Evidence Act 2008: Implications
for Recordkeeping and
Document Management
Julie Savoie
Public Record Office Victoria
Today I’ll talk about
• Brief history of the Evidence Act 2008
• Changes to the Evidence Act
• Electronic Documents and eDiscovery
• Good Records, Good Evidence
Why does evidence law matter?
• Evidence law provides the “language” of
litigation
• All relevant evidence must be produced
• Documentary evidence is the cornerstone
of many cases
What is the state of play nationally?
• Uniform Evidence Acts in the Commonwealth
and NSW from 1 January 1995
• Tasmania introduced mirror legislation in 2001
• Victoria’s Evidence Act 2008 came into force 1
January 2010
• Other states and territories remain common-law
jurisdictions
Why unify evidence law?
• Rules were derived from past cases
common law
• Different and sometimes mutually
incompatible rules of evidence
• Leads to confusion, complexity and
uneven outcomes
Why modernise evidence law?
• Outdated
• Unnecessary level of complexity comes
from common law application
Key principles of evidence
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Fact-finding
Civil and criminal trials
Predictability
Cost, time and other concerns
Changes to the Evidence Act and
Recordkeeping(1)
• The notion of documents as
evidence/proof
• The abolition of the “original as best
evidence” rule
• The admissibility of computer-generated
records
Changes to the Evidence Act and
Recordkeeping (2)
•Records in electronic formats are no
longer vulnerable to exclusion from
evidence
•Electronic records now have the same
evidential weight as paper records
•But all records can still be challenged in
court regarding their authenticity
Recordkeeping and Digitisation
• The Electronic Transactions (Victoria) Act is not
relevant
• The Crimes (Document Destruction) Act and
Evidence (Document Unavailability) Act do not
criminalise normal records disposal
• You can scan and destroy, but certain conditions
must be met
Advice on Evidence and
Public Records
• Good records, good evidence
• Authenticity
• Accuracy of the reproduction process
• Ongoing accessibility
• Your system needs to stand up to scrutiny
Authenticity
• Not a new concept
• A record tendered into evidence is what it
purports to be
• Has been created or sent by the person
purported to have created or sent it
• Has been created or sent at the time
purported
Accuracy of the
Reproduction Process
• Reliability
• Integrity
• Documentation of process
Ongoing Accessibility
• Useability
• Continued access
• Technological obsolescence
In General
• Most source records can be disposed of
once they have been converted
• Records must retain their evidentiary
status
• Cannot dispose of source records unless
– full and accurate copy
– full retention period of the record
– the converted record becomes the business
record
– not part of an exclusion category
You still can’t destroy when…
• It has value as an artefact
• It must me retained in a specific format
• It is subject to a government policy or
direction
• It is subject to a disposal freeze
• It is on loan from PROV
Digitisation Plan
• The organisation should prepare a set of
documents that show that they have
properly planned a digitisation project
• Should match the scale of the project and
the importance of the records
Electronic Documents
• 90-95% of content is held electronically
• 85% of business communications occur via
email
• 85% of stored information is unstructured text
• Emails used as casual conversation—4 billion
emails/day in US
• 1 GB = 75K pages = 30 bankers’ boxes
• e-trial C7 case: 85 000 documents and 12 000
admitted in evidence
Challenges of Electronic
Information
• Volume and location
• Relevant information is mixed with irrelevant
information
• Policies are not followed
• People write stupid things
• New technologies create new challenges
• Some electronic data is invisible
• Delete does not mean delete
How to Handle Volume
• Identify potentially relevant documents
– Collaboration
– Consider specific questions
• Proportionality
• Preserve potentially relevant documents
– Duty to preserve
– International standards will provide guidelines
eDiscovery
Any process in which electronic data is
sought, located, secured and searched
with the intent of using it as evidence in a
civil or criminal legal case.
Practice Notes and eDiscovery
• Recent move among courts towards
providing guidance and direction
• eDiscovery is now increasingly considered
a part of the process
Purpose of Practice Note 17 (1)
• Metadata may be discoverable and must
be preserved
• Encourages the exchange of information
electronically
• Printing discouraged
• Scanning and electronic exchange
preferred
• Conversion to PDF preferred
Purpose of Practice Note 17 (2)
• Parties to meet, discuss and agree upon a
discovery plan at a very early stage
• Parties to meet and confer about the
document management protocols
• Pre-Discovery Conference Checklist
• Parties may be required to address these
and related issues at an early Directions
Hearing
Good Records, Good Evidence
Be prepared for regulatory investigation or litigation
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Assess readiness, identify needed action
Know the organisation
Learn about the systems
Learn about the internal policies and controls
Evaluate the information management systems
Have a plan
Feel confident that any relevant documentation will be
tendered into evidence
What to Expect
• Metadata at the forefront
• Scrutiny in producing evidence
– issue sanction/adverse inference
– prevent some evidence being adduced
– reversal of burden of proof
– all or part of defence or statement of claim
struck out
– criminal sanctions/liability
Role of Counsel
Ask the right questions to access the
relevant information
• Instruct all relevant people to produce all files
• Identify and communicate with key players and
IT personnel
• Locate and safeguard relevant files, laptops,
electronic records, backup media, etc.
• Stop all disposal under NAP
• Institute controls
Recordkeeping, Evidence and
Discovery
Comply with document retention policies
• Audit, revise and enforce
• Risks spoliation sanctions
• You must produce responsive information,
even if you could have destroyed it
Conclusion
• The Evidence Act 2008 simplifies the
introduction of documentary evidence
• Authenticity is not inferred
• Processes must be documented and
adhered to
• Know the organisation and its
recordkeeping practices
Further reading
• Advice on Evidence and Public Records, PROV
www.prov.vic.gov.au
• Records in Evidence (National Archives of
Australia)
tiny.cc/uHqYC
• Introduction to the Uniform Evidence Act in
Victoria: Significant Changes
www.justice.vic.gov.au/emanuals/IntroUEA/default.htm
Further reading
• Practice Note 17, Commonwealth
www.fedcourt.gov.au/how/practice_notes_cj17.htm
• Victorian Supreme Court Practice Note 1 of 2007
tiny.cc/2sQe9
• The Sedona Conference
www.thesedonaconference.org
• Electronic Evidence, Document Retention &
Privacy (Malleson Stephens Jaques)
www.mallesons.com/publications/2006/Mar/8367966w.htm
Questions
Julie Savoie
Julie.Savoie@prov.vic.gov.au
www.prov.vic.gov.au