17 February 2020
Digitising disputes – 9 of 15 Insights
Digital bundles are increasingly appearing in the court room, forcing their paper counterparts into a long overdue retirement. Following the events of #bundlegate in the Supreme Court, enquiries about digital bundles have increased significantly, with a digital bundle increasingly likely to become the norm.
As "paperless trials" continue to grow in popularity, this article examines the advantages and disadvantages of digital trial bundles, to demonstrate why digital bundles are the future.
Digital bundles encourage real time collaboration between all members of a legal team, including the underlying client.
Counsel, experts and clients can all access the documents and add comments or tags which can instantly be shared with the rest of the team.
An increase in flexible working, the international nature of English litigation (with clients and witnesses frequently located abroad) and the vast number of documents included in court bundles means that the ability for everyone to access an up-to-date bundle from anywhere in the world, without relying on a hard copy version, is invaluable.
It is much quicker and easier to create and amend a bundle which is stored electronically. Gone are the days of adding or removing individual hard copy documents from multiple sets of bundles across various locations, which can be time consuming and risks human error.
An update made to a digital bundle can be checked once and instantly shared to all parties ensuring everyone has access to the latest version – including with automatically updated page numbers and cross-references.
One only needs to search #bundlegate on Twitter to see what happened in the Supreme Court in September 2019 when a discrepancy in the page numbering of the various bundles being used required some mental maths from counsel.
The speed with which bundles can be prepared and amended means they can be used from a much earlier stage, aiding trial preparation significantly.
The ability to keyword search the bundle means it is quick and easy to create bespoke custom bundles for individual witnesses, experts or themes in a case. Hyperlinking also allows for exhibits to witness statements to be integrated into the statement itself, allowing for faster navigation between documents.
Moreover, electronic bundles significantly reduce the time required to finalise the bundle in the lead up to trial, leaving more time to analyse the legal arguments.
Digital bundles allow for the seamless integration of various types of digital evidence for use in court. Audio and video files can easily be integrated leading to minimal disruption to counsel's momentum when referring a witness to such evidence during cross-examination.
Digital bundles can provide for significant cost savings for clients. The cost of printing multiple physical sets of bundles is reduced, as are the time costs associated with checking each hard copy for any errors.
Use of digital bundles reduces the environmental burden of printing potentially hundreds of thousands of pages, which may only be used for a short period of time. The transition to digital bundles is an important commitment for law firms looking to improve their environmental sustainability in this digital age.
Notwithstanding the advantages, the use of electronic trial bundles does present certain challenges.
As with other digital solutions, using an electronic trial bundle is only as effective and resilient as the underlying infrastructure.
It is difficult, if not impossible, to guarantee that a service requiring constant remote access to a cloud-based system across a range of devices will function as intended in all courts and at all times.
As Lord Justice Hildyard recognised when presiding over the Autonomy civil trial: "it’s a luxury of having this wonderful system but when you become reliant on it and it fails, it’s a great problem."
Digital bundle providers typically charge for hosting and hyperlinking on a per document basis, with users being charged for each week they have access to the system.
For litigation involving a large number of documents and vast legal teams, this represents a significant and ongoing cost to be incurred by the parties at a comparatively earlier stage than the costs associated with printing hard copy bundles.
There is also a risk that those more comfortable with physical bundles will still request hard copy documents from which to work, in addition to access to the digital bundle. When the request is only by one or two parties that is not an insurmountable issue, but it can often lead to other people also requesting hard copy documents.
Hard copy requests can lead to duplication in cost as there will inevitably be a need for the user to also have access to the electronic bundle site, even if to only use the basic viewing function for the most up-to-date documents or digital evidence.
The relative ease with which documents can be included in a digital bundle means that the trial bundle often ends up containing all the documents related to the matter, rather than just those required by the court to determine the issues in dispute. As a result, legal teams can find themselves being required to spend significantly more time dealing with documents in preparation for trial.
The advantages provided by digital bundles are overwhelming. They allow ease of collaboration while also providing time and cost savings. The main two disadvantages – being the initial setup costs and potential questions over reliability – are not insurmountable hurdles meaning the use of electronic bundles is inevitably going to continue to increase.
As legal teams become progressively more familiar with digital bundles, the advantages of using the system will only increase and the paper bundle will be consigned to the recycling bin forever.
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The Future of Litigation
by Multiple authors