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Modern Communications and Information Technology and the Taking of Evidence

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Electronic Technology and Civil Procedure

Part of the book series: Ius Gentium: Comparative Perspectives on Law and Justice ((IUSGENT,volume 15))

Abstract

While the role of information technology for the administration of courts, for filing, docket and calendar purposes is obvious, this paper is going to address the role of information technology in the taking of evidence. Here we find information technology not just in a supporting role. Rather, employing information technology for the taking of evidence goes go the “heart” of the trial and may affect the “cultural core” of civil litigation.

This paper is divided into two parts. The first part is designed to provide an overview of possible fields of application of information technology for the taking of evidence. These include discovery proceedings, preparation for trial, technologically augmented litigation, modern courtroom technology, video conferencing, court records, scanning of documents as well as more advanced technology such as virtual trials and cyber courts.

The second part of this paper contains a discussion of “pros and cons” associated with these new methods, and will try to assess how they impact the “culture” of civil litigation. The new technologies are examined against the background of traditional principles of civil procedure. The author suggests that, while certainly extremely valuable as a supporting tool, new technologies did not bring about a fundamental change to the structure of civil proceedings. To find a meaningful integration of traditional principles of civil procedure and modern technology is a challenge for the future, for practitioners and academic lawyers alike.

“The student will not fail to observe the symmetry and beauty of this branch of the law, under whatever disadvantage it may labour from the manner of treatment”.

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Notes

  1. 1.

    S. Greenleaf, A Treatise on the Law of Evidence (1899), 730.

  2. 2.

    See the contributions in this volume, Chap. 2 by Richard Marcus and Chap. 12 by Bernhard Rüßmann.

  3. 3.

    See United States v Yates, 391 F 3d 1182 (11th Cir. 2004); see also Amendments to Rule 26 (B) of the Federal Ruls of Criminal Procedure (April 29, 2002) (statement of Scalia, J.). On the other hand, in an often-cited case, the Florida Supreme Court has permitted satellite testimony of an eye-witness from Argentina. See Harrell v State, 709 So 2d 1364 (Fla 1998).

  4. 4.

    F. I. Lederer, An Introduction To Technologically Augmented Litigation, http://wwww.courtroom21.net/About_Us/Articles/auglit.html [05.11.2011].

  5. 5.

    See the Chap. 2 in this volume by Marcus.

  6. 6.

    Lederer, op. cit.

  7. 7.

    See www.DepoStream.com

  8. 8.

    R. Porter, “The Next Step: Taking Depositions Online,” in 37 Trial 12 (2001).

  9. 9.

    Statement by Allen Williams, cited by Porter, op. cit.

  10. 10.

    Lederer, op. cit.

  11. 11.

    See http://www.i-dep.comor DepoCast of http://LegalSpan.com.

  12. 12.

    See R. Porter, “The Next Step: Taking Depositions Online,” in 37 Trial 12 (2001).

  13. 13.

    See R. Porter, op. cit, who discusses software solutions such as lexisONE and CertifiedMail.com. If only text is being transmitted, secure communication is already state oft he art. See again Porter, op. cit.

  14. 14.

    See, e.g. http://www.e-jury.net oder www.virtualjury.com.

  15. 15.

    Such virtual “trial notebooks” (e.g. Trial Director) are commercially available from a number of companies.

  16. 16.

    See F. I. Lederer, “The Courtroom as a Stop on the Information Superhighway,” in Australian J.L. Reform (1998); F. I. Lederer, An Introduction to Technologically Augmented Litigation. http://www.courtroom21.net/About_Us/Articles/auglit.html [05.11.2011].

  17. 17.

    For a list of vendors of electronic evidence presentation technology, see http://www.ncsconline.org/d_tech/vendorlist/vendbyproduct.asp?id=19 ; for vendors of courtroom technology generally, see http://www.ncsconline.org/d_tech/vendorlist/vendbyproduct.asp?id=16 [05.11.2011].

  18. 18.

    Lederer, op. cit. cites an example where in a lawsuit for damages of 1 million $ plaintiff had incurred costs of $2 million. The California Court of Appeals, Science Applications International Corp. v. Superior Court of San Diego, 46 Cal Cal. Rptr. 2d 332, decided in 1995 that “high power computer support” does not constitute recoverable litigation expenses. The court voiced concern that “[i]f costs are routinely awarded for high-power technology, most parties will be unable to litigate.”

  19. 19.

