requested party has discretion concerning the choice
methodology which prevails unless otherwise is agreed between the parties or follows from a court order.
While the court has competence to order the choice of review methodology, at least so far, the courts
have been reluctant to use that competence.[113] Both in its decision on whether to apply TAR
and the details, the court assumes and expects the parties to cooperate. The court also expects the
review to become transparent. The application of TAR is far from flawless, and sanctions should be
invoked if a party does not disclose all relevant and non-privileged documents.[114]
4.3.3 TAR Outside the Common Law Jurisdictions?
- While TAR has become crucial for e-discovery and e-disclosure
processes in common law jurisdictions, it is uncertain whether or to what extent TAR, a similar use of
machine learning or another AI technique, could be applied in jurisdictions outside the common law
family. Even though the legal framework of discovery or disclosure is more or less exclusive for the
common law countries, problems of information overload caused by massive amounts of electronic documents
are not unique for common law jurisdictions. One should expect that similar factual or evidential
problems arise. On the contrary, one should assume that information overload is an inherent element of a
global digital revolution and thereby relevant in all jurisdictions of the 21st century. One should also assume that machine learning and
other forms of AI are flexible and capable of being adjusted to most procedural traditions.
- However, TAR is applicable or even relevant only within legal
systems which provide parties with a right to access evidence in possession of the opposite party or a
third party. Systems of evidence law for civil cases may vary radically between legal
families,[115] and problems concerning access to evidence are an element of evidence law where the
differences are surprisingly massive. Even though most jurisdictions acknowledge the advantages of
having better access to evidence, the attitudes towards disbalances of access between parties vary
extremely from one jurisdiction to another.[116] While rules on discovery and disclosure in
common law jurisdictions oblige parties to give opposite parties pre-trial access to all relevant
evidence, no clear parallel exists in for instance German law.[117] Although these matters are disputed, the
prevailing German view is that a general procedural duty to disclose evidence does not exist.[118] A duty to disclose
evidence may be based on substantive law, but in practice that will be of any help only if the specific
parties have contractually agreed on an access to information clause. The GCCP, especially §§
142-144, contains some provisions after which a party may be obliged to disclose evidence, but only if
the opposite party have identified the evidence and requested a court order on access to that particular
piece of evidence. German law entails certain potential functional equivalents which to some degree
reduce or compensate for imbalances in procedural power caused by non-equal access to
evidence,[119] but these mechanisms are less formal, less developed, and more indirect effects of
general procedural principles than rules on access to evidence per se. A kind of cliché view on
the systems for production of evidence, is to describe the common law approach as ask your opponent to
bring forward the evidence, and a civil law approach as do it yourself (perhaps with a little help from
your judge).[120]
- Despite the extremely different attitudes taken within different
legal families to the problem of access to evidence, some international legal instruments contain
mechanisms sharing important features with Anglo-American discovery or disclosure. Probably, the TRIPS
Agreement from 1994[121] is the best example of a global agreement containing a far-reaching obligation to
disclose evidence. Article 43 is a good example:
1. The judicial authorities shall have the authority, where a party has presented
reasonably available evidence sufficient to support its claims and has specified evidence relevant to
substantiation of its claims which lies in the control of the opposing party, to order that this evidence be
produced by the opposing party, subject in appropriate cases to conditions which ensure the protection of
confidential information.
2. In cases in which a party to a proceeding voluntarily and without good reason
refuses access to, or otherwise does not provide necessary information within a reasonable period, or
significantly impedes a procedure relating to an enforcement action, a Member may accord judicial
authorities the authority to make preliminary and final determinations, affirmative or negative, on the
basis of the information presented to them, including the complaint or the allegation presented by the party
adversely affected by the denial of access to information, subject to providing the parties an opportunity
to be heard on the allegations or evidence.
- Further similarities with discovery and disclosure are found in Art
47 declaring that members ‘may’ provide that judicial authorities shall have the power to
‘order the infringer to inform the right holder of the identity of
third persons involved in the production and distribution of the infringing goods or services and of
their channels of distribution.’ Still, the provision most similar to discovery or disclosure is
Art 50:
1. The judicial authorities shall have the authority to order prompt and effective
provisional measures:
to prevent an infringement of any intellectual property right from occurring, and in
particular to prevent the entry into the channels of commerce in their jurisdiction of goods, including
imported goods immediately after customs clearance;
(b) to preserve relevant evidence in regard to the alleged infringement.
2. The judicial authorities shall have the authority to adopt provisional
measures inaudita altera parte where
appropriate, in particular where any delay is likely to cause irreparable harm to the right holder, or where
there is a demonstrable risk of evidence being destroyed.
3. The judicial authorities shall have the authority to require the applicant to
provide any reasonably available evidence in order to satisfy themselves with a sufficient degree of
certainty that the applicant is the right holder and that the applicant's right is being infringed or
that such infringement is imminent, and to order the applicant to provide a security or equivalent assurance
sufficient to protect the defendant and to prevent abuse.
- While TRIPS have been criticized for being too heavy influenced by
US law,[122] the contracting states are of course obliged to introduce such access to evidence for
the substantive rights covered by the agreement. Within the branch of substantive law covered by TRIPS,
the EU requires member states to incorporate general rules on access to evidence in accordance with the
TRIPS Agreement.[123] These requirements are of course followed up by the EU member states.[124] Since TRIPS is a
global agreement signed by 164 states world-wide, most probably technological methods such as TAR are at
least relevant in all those states.
