Electronic Discovery — In Pursuit of Relevance

1. Preliminary

1.1 Discovery

Discovery is the term³ used to refer to the various procedures by which a party to a proceeding is able to obtain information and documents held by other parties.⁴ Such disclosure is performed in the endeavour that each party will have access to relevant information in support of their case, to determine fact and facilitate the resolution of matters in issue.

1.2 Electronic Discovery

Electronic discovery (e-discovery) is the term widely used to define the process of identifying, managing and exchanging discoverable documents between parties to a proceeding.  However, this term may also be used with two distinct interpretations:

1.3 Traditional E-Discovery

Traditional e-discovery involves the conversion of paper documents into an electronic form.  This conversion process is typically undertaken by scanning each paper document into an electronic image format. Whilst relatively straight-forward in comparison to modern e-discovery, traditional e-discovery also presents unique issues for practitioners, including dealing with:

• manual labour involved in scanning, barcoding⁵ and coding⁶ paper documents;
• variable ‘quality’ of a paper documents for scanning and OCR;
• double-sided pages;
• A3 and larger page sizes (e.g. architectural diagrams, maps); and
• post-it notes and similar temporary adhesive notes.

1.4 Modern E-Discovery

Over 90% of all business documents and correspondence subsist in an electronic form.   Consequently, modern e-discovery involves dealing with electronically stored information (ESI) and electronic documents in their original, electronic form.

2. Practical E-Discovery  

The inherent legal implications and technical issues of e-discovery may be examined, and dealt with, as part of a seven step process.

2.1 Plan

Prior to commencement, it is essential to appropriately plan and prepare for the anticipated scope and volume of discovery to avoid criticism as to excessive time and cost as litigation proceeds.   This process readily involves diligent analysis as to the facts in issue, with a focus to relevant and/or disputed issues.

Discovery Rules

Consideration must be given to the applicable jurisdictional rules and procedure for discovery, including relevance and reasonable search⁷ tests.  

E-Litigation Practice Guidelines

The majority of Australian courts have implemented practice guidelines (i.e. a note or direction) in relation to electronic litigation (e-litigation).  Current generation e-litigation practice guidelines do not, as a general rule, mandate e-litigation.¹⁴  In contrast, they merely encourage the use of technology for greater litigation efficiency, during pre-trial procedures (i.e. filing of court documents and discovery) and the actual conduct of an electronic trial.
 
The electronic listing and exchange of discoverable documents and court documents (e.g. pleadings and witness statements) is readily recommended when the volume of discoverable documents exceeds 500.¹⁵

The Supreme Courts of Western Australia, Tasmania and the Australian Capital Territory (ACT) are yet to formally release similar practice guidelines.  However, the Supreme Court of Western Australia has used a proprietary litigation support system, based on Lotus Notes, to manage the Bell Resources litigation.  Further, both the Supreme Courts of Tasmania and the ACT have conducted electronic inquiries in the past.

The E-Discovery Proposal

Consideration must be given as to how the concept of e-discovery will be proposed to both the client and counsel. This may include whether a litigation support system will be used to manage all discoverable documents in the proceedings (both paper and electronic) using a database.  If you do not have access to an internal litigation support department, you may need to consider engaging an external service provider to efficiently facilitate this process.
 
Benefits of a litigation support system include:

• centralisation of all court and discoverable documents (i.e. prevents lost documents);
• a collaborative environment (e.g. to create shared lists of relevant documents grouped by one or more issues); and
• automated generation of the list of documents. 

Whilst the establishment costs of a litigation support system are often negatively perceived, such costs must be compared to subsequent inefficiencies of not implementing such a system, particularly during the document review and production process.  External service providers are increasingly offering online litigation support systems, which as the name implies, are accessible via the Internet.¹⁷
 
Online litigation support systems provide the added benefit of each user being able to perform document review using their web browser, as opposed to installing software, and potentially from any location where Internet access is available.¹⁸ Such technology ultimately provides the opportunity for sole practitioners and smaller firms to introduce efficiencies enjoyed by many mid-tier and top-tier firms, as required, without a large capital investment into technology infrastructure.

