Guest article: Scottish Civil Court Review – a missed opportunity?

Here’s another of our occasional guest articles… Here, John Craske, Head of Business IT at Dundas & Wilson LLP, looks at the Scottish Civil Court Review and its approach to technology and e-discovery and asks if this was a missed opportunity?The Scottish Civil Court Review was launched in April 2007 “… with a view to making recommendations for changes to improve access to civil justice, promote early resolution of disputes, make the best use of resources and ensure that cases are dealt with in ways which are proportionate to the value, importance and complexity of the issues raised.”After a long consultation, the Scottish Civil Court Report was issued at the end of September. While it acknowledges that Scotland is behind many other jurisdictions in its use of technology and makes several recommendations, it does not set out a comprehensive IT strategy.Information TechnologyThe main recommendation made regarding the use of information technology in the civil courts is that the Scottish Courts Service (SCS) should develop a strategy for enhanced provision of technology. It also makes several additional recommendations: to improve the SCS website; pilot a new online case management system for small claims cases; encourage greater use of email; and make use of tele/video/web conferencing where possible for case conferences and even hearings.The Report acknowledges that Scotland is behind many other jurisdictions in our use of technology and that this is leading to an ever increasing gap between our growing use of technology at work and home and our experiences within the Scottish court system. However, apart from some general priorities for the SCS to consider, the Report does not set out a vision for the use of technology in the Scottish Courts or recommend any timetable.Being behind in its use of technology provides Scotland with the opportunity to learn from what has worked – and importantly, what has not worked – in other jurisdictions, but the concern is that by the time an IT strategy has been finalised and implemented Scotland will have fallen yet further behind. Whether or not the Scottish Courts can catch up with other jurisdictions and harness technology to reduce costs and improve access to justice will largely turn on how quickly SCS can pull together a robust and forward looking IT strategy and then follow through and implement it.Electronic Discovery & Disclosure of EvidenceThe disclosure of evidence between parties and to the court is an important part of any court case and one of the key ways that the issues in a case can be identified, clarified and ultimately proved or disproved.With increasing reliance on computers and electronic communication in our work and home lives it inevitably follows that reliance on electronic evidence in court cases will grow.The sheer volume of electronic documents and communications requires rules, guidance and tools to help find, collect, review and filter electronic evidence.  Otherwise, searching for and producing electronic evidence can be like trying to find a needle in a haystack.The importance of electronic discovery and the skills and services in this area (such as forensic collection and scanning/indexing paper documents so that they can be searched for electronically) are especially important in complex cases or those involving large numbers of documents.  In these cases the majority of evidence is often email or electronic documents and using specialist tools to aid with the review of the electronic (and even paper) evidence is becoming a more practical and  cost effective method.Electronic discovery tools can be used to help find, collect, filter, review and ultimately disclose electronic and paper documents and evidence to the court and other parties.  Electronic discovery tools could also help litigants and law firms to properly find, review and understand the issues before the matter gets to court. This will aid in building stronger cases and perhaps even avoid litigation – but like anything new, using these tools presents their own challenges and potential pitfalls.Electronic discovery is a hot topic in the legal technology world, with a plethora of cases, opinions, emerging rules, blogs and websites and ongoing discussions from jurisdictions all over the world.  Although a body of best practice and rules has evolved to quite a high degree in several other jurisdictions – notably in England & Wales (where the Civil Procedure Rules specifically cover electronic evidence) and in the USA – adoption and use of electronic discovery tools in Scotland has been very limited. It is only a matter of time before this becomes a real issue for the Scottish Courts.The Report takes the view that there is no appetite in Scotland for widening the discovery process to the same extent as has happened in England – mainly because of the potential cost impact at the outset of a case. There are no specific recommendations related to electronic evidence or electronic discovery tools in the Report. However, a key theme of the Report is to recommend more active judicial case management and it is proposed to give judges the power to order parties to search for and disclose evidence. This will include electronic evidence.The implementation of these new powers would give the Scottish Courts an opportunity (and perhaps even a responsibility) to consider the importance and impact of electronic evidence, the rules and guidance required and the benefits of using electronic discovery tools. This could help support the discovery process in general and the development of guidelines and best practice now (based on experiences in other jurisdictions and in England in particular), rather than after these issues arise in Scotland.Whilst a welcome start, the Report is perhaps only the beginning of the debate. The proof of whether the Scottish Courts can use technology to get real benefit and avoid some of the pitfalls encountered elsewhere will very much depend on what happens next!• The Report of the Scottish Civil Courts Review was issued on 30 September 2009. Weighing in at 700 pages, it makes wide ranging proposals for reform to the civil justice system in Scotland. The background to the review and report and copies of the consultation papers and the Report itself can be found on the Scottish Court’s website