- Although not at all mirroring neither US discovery nor English
disclosure, both ALI/UNIDROIT Principles and ERCP provide the ground for access to evidence orders
inspired by Anglo-American law. Both these soft law schemes in general oblige a party to disclose
evidence which are relevant and non-privileged.[125] Most detailed are ERCP, which in Rules
101-102 set up a general right to access evidence and a set of criteria which a request must fulfil
before the court may order disclosure of evidence. While ERCP have a rather broad scope of application,
they are of course not binding although they express what the project members regarded as international
best practice.[126] Still, whenever these rules are voluntarily prescribed either by the EU or a national
legislator, challenges similar to Anglo-American discovery or disclosure will arise and so will
technological solutions for situations of information overload.
- At a national level, several jurisdictions contain mechanisms
similar to discovery or disclosure. In Norway, for example, several sets of rules provide a right to
access evidence in possession of the opposite party or a non-party. Prior to commencement, any possible
future party may claim access to evidence in possession of a possible future party or any non-party, see
NCCP § 28-2:
Evidence may be secured if it can be of significance in a dispute to which the
applicant may become a party or intervener, and there is either a clear risk that the evidence will be lost
or considerably weakened, or there are other reasons why it is particularly important to obtain access to
the evidence before legal proceedings are instigated.
- These rules were inspired by TRIPS Art 50 and were to some degree
established in order to fulfil the obligations under that treaty. However, as the legislator decided to
generalize these rules they apply to all civil cases and not only to infringements of intellectual
property rights. Post commencement, any party have a right to access any admissible and tangible
evidence which are relevant, sufficiently defined, and proportional.[127] Both sets of rules apply to
digitally stored information.[128] Neither of these set of rules mirrors US
discovery or English disclosure, but basic similarities are in place and court practice underline the
practical challenges of providing access to masses of digitally stored information.[129] In practice,
challenges similar to those reported from Anglo-American discovery or disclosure are seen in Norwegian
courts. Well-known difficulties are whether orders for access to massive amounts of information may be
proportionately expensive compared to the substantive issues at stake, how access to evidence orders
shall be technically and practically enforced, how secured evidence is to be handled, and so
on.[130]
- Other European countries, such as the other
Scandinavian countries, the Netherlands, and Belgium contain rules similar to these Norwegian rules and
also for civil cases which are outside the scope of application of the TRIPS Agreement. Probably, even
in these countries the rules on access to evidence open for situations of information overload and
problems which may be solved by TAR or similar technological innovations. Such techniques may become
even more relevant in Europe in the near future. That is due to the ongoing digital revolution, but also
to suggested new EU law concerning liability for AI.[131] The European Commission's proposed
directive for non-contractual liability for AI contains a rather general and broad obligation to
disclose evidence, see Art 3.1:
Member States shall ensure that national courts are empowered, either upon the
request of a potential claimant who has previously asked a provider, a person subject to the obligations of
a provider pursuant to [Article 24 or Article 28(1) of the AI Act] or a user to disclose relevant evidence
at its disposal about a specific high-risk AI system that is suspected of having caused damage, but was
refused, or a claimant, to order the disclosure of such evidence from those persons.
In support of that request, the potential claimant must present facts and evidence
sufficient to support the plausibility of a claim for damages.
- The obligation to disclose information is limited to what is
necessary and proportionate. When regarding those criteria, the court shall take into account the need
to protect trade secrets and other confidential information.[132] If the proposed legislation is enacted, most
probably massive amounts of information shall be disclosed, and TAR may obviously become a relevant
method. Perhaps not as surprising as it may sound, AI based techniques will be applied in order to find
out whether someone is liable for damage caused by AI.
4.4 Informal Methods of E-Evidence-Gathering (Self-Help)
- The digital revolution prepared the ground for a rich variety of
new non-formal methods of evidence-gathering. One such technique is the every-day possibility of
recording or filming; a dash-cam could in
detail prove the course of events leading to an accident, a film taken from a drone may in detail prove
how a landscape changed after illegal pollution by a local manufacturer, an audio recording taken by an
iPhone may in detail prove the promises made by a seller. In sharp contrast to the state of affairs
25-30 years ago, nowadays internet searches are commonly used for evidence-gathering in all sorts of
litigation world-vide. A party may search for general information on his opponent, a tortfeasor who
allegedly suffered damage from a product malfunction may look for information on the construction of
products or the advertisement for it, an insurance company which suspects that a customer did start fire
on his own property may search online for information on what that person did on a particular time, a
party claiming damages from a municipality for irregular entering a contract to one of his competitors
may search for information on Facebook or LinkedIn to show that a key person in the municipality was a
personal friend of the director or the main owner of the competitor, or a party may search on such cites
in order to show that a witness person’s social network (who knows who etc) for instance by using
for use in an argumentation for declining the unwillingness of a witness.
- These mechanisms are more or less globally relevant. Unless a
jurisdiction should take the implausible position of denying internet searches or films as a mean for
access to information in general or for all legal proceedings, such evidence-gathering mechanisms will
be effective no matter whether a jurisdiction have formal rules on access to evidence and irrespective
of very many other peculiarities of the jurisdiction’s procedural law. One may assume these
informal mechanisms to be of greater significance in jurisdictions which do not have formal access to
evidence mechanisms comparable to Anglo-American discovery or disclosure. However, such informal
mechanisms are undoubtedly of significance in common law jurisdictions as well. Larger US law firms have
for many years developed tactics for investigation of social media, it is standard practice for
attorneys to scan such media and the question of involving external expertise has been
raised.[133]
- These informal mechanisms are examples of procedural self-help,
which in most parts of the world are in accordance with basic features and ideals of party control of
evidence gathering and which formal access to evidence rules may be regarded as limitations of. An
obvious advantage of self-help mechanisms is that a party gets access to evidence without having to
provide any form of legal basis for doing so, without having to involve a judge for giving a court
order, and without having to involve the opposite party. However, a party may very well need help from
experts or others in order to provide effective internet searches. Just as the practical and technical
possibilities for gathering online available evidence multiplied by the digital revolution, the
practical and technical difficulties connected to such gathering are also of a rich and varied nature.