The Document Management Protocol

The majority of disputes over e-discovery arise when parties fail to agree upon a document management protocol (DMP)¹⁹ prior to discovery. Disputes may also occur where documents are produced in conflict to the default and/or matter-specific DMP.  Consequently, it is imperative to give early consideration to a DMP, whether you will draft a DMP for agreement by the parties, or whether the default court DMP is sufficient.
 
As a fundamental component to litigation efficiency, a DMP must provide clear directions to ensure compliance and consistency.  Further, common pitfalls need to be addressed:

• How will documents be uniquely and uniformly numbered? (i.e. using a Document ID)
• What data fields should the discoverable document database contain beyond the default?
• How many data fields require objective coding?²⁰ (e.g. document title, author, date)
• How many data fields require subjective coding? (e.g. privilege status
• How are document ‘hosts’ and ‘attachments’ to be managed?
• How will documents be classified? (e.g. document classes, electronic file types); and
• In what format will electronic documents be produced and exchanged? (e.g. electronic image format and/or native format)

The Pre-Discovery Conference

It is increasingly common to meet with the other parties and their technology personnel, to work through, and hopefully resolve any issues pertaining to discovery.  It is ideal that such a meeting is held prior to the commencement of discovery.  The Supreme Court of Victoria Practice Note includes provision for the court to order parties to meet.²¹ In contrast, the forthcoming Federal Court of Australia Practice Note, in current draft form, will mandate the concept of a pre-discovery conference (PDC) for all parties to acknowledge their discovery obligations and formulate appropriate strategies to address foreseeable issues, including:
preservation of paper and electronic documents;

• discovery scope (reasonable searches and relevance);
• time schedule and cost estimates;
• management of privileged information; and
• the DMP to be used in the proceedings.

Further Practical Considerations

• Settlement prospects
• Available time and resources for discovery
• Anticipated cost of discovery (and their likely recoverability within court rules)
• Involvement of counsel during discovery decision-making  

2.2 Identify

During the initial assessment as to the scope of discovery, thought must be given to where the potentially relevant information is stored. Such information, as documents, may be stored in paper and/or electronic form.

Documents

The Commonwealth Evidence Act defines a ‘document’ as follows:²²

(a) anything on which there is writing, or 

(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them, or 

(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else, or

 
The Act further provides:²³
 

(a) any part of the document;²⁴ or

(b) any copy, reproduction or duplicate of the document or of any part of the document; or

 
The Commonwealth Evidence Act definition of ‘document’ is adopted by the Federal Court Rules:²⁵

It is beyond the scope of this paper to discuss the various interpretations of a ‘document’ within each Australian jurisdiction.²⁶ However, it is readily accepted that ESI falls within the definition of a document.²⁷  It also must be noted that the ‘original’ of an electronic document may also be referred to as its native form (i.e. the form in which the electronic document normally subsists).

Your Client and Information Management

Identification pertains to the fundamental issue of understanding:

• What information does your client hold?
• Who manages the information?
• How the information is managed (as part of an information lifecycle)?
• Where is the information stored? 

In relation to paper documents, you may initially consider one or more physical office locations, a centralised storage location and/or off-site archive storage.  In contrast, ESI presents challenges for legal practitioners due to its inherent disposition:

• ESI is dynamic;
• ESI is ever-increasing in volume;
• ESI is stored in many distributed locations; and
• routine processes can delete or overwrite (i.e. destroy) ESI without human intervention.