    See F. I. Lederer, op. cit. An Introduction to Technologically Augmented Litigation.

  20. 20.

    See F. I. Lederer, op. cit. “The Effect of Courtroom Technologies on and in Appellate Proceedings and Courtrooms”, in 2 Journal of Appellate Practice & Process 251.

  21. 21.

    These include Indiana, Mississippi Montana, New Mexico, North Carolina und Texas (P. A. Talmadge, “New Technologies and Appellate Practice,” in 2 Journal of Appellate Practice & Process 363 [370 FN 10]). For e-filing in federal courts, see J. B. Hillis, “A Review of Electronic Court Filing in the United States,” in 2 Journal of Appellate Practice & Process 319 (321).

  22. 22.

    See Lederer, op. cit.

  23. 23.

    Yukiyo Ltd v Watanabe, 111 F 3d 883 (Fed Cir 1997): “[…] there is much to commend the filing of a CD-OM brief […]. By no means […] does the court intend to discourage the filing of CD-ROM briefs under appropriate rules and standards.”

  24. 24.

    Rodime P.C. v Seagate Technology 45 U.S.P.Q.2d 2023 (Fed. Cir. 1998).

  25. 25.

    After several circuit courts the U.S. Supreme Court permitted such filings in Harris v. Salomon Smith Barney, 120 S.Ct. 2180 (2000). See also J. M. Snow, “CD-ROM Briefs: Must Today’s High Tech Lawyers Wait Until the Playing Field Is Level?,” in 17 The John Marshall Journal of Computer & Information Law, 615 (1999); F. X. Gindhart, “Documents, Transcripts, Exhibits are on Hand in Hypertext Briefs,” in 217 New York Law Journal 5 (1997); M. D. Fibison, “CD-ROM Brief Foreshadows the Electronic Courtroom: The Visual Power of a Good Witness Can Sway a Judge’s Decision,” in U.S. Bus. Litig. 17 (1997).

  26. 26.

    M. Devin, “CD-ROM Briefs: Are We There Yet?,” in 2 Journal of Appellate Practice & Process 377, estimates that it had been used only in two dozen cases.

  27. 27.

    M. Devin, op. cit. 2, Journal of Appellate Practice & Process 377 (391).

  28. 28.

    U.S. v. Rockwood. Lederer, op. cit. “The Effects of Courtroom Technologies,” in 2 Journal of Appellate Practice & Process 251 (266).

  29. 29.

    See http://www.courtroom21.net/.

  30. 30.

    F. I. Lederer, S. H. Solomon, “Courtroom Technology – An Introduction to an Onrushing Future,” in Proceedings of the Fifth Court Technology Conference (Williamsburg: National Center for State Courts, 1997); F. I. Lederer, op. cit. The Courtroom As a Stop On the Information Superhighway.

  31. 31.

    F. I. Lederer, op. cit. The Courtroom As a Stop On the Information Superhighway.

  32. 32.

    An example is the University of Arizona Courtroom of the Future Project (http://www.law.arizona.edu/it/court/courtrm/html/).

  33. 33.

    For the law in the United States see F. I. Lederer, “The Road To the Virtual Courtroom?” http://www.isrcl.org/Papers/Lederer.pdf [05.11.2011] FN 59 ff.

  34. 34.

    Federal Rules of Civil Procedure P. 43 (a):

  35. 35.

    See e.g. s. 128a German Code of Civil Procedure.

  36. 36.

    Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters, OJ L 174, 27.6.2001, pp. 1–24.

  37. 37.

    An introduction into this topic is provided by F. I. Lederer, “Videoconferencing: Has the Future Arrived?” http://lawtechnews.com/december00/litigation_support_p133.html, F. I. Lederer, op. cit. The Road To the Virtual Courtroom?

  38. 38.

    F. I. Lederer, op. cit. The Road To the Virtual Courtroom?

  39. 39.

    F. I. Lederer, op. cit. The Road To the Virtual Courtroom?; F. I. Lederer, “The Effect of Courtroom Technologies,” in 2 Journal of Appellate Practice & Process 251 (268); see also E. Touissaint, “Minnesota Court of Appeals Hears Oral Argument via Interactive Teleconferencing Technology,” in 2 Journal of Appellate Practice & Process 395 (2000).

  40. 40.

    In 1996 in United States v Salazar two of the five judges sat in different states and took part in the hearing by way of videoconferencing. In addition, an amicus curiae supplemented his brief by electronic submissions. See F. I. Lederer, loc. cit. The Courtroom As a Stop On the Information Superhighway. An additional example is provided by F. I. Lederer, “The Effect of Courtroom Technologies,” in 2 Journal of Appellate Practice & Process 251 (269).