In some cases, a party may seek evidence on the entire world wide web, in other cases the access to
specific information on a private space (clouds, smartphones, etc) is the troubling matter. Litigation
may also directly or indirectly be prompted by searching activities from professional organization. A
prominent example is the Human Rights Data Analysis Group (HRDAG),[134] which by combining
statistical methods and internet searches have revealed massive violations of human rights in countries
like the US and Mexico. Although HRDAG are not lawyers or advocates, their findings may very well
support a civil lawsuit brought by victims of human rights against institutions which have been revealed
as violators of such rights.
- While these informal mechanisms may have the effect of better
quality and quantity of the evidence for a less amount of time and money, they also come with a
potentially high legal and societal cost. Even though the main rule in most jurisdictions is that
internet searches, at least for publicly available information, are free and lawful, such activities may
nevertheless be highly troublesome. Attached to the online society is a real risk of a privatized
‘big brother society’ and a real risk of getting non-official private investigators,
detectives, or sheriffs more or less out of control. In most jurisdictions, the freedom of internet
searches or other non-formal mechanisms for investigative purposes may be legally regulated by several
branches of law, such as criminal law, administrative law, intellectual property law, and the recently
emerged field of data protection law. Within the branch of evidence law, the freedom of internet
searches could become limited by inadmissibility rules, and at least two fundamental legal issues may be
called upon to restrict the possibilities of private, informal evidence-gathering:
- Firstly, such forms of evidence gathering may violate a
right to privacy. Procedural law of all European
countries must be kept within ECHR Art 8, and EU member states must also keep within the EU Charter of
Fundamental Rights Art 7 and 8 on the protection of personal data which has been followed up by the
GDPR. In Europe, many restrictions on gathering, storing, and use of personal data have been developed
in a combination of human rights law, detailed provisions, and case law both from European and national
courts. Although the protection of privacy has a general scope which does not primarily or exclusively
relate to gathering of evidence for use in litigation, the limitations on gathering of information will
also limit a (future) party’s freedom to gather evidence. Many examples of modern (European)
procedural law could be worth mentioning here, such as the German case where the BGH admitted evidence
from a dash cam.[135]
- Secondly, informal evidence-gathering may raise the question of
illegally obtained evidence. Evidence obtained by illegal hacking, surveillance, or filming is just
three of very many examples which raise the question of whether such evidence shall be inadmissible
because of its illegal emergence or admissible despite its illegal emergence. In deciding whether to
admit illegally obtained evidence a balance must be struck between truth-seeking and fair play and
involved in that balance is both a perspective on the concrete, pending case and the general, societal
perspective concerning prevention of similar unlawful evidence-gathering in the future. That balance,
however, is not at all uniformly taken in all jurisdictions.[136] Within Europe, a tendency in several
jurisdictions is that the fair play argument has been gradually more important over time.[137] That tendency has
been influenced by ECtHR both by requirements set up by the court itself and by further prompted in
national law.[138] While not disregarding the differences between European jurisdictions of the matter,
ERCP Rule 90 establishes a main rule saying that illegally obtained evidence must be excluded. However,
the rule opens up for exceptions if illegally obtained evidence ‘is the only way to establish the
facts’ and it is for each jurisdiction to decide whether a concrete gathering of evidence is
lawful or not.
- The right to privacy and the problem of illegally obtained evidence
are, of course, intertwined for instance because violation of a right to privacy is one of the reasons
why evidence may become illegally obtained. Furthermore, both the right to privacy and rules to avoid
illegally obtained evidence have seen a growing significance during the last two or three decades. Since
the digital revolution has taken place during the same decades, one may wonder whether that revolution
caused the (further) developments of these legal doctrines. Obviously, the development of for instance
GDPR was a reaction to the digital revolution and the use and misuse of the massive opportunities of
data management provided by IT. Probably, the growing de facto importance of a right to privacy has
correlated to the new technical opportunities for violating that right. Arguably, the new technologies
have also made the need to protect privacy more urgent also in core civil cases between private parties.
While the pre-digital problems of illegal surveillance first and foremost were characteristic for
state-activities especially within totalitarian states, new opportunities for gathering and collection
of personal information caused by modern technology are typically made use of by massive global
companies. However, the developments of these legal doctrines are of course not fully explained by the
digital revolution. The right to privacy protects many other segments than collection of digital
information and also non-digital evidence could of course be the result of illegal activities. Seen from
a more general procedural perspective, the limitations on evidence gathering caused by the growing
emergence of privacy and protection of fair play does also belong to a broader tendency of more
rights-based foundationalism of modern procedural law.