In practice, legal practitioners require an understanding of ESI to appropriately address the unique methodology which will likely be required for each client.  Pertinent factors in determining your ESI search methodology will include:

• relevant jurisdiction court rules and practice guidelines as to discovery (e.g. time, cost and likely burden to be incurred in accessing potentially relevant ESI);²⁸
• storage practices and resources of your client; and
• available technical expertise and/or reference knowledge (e.g. computer network diagrams) as to the client’s information technology (IT) and document management infrastructure.²⁹ 

The ability to ask the right questions of your client’s IT personnel and to understand the apparent presence, and storage locations of potentially relevant ESI is essential to avoid the risk of missing relevant discoverable evidence, including:

• ESI which may be stored in another geographic location (another state, another country);
• ESI which may be stored on obsolete (superseded) computers or technology;³⁰
• ESI which may be stored on proprietary technology architecture; and
• ESI which may be deleted or lost.³¹

Sources of Electronically Stored Information

You may need to consider one or more of the following sources of ESI to fulfil your discovery obligations:

Personal Computers

The ubiquitous personal computer, whether desktop or notebook, may be configured to operate independently and/or as part of a computer network.

ESI may be stored on one or more hard disk or solid-state drives within the personal computer.

Communication Devices

• Modern communication devices, such as personal digital assistants (PDAs), BlackBerry and mobile phones, have comparable processing and storage power to that of a recently superseded personal computer (in a much smaller frame!).³²
• Short Message Service (SMS) and Multimedia Messaging Service (MMS) messages.
• Voicemail messages.

Consumer Devices

• Media players, such as the Apple iPod, may be used as a portable storage device as easily as they may be used to store audio and video content.
• Digital Cameras.
• Digital Voice Recorders.
• Global Positioning Systems (GPS).

Portable Storage

• Floppy Diskette.
• Optical Media: CD, DVD.
• Universal Serial Bus (USB) keys.
• Memory Cards.
• External Hard Drives.

E-mail

• For an individual or home user, e-mails are generally stored on the personal computer with a copy, albeit for a limited time, stored on an e-mail server controlled by an Internet Service Provider (ISP).
• In commercial organisations, e-mails are generally synchronised between an e-mail client and an e-mail server.³³

Electronic Files

• Discoverable ‘electronic files’ are generally word documents, spreadsheets, presentations, databases³⁴, images, webpages, logs³⁵, etc.
• For an individual or home user, electronic files may be stored disparately or within an undocumented/ambiguous folder structure on one or more personal computers, communication devices or personal storage media.
• In commercial organisations, electronic files may be stored on an individual’s personal computer or storage devices and/or centrally — on a file server and/or document management system.³⁶

Computer Servers

• E-mail Servers — a computer containing an ‘e-mail store’ which holds one or more ‘e-mail mailboxes’ for each user within an organisation.
• File Servers — a computer which may be used as a central storage location of electronic files, either at a departmental or organisational level.
• Application Servers — a computer that provides a specific application (i.e. software program) for an organisation (e.g. Enterprise Resource Planning (ERP) software).
• Fax Servers — a computer which may replace a traditional fax machine by automatically storing and forwarding faxes to be sent and received.
• Proxy Servers — a computer which may be used as a method of logging user Internet access within an organisation.
• Remote Access Servers — a computer which may be used as a method of providing a user with remote access to an organisation’s computers and/or network.

Other Storage Types — Archive and Backup³⁷

• Archive storage is considered ‘nearline’ and is solely intended for archival storage.
• Backup storage is considered ‘offline’ and is readily intended for mere restoration of a computer, often a server, for the purposes of disaster recovery or business continuity.
• Tape backups are a unique storage medium which may be created either as an ‘archive set’ or ‘backup set’.

Preliminary Scope

Once a reasonable grounding as to the relevant issues in the proceedings and your client’s information management practices (or lack thereof) is established, a preliminary scope may be formed.
 
For example:

• Annual Reports from X to Y which are likely stored on Client’s File Server.
• E-mails from X to Y (or Z) from [Date] to [Date] which are likely stored on Client’s E-mail Server and X’s personal computer; and
• Electronic Files created by X from [Date] to [Date] which are likely stored on specified tape backups. 

