The Supreme Court of British Columbia’s Practise Direction regarding electronic evidence and e-trials is dated July 2006. It was part of an early Electronic Evidence Project by the Supreme Court. It is the oldest practise direction I found in circulation. Other Practise Directions – such as the Canadian Judicial Council’s National Model Practise Direction for the Use of Technology in Civil Litigation (2008) and Alberta’s Civil Practice Note No. 4 (2011) – use exactly the same words and follow exactly the same template as this Practise Direction.
Why it matters: BC’s Practise Direction may be old, but it is still useful. It grounds the court when parties bring electronic trials into the courtroom. It encourages parties to adopt electronic trial procedures when “a substantial portion of the Potentially Discoverable Documents consist of Electronic Material, the total number of Potentially Discoverable Documents exceeds 1,000 Documents, or there are more than three parties to the proceeding.” It says that the court can make orders that certain steps in the litigation be conducted digitally, or that the entire trial be conducted electronically. It also says that the court can order that an e-trial order can include that a restriction on using hard copy documents at trial.
Section 7.1 requires that the parties inform the court on “how best to use Technology at trial” at least 60 days before trial starts, at a pre-trial conference:
7.1. Not later than 60 days prior to the commencement of the trial the parties will be required to make submissions to the Court in a pre-trial conference in accordance with Rule 35(4) regarding how best to use Technology at the trial. They should address all aspects of the Technology that might be used at trial by the parties and the Court…BCSC PRACTICE DIRECTION Re: Electronic Evidence dated July 1, 2006
The Practise Direction has a companion document, titled “Generic Protocol Document”. This is a template protocol for exchanging documents digitally, and not a protocol for running an e-trial. It sets out an “exchange regime”, which is useful for showing the court’s interest in, and support of, electronic document exchange. However, it is old. It references old formats, such as “single page TIFF format”. Savvy parties will want to use an updated protocol to guide their document exchange process.
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