Abbreviations and Acronyms
ALI
|
American Law Institute
|
Art
|
Article/Articles
|
BGH
|
Bundesgerichtshof (Federal Court of Justice)
[Germany]
|
BGHZ
|
Decisions by the Bundesgerichtshof
|
CAR
|
Computer-Assisted Review
|
CEA
|
Canadian Evidence Act
|
cf
|
confer (compare)
|
ch
|
chapter
|
CJEU
|
Court of Justice of the European Union
|
ECLI
|
European Case Law Identifier
|
ECHR
|
European Convention on Human Rights
|
ECtHR
|
European Court of Human Rights
|
ed
|
editor/editors
|
edn
|
edition/editions
|
eg
|
exempli gratia (for example)
|
ELI
|
European Law Institute
|
ERCP
|
ELI/UNIDROIT Model European Rules of Civil Procedure
|
et al
|
and others
|
etc
|
et cetera
|
EU
|
European Union
|
EUR
|
Euro
|
EWCRP
|
English and Welch Civil Procedure Rules
|
EWHC
|
High Court of England and Wales
|
f ex
|
for example
|
ff
|
following
|
fn
|
footnote (external, ie, in other chapters or in citations)
|
FRD
|
Federal Rules Decisions (US)
|
F Supp
|
Federal Supplement (US)
|
GCCP
|
Code of Civil Procedure (Germany)
|
GDPR
|
General Data Protection Regulation (EU)
|
HRDAG
|
Human Rights Data Analysis Group
|
ICT
|
Information and Communication Technologies
|
ie
|
id est (that is)
|
IEHC
|
High Court of Ireland
|
n
|
footnote (internal, ie, within the same chapter)
|
NCCP
|
Norwegian Code of Civil Procedure
|
NJA
|
Nytt Juridisk Arkiv (Swedish Supreme court practice)
|
NJW
|
Neue Juristische Wochenschrift
|
no
|
number/numbers
|
NOU
|
Norges Offentlige Utredninger
|
para
|
paragraph/paragraphs
|
PD
|
Practice Direction
|
pt
|
part
|
QBD
|
Queen’s Bench Division
|
QAELFIT
|
Act to Establish a Legal Framework for Information Technology
(Quebec)
|
RSC Order
|
Rules of the Supreme Court (UK)
|
Rt
|
Norsk Retstidende (Norwegian Supreme Court decisions)
|
SCC
|
Supreme Court Canada
|
SPCCP
|
Spanish Code of Civil Procedure
|
SWCP
|
Swedish Code of Procedure
|
Sec
|
Section/Sections
|
supp
|
supplement/supplements
|
TAR
|
Technology-assisted review
|
trans/tr
|
translated, translation/translator
|
TRIPS
|
Agreement on Trade-Related Aspects of Intellectual Property
Rights
|
UK
|
United Kingdom
|
UNCITRAL
|
United Nations Commission on International Trade Law
|
UNCITRAL MLEC
|
UNCITRAL Model Law on Electronic Commerce
|
UNIDROIT
|
Institut international pour l'unification du droit
privé (International Institute for the Unification of
Private Law)
|
UP
|
University Press
|
US / USA
|
United States of America
|
USD
|
United States Dollar
|
USFRCP
|
Federal Rules of Civil Procedure (US)
|
USFRE
|
Federal Rules of Evidence (US)
|
v
|
versus
|
vol
|
volume/volumes
|
WL
|
WestLaw (US)
|
***
|
***
|
Legislation
International/Supranational
European Convention on Human Rights 1950 (Council of Europe)
Charter of Fundamental Rights of the European Union 326/2012, of 26 October 2012
(EU)
Regulation on the protection of natural persons with regard to the processing of
personal data and on the free movement of such data (General Data Protection Regulation), 679/2016 of 27
April 2016 (EU)
Directive on the enforcement of intellectual property rights, 2004/48/EC of 29 April
2004 (EU).
Proposal for a Directive of the European Parliament and of the Council on adapting
non-contractual civil liability rules to artificial intelligence (AI Liability Directive), COM(2022) 496
(EU)
Agreement on Trade-Related Aspects of Intellectual Property Rights, 15 April 1994
(World Trade Organization).
Model Law on Electronic Commerce 1996 (UNCITRAL)
Principles of Transnational Civil Procedure 2004 (ALI/UNIDROIT)
Model European Rules of Civil Procedure 2020 (ERCP)
National
Act to Establish a Legal Framework for Information Technology, C-1.1 2001/32
(Quebec/Canada)
Canada Evidence Act, R.S.C. 1985 c. C-5, (Canada)
Civil Procedure Rules of England and Wales 1998 (England and Wales)
English and Welch Practice Direction 31B – Disclosure of Electronic Documents, see
https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part31/pd_part31b
Gesetz über Rahmenbedingungen für elektronische Signaturen (Signaturgesetz), Act of
1st July 2016 (Germany)
Gesetz über Urheberrecht und verwandte Schutzrechte (Urheberrechtsgesetz), Act 9
September 1965 (Germany)
Gesetz über den Schutz von Marken und sonstigen Kennzeichnen (Markengesetz), Act
25 October 1994 (Germany)
Gesetz über den rechtlichen Schutz von Design (Designgesetz), Act of 12 March
2004
Ley de Enjuiciamiento Civil (Code of Civil Procedure), Law 1/2000 of 7 January
(Spain)
Lov om mekling og rettergang i sivile tvister (tvisteloven) (Code of Civil
Procedure), 17 June 2005 no 90 (Norway)
Lov om Rettergangsmåten for tvistemål (tvistemålsloven), 13 August
1915 no 6 repealed from 2008, (Norway)
Patentgesetz, Act 5 May 1935 (Germany)
Rättegångsbalken (Code of Procedure), Act no 740 of 18 July 1942 (Sweden)
Sedona Canada Principles Addressing Electronic Discovery, (2022) 23 The Sedona Conference
Journal 160–329, available at The
Sedona Conference® .
United States Federal Rules of Evidence, 20 November 1972 (US)
United States Federal Rules of Civil Procedure, 20 December 1937 (US)
Zivilprozessordnung (Code of Civil Procedure), of 30 January 1877 (Germany)
Cases
National
Case VI ZR 233/17 (BGH, Germany) Judgment 15 May 2018
[ECLI:DE:BGH:2018:150518UVIZR233.17.0] [NJW 2018, 2883].
Bridgestone America’s Inc v International Business Machines Corp (United States District Court Middle District of Tennessee Nashville Division) Decision 22
July 2014, 2014 WL 4923014, 172 F Supp (3d) 1007.
The Commissioner of Competition v Live
Nation Entertainment Inc et al (Canada’s Competition Tribunal) Decision
1 October 2018, [2018] CACT 17.
Da Silva Moore and others v Publicis Groupe (US District Court
Southern District of New York) Order 24 February 2012,
287 FRD 182 S.D.N.Y. 2012.
Da Silva Moore and others v Publicis Groupe [Appeal] (US District Court
Southern District of New York) Opinion and Order on 25
April 2012, No 11 Civ. 1279 (ALC) (AJP).