The topic of reasonable searches in relation to ESI will be covered in the presentation.³⁸

Document Retention and Destruction

This topic will be covered in the presentation.

2.3 Collect

The second step of our approach is to collect and preserve the potentially relevant set of ESI.  Appropriate caution and regard must be given to the fact that all identified ESI is potentially relevant electronic evidence, and must be handled and managed accordingly.³⁹
 
Balance must be struck between managing an ever-increasing volume of ESI by engaging a trained computer forensic professional to create a forensic image (exact copy) of each physical data storage device (e.g. a hard drive), as opposed to merely extracting a logical copy of specific relevant electronic documents in a forensically acceptable manner.⁴⁰
 
Achieving such balance will depend on a number of variables which are often dependent again on the time, cost, volume and accessibility of ESI.  However, it is essential to use a proven methodology to copy data from one data storage device to another.  As a relevant example, even copying (burning) data to optical media (e.g. CD/DVD) will generally alter the metadata of an electronic document.

Metadata

Metadata is the embedded information that exists as part of each electronic document.⁴¹ It is commonly referred to as ‘data about data’.  Essentially, metadata is the difference between an electronic document in its original, electronic form and the printout of the same electronic document which only contains the formatting and text of the original, electronic document.
 
In relation to an e-mail, metadata includes the sender, recipients, subject, e-mail sent date/time and attachment information.  In contrast, metadata for an electronic document, such as a Microsoft Word document may include the purported author, creation date, last modified date, last saved date, last printed date and possibly even data pertaining to document revisions.⁴²  In addition to metadata contained within an electronic document, the formulae behind a spreadsheet are also considered to be metadata.⁴³
 
The production of electronic documents, merely in printed form, or otherwise without their associated metadata, has previously been noted as “dismembered documents indeed”.⁴⁴  In addition, as a matter of practice, some organisations use metadata ‘scrubbing’ software utilities prior to the external dissemination of electronic documents and this may be another issue to be managed.⁴⁵

2.4 Restore

Once all ESI is collected, certain circumstances may require data to be restored into a readily accessible form prior to further analysis and review.
 
This may include:

• restoration of deleted data;46 
• defeating password-protected electronic files and/or other encryption methods; and
• restoration of compressed data (e.g. from tape backups).⁴⁷

2.5 Filter

Once all potentially relevant ESI has been collected and appropriately restored, you may begin the filtering (also referred to as ‘culling’) process using one or more of the following techniques.

De-duplication

De-duplication is the process of removing duplicate electronic files from the potentially relevant document set.  Such reference to a ‘duplicate’ means one or more electronic files which are truly identical based on a cryptographic hash.⁴⁸  A cryptographic hash may be considered to be the ‘digital fingerprint’ of an electronic file.⁴⁹
 
As traditional de-duplication is limited to identifying exact duplicates of an electronic file, emerging technology has provided the opportunity to identify sets of ‘near duplicates’.  A near-duplicate may be an:

• one or more otherwise duplicate electronic files, except for a minor alteration;⁵⁰ or
• one or more electronic files with the same content, yet in different file formats.⁵¹

Key Storage Locations and Key Custodians

You may limit your searches to certain key storage locations and/or key custodians.

Keywords and Search Terms

You may filter your document set by searching on a devised list of keywords and/or search terms.  However, such efforts must be exercised with caution by:

• understanding the limitations of your data – certain electronic files (e.g. images) may contain relevant text but may not have been previously processed with OCR and subsequently were not indexed and/or searched; and
• understanding the parameters and limitations of your search tool, no technology is perfect. 

As keywords and search terms are often subject to attack, it is advisable to agree upon such filtering techniques prior to commencement.

File Types

You may filter your document set to certain electronic file types. This is generally performed by filtering on file extension. For example, the extensions ‘.doc’ or ‘.docx’ readily represent a Microsoft Word document. However, filtering on file extension does not allow for any files which may have an incorrect file extension, which may be easily altered, either intentionally or inadvertently. This may be rectified by filtering on file signature.