  41. 41.

    F. I. Lederer, “The Effect of Courtroom Technologies,” in 2 Journal of Appellate Practice & Process 251 (272 FN 6). In Italy six cameras are used for the video recording (not for a videoconference). See M. Fabri, “Introduction: State of the Art, Critical Issues, And Trends of ICT in European Systems,” in Justice and Technology in Europe, ed. M. Fabri and F. Contini (2001) 13 FN 27; D. Carnevali and M. C. DiCocco, “An Innovation Process Embedded in a Strict Institutional Setting: ICT in the Italian Judicial System,” in Justice and Technology in Europe, ed. M. Fabri and F. Contini (2001) 209.

  42. 42.

    See the article “Judge holds Pretrial Hearing Online,” http://www.apbonline.com/cjsystem/justicenews/2000/06/02/hearing0602_01.html/. The judge stressed that the case (which was about the installation of windows) did not pose particular data protection concerns.

  43. 43.

    See B. Miller, “Court Reporting. From Stenography To Technology: Will court reporters evolve from stenographers to information managers, or be replaced by new technologies?” http://www.govtechnet/magazine/gt/1996/mar/courts/courts.phtml [05.11.2011].

  44. 44.

    F. I. Lederer, op. cit. The Road To the Virtual Courtroom? FN 31.

  45. 45.

    See P. Bauer, “A Show Case for the Future: E-Justice in Austria,” in Justice and Technology in Europe, ed. M. Fabri and F. Contini (2001) 55. See also http://www.speechmag.com. In the United States “voice writing” is used only by way of a court reporter who repeats everything that is being said, speaking into a special type of mask. F. I. Lederer, op. cit. The Effect of Courtroom Technologies, in 2 Journal of Appellate Practice & Process 251 (258).

  46. 46.

    See section 212a, Austrian Code of Civil Procedure, section 160a, German Code of Civil Procedure.

  47. 47.

    D. Carnevali and M. C. DiCocco, “An Innovation Process Embedded in a Strict Institutional Setting: ICT in the Italian Judicial System,” in Justice and Technology in Europe, ed. M. Fabri and F. Contini (2001), 197 (209).

  48. 48.

    I. Sanchez and P. A. González, “Towards the Integration of Case Management And Case Law: ICT in the Spanish Judicial System,” in Justice and Technology in Europe, ed. M. Fabri and F. Contini (2001), 257 (271).

  49. 49.

    For digital audio and video recordings, see F. I. Lederer, op. cit. The Road To the Virtual Court­room, and F. I. Lederer, loc. cit. The Courtroom As a Stop On the Information Superhighway 4.

  50. 50.

    See F. I. Lederer, “The Effects of Courtroom Technologies,” in 2 Journal of Appellate Practice & Process 251 (257, FN 19).

  51. 51.

    An example is the TIMARO software which was developed in 1997. See F. I. Lederer, op. cit. The Courtroom As a Stop On the Information Superhighway 4.

  52. 52.

    F. I. Lederer, “The Effect of Courtroom Technologies,” in 2 Journal of Appellate Practice & Process 251 (256).

  53. 53.

    Commercially available software combines this with an examination of the witness‘ credibility by way of a voice stress analyzer, a development which poses considerable concerns. See M. Devin, “CD-ROM Briefs: Are We There Yet?,” in 2 Journal of Appellate Practice & Process 377 [385].

  54. 54.

    See F. I. Lederer, “The Effect of Courtroom Technologies on and in Appellate Proceedings and Courtrooms,” in 2 Journal of Appellate Practice & Process 251 (2000).

  55. 55.

    See, e.g., Judge Learned Hand in Petterson Lighterage & Towing Corp. v. New York C.R. Co., 126 F 2d 992, 994 f (2d Cir. 1942): “[D]ecisions [are] legion that when a judge ha[s] seen and heard the witnesses his conclusions [will] prevail unless clearly wrong”, see also the graphic expression in Gavin v. State, 473 S 2d 952, 955 (Miss. 1985): “The trial judge who hears the witnesses live, observes their demeanor and in general smells the smoke of the battle is by his very position far better equipped to make findings of fact which will have the reliability that we need and desire.”

  56. 56.