Irish Bank Resolution Corp lmt and others v Sean Quinn & Others (High Court of Ireland) Judgment 3 March 2015, [2015] IEHC 175.
Jennifer Livingston et al v The City of Chicago (US District Court
Northern District of Illinois) Opinion 3 September 2020, 16 CV 10156.
Pauline Hyles v New York City et al. (US District Court Southern
District of New York) Opinion 1 August 2016, 10 Civ. 3119 (AT)(AJP).
Progressive Casualty Insurance Company v Jackie Delaney (US District Court District of Nevada) Opinion and
Order 13 November 2014, WL 12785311 (WL US D Nev Dist Ct
2014).
Pyrrho Investments lmt v MWB
Property (the High Court of Justice, UK) Judgment 16 February 2016, [2016] EWHC 256
(Ch).
Triumph Controls UK lmt v Primus International (Technology and Construction Court, UK) Judgment 7 February 2018, [2018] EWHC 176
(TCC).
Imerman v Tchenguiz and others (The Court of Appeal, UK)
Judgment 10 May 2010, [2010] EWCA Civ. 908.
R. G. AB v Securitas Teknik AB (Supreme Court of Sweden)
Decision 17 December 1998, [NJA 1998, 829].
Idre Fjällrestauranger v Stiftelsen Idre Fjäll (Supreme Court, Sweden) Decision 2 April 2020 [NJA 2020, 373].
Felleskjøpet Agri SA (Counsel Fredrik Lilleaas Ellingsen) v. Infor
(Steinhausen) II GmbH (Counsel Ola Haugen), No 18-186326SIV-HRET (Supreme Court,
Norway) Order 27 May 2019, HR-2019-997-A.
Normarc, No 2006/90 (Supreme Court, Norway) Decision 23 May
2006 (Rt 2006), HR-2006-00867-A.
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[1] At that time overhauling reforms
took place in at least England and Wales, Germany, Austria, and the Scandinavian countries.
[2] G Vos and J Sorabji, ‘Digital
Technology and the Development of Holistic Dispute Resolution’ in X Kramer et al (ed),
Delivering Justice. A Holistic and Multidisciplinary Approach. Liber Amoricum in
Honour of Christopher Hodges (Hart Publishing 2022) 247.
[3] J Sorabji, English Civil Justice after the Woolf and Jackson Reforms. A Critical
Analysis (Cambridge UP 2014) 31 ff.
[4] M R Damaska, The Faces of Justice and State Authority. A Comparative Approach to the Legal
Process (Yale UP 1986).
[5] In common law jurisdictions this is
found for instance in the widely held ‘rationalist tradition of evidence scholarship’, see W
Twining, Rethinking Evidence. Exploratory Essays (2nd edn, Cambridge UP 2006) 35 ff. For a European perspective: C H van Rhee and A Uzelac,
‘The Pursuit of Truth in Contemporary Civil Procedure: Revival of Accuracy or a New Balance in
Favour of Effectiveness?’ in C H van Rhee and A Uzelac (ed), Truth and Efficiency in Civil Litigation (Intersentia
2012) 3, 3. On the Scandinavian tradition: P Westberg, Anskaffning av
bevisning i dispositiva tvistemål (Nordstedts Juridik 2010)
10–13.
[6] This does, of course, not mean that
there is one globally acknowledged systematization of evidence law, it only means that certain
categories of evidence rules exist and may play the role as an analytical tool for a comparison or a
singling out of legal developments.
[7] F ex J H Langbein, Torture and the Law of Proof. Europe and England in the Ancient Régime (The University of Chicago Press 1976/2006); J Q Whitman, The Origins of Reasonable Doubt. Theleological Roots of the Criminal Trial (Yale UP 2008); G Deppenkemper, Beweiswürdigung als
Mittel prozessualer Wahrheitserkenntnis. Eine dogmengeschichtliche Studie zu Freiheit, Grenzen und
revitionsgerichtlicher Kontrolle tatrichterlicher Überzeugungsbildung (§ 261 StPO, § 286
ZPO) (V&R Press 2004) 19–224; H Pihlajamäki, Evidence, crime and the legal profession: the emergence of free evaluation of evidence in
the Finnish nineteenth-century criminal procedure (Lund 1997).
[8] Versions of such principles existed
in Roman law, see f ex J Sladic and A Uzelac, ‘Assessment of evidence’ in V Rijaved, T
Kerestes and T Ivanc (ed), Dimensions of European Civil
Procedure (Wolters Kluwer 2016) 107, 108.
[9] On the Germanic countries:
Deppenkemper (n 7) 225 ff. On the Scandinavian countries (especially Finland): Pihlajamäki (n 7).
On the common law history where free proof during the 1800s took over from technical and detailed rules
of the writ system: W Twining, Theories of Evidence: Bentham and
Wigmore (Stanford UP 1985).
[10] See f ex ERCP Rules 89(1) and
92(1), and USFRE Rule 402.
[11] See f ex ERCP Rule 91 and USFRE
Rules 501 and 502.
[12] See f ex ERCP Rule 87.
[13] See section 1 above.
[14] F ex ERCP Rules 111 ff, GCCP
§§ 371 ff, EWCRP Part 32, USFRE Articles V-VIII, NCCP ch 23-26.
[15] H Woolf, Access to Justice: Interim Report to the Lord Chancellor on the Civil Justice System in
England and Wales (HMSO 1995), H Woolf, Access
to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and
Wales (HMSO 1996). See also A A S Zuckerman and R Cranston (ed),
Reform of Civil Procedure (Oxford UP 1995), Sorabji
(n 3).
[16] F ex USFRCP Rule 26 (b) (1) after
amendment of 2015, NCCP § 1-1 and § 21-8 both from a reform of 2005.