Date Ranges

You may filter your document set to one or more specific date ranges. However, each electronic document generally has at least three (3) timestamps.  Timestamps record the date and time an electronic document was last modified, last accessed and created.  These are also referred to as ‘MAC times’ and you must consider which one you will rely upon when filtering.⁵²

2.6 Review

Once you have filtered your document set, the review process may begin.

Offline Review

You may use software installed on your personal computer to review each document for relevance.

Online Review

Alternatively, you may use an online litigation support system.

Redaction

The process of redaction, also commonly referred to as ‘masking’, is a critical issue when dealing with electronic documents that are either part-privileged or confidential.  Traditional redaction of an electronic document is generally facilitated by conversion to an electronic image format and masking the relevant text.  The latest version of Adobe Acrobat Professional has a built-in redaction tool that appropriately redacts relevant text, whilst still allowing the remainder of the document to be searched.

Inadvertent Disclosure of Privileged Information

This topic will be covered in the presentation.

2.7 Produce

The final stage is producing and presenting your filtered and reviewed document set to the other parties for discovery, and the court, for inclusion in the courtbook.

This stage will readily include:

• assigning a Document ID to each page of each document (if not completed earlier);
• performing a final validation and quality control;
• supplying documents in the specified format (e.g. native format and/or electronic image format); and
• supplying affidavit and list of documents in appropriate form.⁵³

Production of Searchable Electronic Images

The Tagged Image File Format (TIFF) has traditionally been used as the default electronic image format. The Portable Document Format (PDF) is widely considered to be the replacement format due to its inherent support for full-text searching and redaction (masking) of part-privileged or part-confidential documents.⁵⁴
 
Many practitioners have experienced dismay in recent years where paper documents were ‘digitised’, yet still had to be manually reviewed on a page-by-page basis for relevance. Fortunately, the evolving maturity of optical character recognition (OCR) technology provides the opportunity to electronically search previously unsearchable electronic images.⁵⁵

3. Closing Remarks

“I have no doubt that the manner in which [the applicant’s] electronic discovery was provided, together with the complete lack of any index, has contributed significantly to the problems which have subsequently arisen”.⁵⁶
 
As the legal profession is presented with increasing volumes of e-mail, electronic documents and ESI, the diligent practitioner must possess a working understanding of the myriad of issues associated with electronic evidence. Whilst technology is available to increase litigation efficiency, it is not a complete solution.
 
The key to successful e-discovery is taking steps to avoid adversarial debate and making attempts to understand and agree upon how the discovery process will be undertaken, with both your client and the other parties.  It is advisable to consult proven specialist advisory when dealing with ESI.
 
Seamus Byrne²

Footnotes

1. All endeavours have been made to ensure the currency and accuracy of information provided as at 1 November 2007.
2.  Lawyer, LL.B, CISSP, CCE, EnCE, MCP, Security+
   Further Reading: [http://www.seamusbyrne.com], [http://www.vincents.com.au].
3.  In South Australia and Queensland, the comparable litigation process is referred to as ‘disclosure’.
4. Bernard Cairns, Australian Civil Procedure (7th ed, 2007) 271.
   Stephen Colbran, et al, Civil Procedure: Commentary and Materials (3rd ed, 2005) 544.
5. Paper documents generally need to be manually barcoded for future identification prior to conversion to an electronic form.  In contrast, an electronic document may have a Document Identifier (Document ID) applied electronically.
6. ‘Coding’ is the term given to the process of describing discoverable documents for reference in a spreadsheet or database. For paper documents, this is commonly a manual data entry process to describe the objective and subjective elements of a document.  In contrast, and dependent on the quality of metadata, the objective elements of an electronic document may be automatically coded (via metadata extraction).
7. For example: Federal Court Rules 1979 (Cth)(FCR), O 15, sub-r 2(5) which applies to the operation of sub-r 2(3).
   See also: Federal Court of Australia, Directions for the Fast Track List (Victorian District Registry), [7.2].
8. FCR O 15, sub-r 2(3).
   This rule is limited by FCR, O 15, r 3.
9. FCR, O 15, r 8.
   Federal Court of Australia, Practice Note 14 (3 December 1999).
10.  Uniform Civil Procedure Rules 2005 (NSW) r 21.2.
11. Supreme Court (General Civil Procedure) Rules 2005 (Vic) O 29, r 02.
12. Supreme Court Civil Rules 2006 (SA) r 136.
13. Uniform Civil Procedure Rules 1999 (Qld) r 211.
14. Supreme Court of New South Wales, PN Eq 3, [27-32].
15. Federal Court of Australia, PN 17, [4].
    Supreme Court of New South Wales, PN SC Gen 7, [18].
    Supreme Court of South Australia, PD 2.1/2006, [2.1.8].
    Supreme Court of Queensland, PD 8/2004.
16. This is a general case management practice note for matters on the Commercial List and Technology and Construction List in the Equity Division of the Supreme Court of New South Wales.  It is notable as it proactively expects legal practitioners to have an awareness of ESI and goes even further to mandate e-discovery.
17. Such offerings are often referred to as hosted or Application Service Provider (ASP) services.
18. It is always recommended to verify the measures that your firm and/or your engaged external service provider has implemented to secure information and documents from unauthorised access and/or alteration.
19. Also commonly referred to as a ‘Document Protocol.
20. See [6]. 
21.  Supreme Court of Victoria PN 1/2007, [2.8.2].
22. Evidence Act 1995 (Cth) Dictionary, Pt 1.
23. Evidence Act 1995 (Cth) Dictionary, Pt 2, Cl 8.
24. The inclusion of the ‘part of’ provision is important as it effectively provides that partially recovered information from a deleted document also falls within the definition of a ‘document’.  This provision may also be used to support an argument for production of metadata, as embedded information, which forms part of an electronic document.
25. FCR, O 1, r 4.
26. Acts Interpretation Act 1901 (Cth) s 25.
    Interpretation Act 1987 (NSW) s 21.
    Evidence Act 1958 (Vic) s 3.
    Interpretation of Legislation Act 1984 (Vic) s 38.
    Acts Interpretation Act 1954 (Qld) s 36.
    See also: Acts Interpretation Act 1954 (Qld) s 32E.
27. See also: Sony Music Entertainment (Australia) Ltd v University of Tasmania [2003] FCA 532.
28. Example: Supreme Court of New South Wales, PN SC Eq 3, [27-32].
    The mere volume of electronic documents: Galati v Potato Marketing Corporation of Western Australia (No 2) [2007] FCA 919.
    The best technology method for searching for relevant electronic documents: Sony Music Entertainment (Australia) Limited v University of Tasmania [2003] FCA 532.
29.  You may also consider engaging an e-discovery expert to act as a translator between your client’s internal IT team and/or their outsourced technology provider to understand and resolve apparent technical hurdles.
30. Davies & Anor v Chicago Boot Company [2006] SASC 241 (Lunn J, 22/06/06).
31.  As a general principle, deleted data may be recovered by a computer forensic practitioner. 
    Example: Supreme Court of New South Wales, PN Eq 3, [30.3].