[18] F ex A Stein, Foundations of Evidence Law (Oxford UP 2005) 12–25,
214–219.
[19] See section 4 below.
[20] F ex the UNCITRAL MLEC (1996) Sec
15-18 and ERCP Sec VIII1.
[21] NOU 2001: 32 Rett på sak, 619. See H H Fredriksen and M Strandberg,
‘Is E-justice Reform of Norwegian Civil Procedure Finally Happening?’ (2016) 3(2) Oslo Law
Review 72, 73–74.
[22] On the distinction between
Urkunde and Augenscheinsbeweis: H J Ahrens, Der
Beweis im Zivilprozess (Otto Schmidt Verlag 2015) 561,
562–563.
[23] Case VI ZR 233/17 (BGH, Germany)
Judgment 15 May 2018 [ECLI:DE:BGH:2018:150518UVIZR233.17.0] [NJW 2018, 2883]. Further reading: H J
Ahrens, ‘Dash-cam-Aufzeichnungen als Beweismittel nach Verkehrsunfällen’ (2018) 39 NJW,
2837; W Lüke, Zivilprozessrecht I (11th
edn, C H Beck 2020) 296.
[24] F ex P P Wagner, ‘Das
elektronische Dokument im Zivilprozess’ (2016) 50 Juristische Schulung 29–33; Lüke (n
23) 296–297.
[25] QAELFIT Ch 1, sec 3.
[27] T Ivanc, ‘Theoretical
Background of Using Information Technology’ in V Rijavec, T Kerestes and T Ivanc (ed),
Dimensions of Evidence in European Civil Procedure (Wolters Kluwer 2016) 265, 281.
[28] S Mason,
‘Introduction’ in S Mason (ed), International Electronic
Evidence (British Institute of International and Comparative Law, London
2008) xxxiv.
[29] Similar problems are found in
Austria, Croatia, Poland, Finland, Romania, Estonia, and Slovenia, see Ivanc (n 27)
286–287.
[31] P O Ekelöf, H Edelstam and L
Heuman, Rättegång IV (7th edn,
Norstedts Juridik 2009) 255 and P Westberg, Civilrättskipning, (2nd edn, Norstedt Juridik 2013)
292–293.
[33] NJA 2020, 373 Sec 17.
[34] NJA 2020, 373 Sec 22.
[35] A similar distinction is
well-established outside the English-speaking countries: In German Integrität and Authentizität, in Norwegian integritet and autentisitet. Compare S Mason and A Stanfield,
‘Authenticating electronic evidence’ in S Mason and Seng (ed), Electronic Evidence (4th edn, Institute of Advanced Legal
Studies 2017) 195.
[37] I Dennis, The Law of Evidence (6th edn, Sweet & Maxwell 2017) 12
who does use the term ‘collateral’ for evidence concerning the credibility of
witnesses.
[38] See f ex Mason and Stanfield (n
35) 231 ff.
[39] See f ex Normarc, No 2006/90 (Supreme Court, Norway) Decision 23 May 2006
(Rt 2006), HR-2006-00867-A, 626 concerning mirror-copying of servers and hard disks in a case where
former employees allegedly copied files from the company for starting of a competing business. After
such mirror-copying, the HASH-value technique could reveal whether the files in obsession of the former
employees had been illegally copied. The case is in detail analyzed by M A Hjort, Tilgang til bevis i sivile saker (Universitetsforlaget 2016)
271, 307.
[40] ERCP official comment to Rule 111
(4).
[41] E Silvestri, ‘The Antique
Shop of Italian Civil Procedure: Oath and Confession as Evidence’ in C H Rhee A Uzelac (ed),
Truth and Efficiency in Civil Litigation (Intersentia 2012) 47. Interestingly, this is so for French law as well, see E Jeuland,
‘The Standard of Proof in France’ in L Tichý (ed), Standard of Proof in Europe (Mohr Siebeck 2019) 183,
184–187.
[43] See f ex CEA Rule 31.
[44] QAELFIT Rule 5 Sec 3.
[45] T Schei et al, Tvisteloven kommentarutgave (2nd edn, Universitetsforlaget
2013) 945 (Norwegian); B Gomard and M Kistrup, Civilprocessen (7th edn, Karnov Group 2013) 706–707 (Danish); Ekelöf. Edelstam and Heuman (n 31) 257 (Swedish).
[46] F ex Hjort (n 39)
34–35.
[47] Gomard and Kistrup (n 45) 706; P
O Ekelöf and R Boman, Rättegång IV (6th edn, Norstedt Juridik 1992) 214.
[48] NCCP §§ 24-4 (1) and
23-2 (2).
[49] Schei et al (n 45) 945.
[50] M Strandberg, ‘Standards of
Evidence in Scandinavia’ in L Tichy (ed), Standard of Proof in
Europe (Mohr Siebeck 2019) 135, 139.
[52] SWCP 38:1 (1), NCCP § 21-7
(2) c.
[53] Ivanc (n 27) 286 and Mason and
Stanfield (n 35) 229.
[54] Compagnie Fincanciere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD. 55.
[55] A Zuckerman, Zuckerman on Civil Procedure. Principles and Practice (2nd
edn, Thomson 2003) 539.
[56] A little confusion is still in
place since ‘disclosure’ is used in US for the initial part of discovery, see USFRCP Rule
26.
[57] G C Hazard, ʻFrom Whom No
Secrets Are Hidʼ (1998) 76 Texas Law Review 1665, 1694; S N Subrin,
ʻFishing Expeditions Allowed: The Historical Background of the 1938 Federal
Discovery Rules’ (1998) 39 Boston College
Law Review 691; J H Langbein, ʻThe Demise of Trial in American Civil Procedure: How It Happened, Is
It Convergent with European Civil Procedure?ʼ in R H Rhee and A Uzelac (ed), Truth and Efficiency in Civil Litigation. Fundamental Aspects of Fact-finding and Evidence-taking in a Comparative
Context (Intersentia 2012) 119; R Marcus, ʻLooking Backward to
1938ʼ (2014) 162 University of Pennsylvania Law Review 1691, 1693–1695. The rules apply to
Federal courts only, but most American states have emulated them.