32.  Consider that most modern mobile phones have three (3) sources of ‘potentially relevant’ ESI — the Subscriber Identity Module (SIM) card, internal memory and an external memory card.
33.  Microsoft Outlook and Lotus Notes are e-mail client software which is generally installed on a personal computer to synchronise e-mails and other ESI (e.g. contacts, calendar items) with an e-mail server.
34. A database may be considered a meaningless collection of data, stored in tables.  Consequently, you or an opposing party may request a database to subsequently query the database and generate meaningful information in the form of a report. See also: Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640 (D. Kan. 2005); Jarra Creek Central Packing Shed Pty Ltd v Amcor Ltd [2006] FCA 1802 [23-24].
35. It must be remembered that logs often are enabled, especially in corporate environments, and may retain substantial information in relation to certain activities and/or transactions.
36. In smaller organisations, an e-mail server and file server may be the same computer.
37.  See also: Zubulake v UBS Warburg LLC, 217 F.R.D. 309 (S.D. N.Y. 2003) for further commentary on data storage.
38.  See also: Nozzi Pty Ltd v Commissioner of Taxation [2003] FCA 356 52 ATR 521, 523 (Stone J).
39. Standards Australia released ‘best practice’ guidelines, as opposed to a standard, in their Guidelines for the Management of IT Evidence (HB 171-2003).
    The guidelines highlight the importance of computer forensic principles, appropriate note-taking and maintenance of a chain of custody log for each item of electronic evidence [3.4].
    The guidelines provide some clarity in relation to establishing authenticity of an electronic document [3.2.3].
40. For example, when only a very small number of e-mail mailboxes of certain custodians have been identified, it is more efficient to only copy those e-mail mailboxes as opposed to an entire e-mail server.
41. Jarra Creek Central Packing Shed Pty Ltd v Amcor Ltd [2006] FCA 1802 [16].
42. This generally applies if ‘Track Changes’ (or similar) was enabled. You may access metadata for a Microsoft Word document by selecting [File]  [Properties].
43. Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640 (D. Kan. 2005).
44. Armstrong v Executive Office of the President, 1 F.3d 1274 (D.C. Cir. 1993), rev’d in part on other grounds, 90 F.3d 553 (D.C. Cir. 1996).
45. For example, ensuring that the specific electronic documents with metadata intact are retained by the organisation in accordance with their Document Retention and Destruction Policy.
46. Order for further discovery of deleted e-mails: Cosdean Investments Pty Ltd v Football Federal Australia Ltd (No 2) [2006] FCA 1775.
47. Attempts to avoid discovery of tape backups on basis of cost and difficulty in restoration and review: BT (Australasia) Pty Ltd v State of New South Wales & Anor (No 9) [1998] 363 FCA (Sackville J, 09/04/1998).
    Assessing the probative value (relevance) of e-mails in comparison with the burden of tape backup restoration: Leighton Contractors Pty Ltd v Public Transport Authority of Western Australia [2007] WASC 65; Slick v Westpac Banking Corporation [2006] FCA 1712.
48. Common cryptographic hash functions are the Message Digest algorithm 5 (MD5) and Secure Hash Algorithms (SHA-1, SHA-256).
49. Consequently, a cryptographic hash may also be used to verify the integrity of an electronic file.
50. Example: Adding bold text to a portion of text, or a new line of text in a Microsoft Word document that would otherwise be considered an exact duplicate.
51. Example: A near duplicate may be considered a Microsoft Word document which has been converted to a PDF.
52. MAC Times: (Last) Modification, (Last) Accessed, Creation.
53. The list of documents is generally electronically compiled and exchanged in a spreadsheet compliant with the applicable Court rules and form, unless varied by the DMP.
    FCR, O 15, r 6 (Form 22).
    Uniform Civil Procedure Rules 2005 (NSW) r 21.3 (Form 10).
    Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 29.04 (Form 29B).
    Uniform Civil Procedure Rules 1999 (Qld) r 214 (Form 19, Schedule).
    Supreme Court Civil Rules 2006 (SA) r 137 (Form 20).
54. Supported by PDF version 1.7 (Adobe Acrobat 8 Professional).
55. Also referred to as ‘full-text searching’.
    See also: Jarra Creek Central Packing Shed Pty Ltd v Amcor Ltd [2006] FCA 1802 [25-26].
56. GT Corporation Pty Ltd v Amare Safety Pty Ltd [2007] VSC 123, [36] (Hollingworth J).