[58] G C Hazard, ʻDiscovery and
the Role of the Judge in Civil Law Jurisdictionsʼ (1998) 73 Notre Dame Law Review 1017, 1019; R L
Marcus, ʻCooperation and Litigation: Thoughts on the American Experienceʼ (2013) 65 Kansas Law
Review 821, 841–843; S Dodson, ʻCooperativism in the American Adversarial Traditionʼ
(2021) 40 Civil Justice Quarterly 283.
[59] Subrin (n 57)
739–740.
[60] M Rosenberg, ʻFederal Rules of Civil Procedure in Action: Assessing Their Impactʼ (1989) 137 U. Pa. Law Review 2197, 2198.
[61] See R L Marcus, M H Redish, E F
Sherman and J E Pfander, Civil Procedure A Modern Approach (7th edn, West Publishing 2018) 369.
[62] F ex USFRCP Rule
34(b)(2)(D).
[64] See S Clark and R Jackson,
The Reform of Civil Justice (2nd edn, Sweet and
Maxwell 2018) 11–20, Sorabji (n 3).
[65] R Jackson, Review of Civil
Litigation Costs: Final Report (The Stationery Office 2009) 365.
[67] EWCPR Rule 31.4 and PD 31.1 and
31.5.
[71] ‘The Sedona Canada
Principles Addressing Electronic Discovery’ (2022) 23 The Sedona Conference Journal
160–329.
[72] Sedona Principles 1, 2 and 4 (n
71).
[73] Sedona Principle 2 (n 71).
[74] Sedona Principle 2 comments at
182 (n 71).
[75] Sedona Principle 3 (n 71).
[76] Sedona Principle 4 comments at
219–220 (n 71).
[78] M R Grossman and G V Cormack,
ʻTechnology-Assisted Review in E-Discovery Can Be More Effective and More Efficient Than Exhaustive
Manual Reviewʼ (2011) 2(3) Richmond Journal of Law and Technology 1, 4.
[79] Ibid 1–48, G Christian,
ʻPredictive Coding: Adopting and Adapting Artificial Intelligence in Civil Litigationʼ (2019)
97 The Canadian Bar Review 486.
[80] Triumph Controls UK lmt v Primus International (Technology
and Construction Court, UK) Judgment 7 February 2018, [2018] EWHC 176 (TCC) Sec 6.
[81] See also J Sorabji,
ʻCompliance Problems and Digitizing Case Management in England and Walesʼ in R Assy and A
Higgins (ed), Principles, Procedure, and Justice. Essays in Honour of Adrian
Zuckerman (Oxford UP 2020) 153, 174.
[82] Grossman and Cormack (n 78)
3-4.
[83] Christian (n 79) 492.
[84] Christian (n 79) 497.
[85] Christian (n 79) 494.
[86] Christian (n 79)
494–495.
[87] Grossman and Cormack (n 78) 48
and H L Roitblat et al, ʻDocument Categorization in Legal Electronic Discovery: Computer
Classification vs. Manual Reviewʼ (2010) 61(1) Journal of American Society Information Science
& Tech 70.
[88] F ex Marcus et al (n 61) 370
[89] Sedona Principles (n 71)
247–248.
[91] Da
Silva Moore and others v Publicis Groupe (US District Court Southern
District of New York) 287 FRD 182 (2012), 868 F Supp 2d 137.
[92] The judge was Andrew Peck, author
of ʻSearch Forward: Will Manual Document Review and Keyword Searches be Replaced by Computer
Assisted Coding?ʼ (2011) New Jersey Law Journal.
[93] Da
Silva Moore and others v Publicis Groupe (US District Court Southern
District of New York) Opinion and Order on 25
April 2012, No 11 Civ. 1279 (ALC) (AJP).
[94] Progressive Casualty Insurance Company v Jackie Delaney (US District Court District of Nevada) Opinion and Order 13 November 2014, WL
12785311 (WL US D Nev Dist Ct 2014).
[95] Christian (n 79) 502.
[96] Progressive Casualty Insurance Company v Jackie Delaney (n 94) Sec 13.
[97] Bridgestone America’s Inc v International Business Machines Corp (United States District Court Middle District of Tennessee Nashville Division) Decision
22 July 2014, 2014 WL 4923014, 172 F Supp (3d) 1007.
[98] Pauline Hyles v New York City et al. (US District Court Southern
District of New York) Opinion 1 August 2016, 10 Civ. 3119 (AT)(AJP).
[99] Jennifer Livingston et al v The City of Chicago (US District
Court Northern District of Illinois) Opinion 3 September 2020, 16 CV 10156.
[100] Irish Bank Resolution Corp lmt and others v Sean Quinn & Others (High Court of Ireland) Judgment 3 March 2015, [2015] IEHC 175.
[104] Pyrrho Investments lmt v MWB
Property (the High Court of Justice, UK) Judgment 16 February 2016,
[2016] EWHC 256 (Ch).
[105] It is worth noting that the
High Court considered the guidelines given by Matthews as useful, see Triumph Controls UK lmt v Primus International (n 80)
Sec 18.
[106] Pyrrho Investments lmt v MWB
Property (n 104) Sec 33.
[107] Triumph Controls UK lmt v Primus International (n 80) Sec
6-7.
[108] Triumph Controls UK lmt v Primus International (n 80) Sec
8-9.
[109] Triumph Controls UK lmt v Primus International (n 80) Sec
21.
[110] Triumph Controls UK lmt v Primus International (n 80) Sec
31.
[111] The Commissioner of Competition v Live Nation Entertainment Inc et al (Canada’s
Competition Tribunal) Decision 1 October 2018, [2018] CACT 17.
[113] G Streich, ʻCourt
Mandated Technology-Assisted Review in E-Discovery: Changes in Proportionality, Cost-Shifting, and
Spoliationʼ (2021) 90 Fordham Law Review Online 139, 141–142.
[114] D Dowling, ʻTarpits: The
Sticky Consequences of Poorly Implementing Technology-Assisted Reviewʼ (2020) 35 Berkeley
Technology Law Journal 172.
[115] See f ex M R Damaska,
Evidence Law Adrift (Yale UP 1997) and L
Tichý (ed), Standards of Proof in Europe (Mohr Siebeck 2019).
[116] G C Hazard, ʻA
Drafter’s Reflectionsʼ ALI/UNIDROIT Principles of Transnational
Civil Procedure (Cambridge 2006) xlix-l, ELI/UNIDROIT Part VII Introduction
comment 2; R Verkerk, Fact-Finding in Civil Litigation. A Comparative
Perspective (Intersentia 2010); S N Subrin, ʻDiscovery in Global
Perspective: Are we Nuts?ʼ (2002) 52 DePaul Law Review 299.
[117] M Strandberg, ʻAccess to
Evidence in US, Germany, and Norwayʼ in R H Rhee and M Woo (ed), Comparative Civil Procedure (Edward Elgar 2024)
forthcoming.
[118] P Arens, ʻZur
Aufklärungspflicht der nicht beweisbelasteten Partei im Zivilprozeßʼ (1983) 96 Zeitschrift für
Zivilprozeß 1; H Prütting,
Gegenwartsprobleme der Beweislast (G.H. Beck 1983)
33–34, 137 ff.; G Lüke, ʻDer Informationsanspruch im Zivilrechtʼ (1986) 25
Juristische Schulung 2; J Braun, Lehrbuch des Zivilprozeßrechts (Mohr Siebeck 2014) 103; Ahrens (n 23) 113–114; R Greger, Zöller Zivilprozessordnung (34th edn, Otto Schmidt 2022) 853; C
Gomille, Informationsproblem und Wahrheitspflicht (Mohr Siebeck 2016) 142 ff.
[119] P L Murray and R Stürner,
German Civil Justice (Carolina Academic Press 2004)
239–244, 589–610.
[120] R L Marcus, ʻExtremism in
the Pursuit of Truth is our Virtue: The American Infatuation with Broad Discoveryʼ in R H Rhee and
A Uzelac (ed), Truth and Efficiency in Civil Litigation (Intersentia 2012) 165, 166.
[121] WTO: Agreement on Trade-Related Aspects of Intellectual Property Rights, agreed in
Marrakesh on 15th April 1994.
[122] D P Harris, ʻTRIPS
Rebound: An Historical Analysis of How the TRIPS Agreement Can Ricochet back against the United
Statesʼ (2004) 25 Northwestern Journal of International Law & Business 99–164.
[123] Directive on the enforcement
of intellectual property rights, 2004/48/EC of 29 April 2004 (EU), articles 6-8, see also preamble
sections 4-7.
[124] In Germany, these rules on
disclosure have been incorporated in special legislation for intellectual property rights, see
Gesetz über Urheberrecht und verwandte Schutzrechte (UrhG) (‘Copyright and related rights act’) §§ 101 ff,
Gesetz über den Schutz von Marken und sonstigen Kennzeichnen (MarkenG) (‘Law on the protection of trade marks and
other signs’) §§ 19 ff, Gesetz
über den rechtlichen Schutz von Design (‘Law on the legal protection of designs‘) §§ 46
ff, Patentgesetz (‘Patent law’)
§§ 140b ff. In Norway, these rules have been incorporated in the general code of civil
procedure, see NCCP ch 28 and 28-A.
[125] ALI/UNIDROIT Principles 16.1
and 16.2, ERCP Rules 100 to 110.
[126] ERCP Preamble section III.
[127] Norwegian CCP §§
21-5, 26-5 and 26-6.
[128] Norwegian CCP § 26-1.
[129] Felleskjøpet Agri SA (Counsel Fredrik Lilleaas Ellingsen) v. Infor
(Steinhausen) II GmbH (Counsel Ola Haugen), No 18-186326SIV-HRET (Supreme Court,
Norway) Order 27 May 2019, HR-2019-997-A.
[130] Hjort (n 39); M Strandberg,
ʻBevistilgang og rollefordelingʼ in H Andersson, E Bylander and H Bellander (ed), Processrättsliga studier tillägnade Bengt Lindell (Iustus 2021) 277.
[131] Proposal for a Directive on
adapting non-contractual civil liability rules to artificial intelligence (AI Liability Directive),
COM(2022) 496.
[132] Proposed AI Liability
Directive (n 131) Art 3.4.
[133] C J Akin, ʻHow to
Discover and Use Social Media-Related Evidenceʼ (2011) 37(2) Litigation 32.
[135] Lüke (n 23)
295–296.
[136] See B Nunner-Krautgasser and P
Anzenberger, ʻInadmissible Evidence: Illegally Obtained Evidence and the Limits of the Judicial
Establishment of the Truthʼ in V Rijavec, T, Kerestes, T Ivanc (ed), Dimensions of Evidence in European Civil Procedure (Wolters Kluwer 2016) 195.
[137] For instance, the law of
England and Wales after Imerman v Tchenguiz and others (The Court of Appeal, UK) Judgment 10 May 2010, [2010] EWCA Civ. 908; see N Andrews,
Andrews on Civil Processes (2nd ed Intersentia
2019) 396–400.
[138] ERCP Rule 90 comment 1.