    Some appellate courts have indicated that they might review the findings of facts more closely, although most courts appear to be reluctant to do that. See R. C. Owen, M. Mather, “Thawing Out the ‘Cold Record’: Some Thoughts on How Videotaped Records May Affect Traditional Standards of Deference on Direct and Collateral Review,” in 2 Journal of Appellate Practice & Process 411 (416).

  57. 57.

    J. A. Maher, “National Center for State Courts, Do Video Transcripts Affect the Scope of Appellate Review?,” in An Evaluation in the Kentucky Court of Appeals (1990).

  58. 58.

    See s. 280 Austrian Code of Civil Procedure.

  59. 59.

    For imaging in complex litigation see National Center for State Courts, http://www.ncsc.dni.us/ncsc/briefing/image.htm/.

  60. 60.

    See F. I. Lederer, “Courtroom Technology From the Judges‘ Perspective,” http://www.courtroom21.net/About_Us/Articles/judicial.html [05.11.2011].

  61. 61.

    Compare the impressive examples given by F. I. Lederer, “The Road To the Virtual Courtroom,” who mentions cases with 30.000 and 1.5 million documents and 500 files on each side.

  62. 62.

    Such cameras are often referred to as “Elmos” after the well-known manufacturer ELMO. However, similar technology is also offered by a wide range of other companies, including DOAR Communications, WolfVision, Samsung and Sony.

  63. 63.

    See F. I. Lederer, “Technology-Augmented Courtrooms: Progress Amid a Few Complications, or the Problematic Interrelationship Between Court and Counsel,” in 60 New York University Annual Survey of American Law 675 (2005) at 676.

  64. 64.

    See F. I. Lederer, op. cit.

  65. 65.

    Berlin Court of Appeals (Kammergericht), judgment of August 11, 2000, 5 U 3069/00, JurPC Web-Dok.249/2000. According to this judgment, § 809 BGB can provide a basis for inspection of computers in order to find out whether copyrighted software is being used.

  66. 66.

    W. R. Leibowitz, “E-Evidence Demands New Experts,” in National Law Journal, March 9, 1998; see also F. I. Lederer, op. cit. The Road To the Virtual Courtroom FN 55.

  67. 67.

    Court of Appeals M. Frankfurt, January 1, 1999, 22 W 58/98, ZAP EN-Nr. 796/99.

  68. 68.

    See also F. I. Lederer, op. cit. The Courtroom As a Stop On the Information Superhighway 7 (“slight expansion of the doctrine of judicial notice of facts which are readily verified”).

  69. 69.

    See F. I. Lederer, op. cit. The Road To the Virtual Courtroom?

  70. 70.

    For a discussion of online dispute resolution in general, see G. Kaufmann-Kohler, T. Schulz, Online dispute resolution: challenges for contemporary justice (2004).

  71. 71.

    State of Michigan, 91st Legislature, Regular session of 2001, Act No. 262 (enrolled house bill No. 4140), which entered into force on January 9, 2002. See also http://www.michigancybercourt.net

  72. 72.

    Sec. 8001 Abs 2 leg. cit. “The purpose of the cyber court is to […] (a) Establish judicial structures that will help to strengthen and revitalize the economy of this state”. Paragraph 2 (d) expressly mentions “technology-driven companies.”

  73. 73.

    Compare the Maryland Business and Technology Court Task Force Report, http://www.courts.state.md.us/finalbtreport.pdf/ [05.11.2011].

  74. 74.

    Sec. 8001 Abs 2 (h): “Establish virtual courtroom facilities, and allow the conducting of court proceedings electronically and the electronic filing of documents.” Sec 8015: “All matters heard in the cyber court shall be heard by means of electronic communications, including, but not limited to, video and audio conferencing and internet conferencing among the judge and court personnel, parties, witnesses, and other persons necessary to the proceeding.”

  75. 75.

    H. Rüßmann, “Herausforderung Informationsgesellschaft,” in Procedural Law On the Threshold of a New Millennium, ed. CLC/IAPL, (2001) 205 (206).

  76. 76.

    H. Rüßmann, op. cit.

  77. 77.

    H. Rüßmann, “Herausforderung Informationsgesellschaft,” in Procedural Law on the Threshold of a New Millennium, ed. CLC/IAPL, (2001) 206.

  78. 78.

    An additional difficulty results from the fact that giving false testimony by way of videoconferencing may not be punishable as perjury in some states. See F. I. Lederer, op. cit. The Road To the Virtual Courtroom?

  79. 79.

    In the United States a videoconference is felt not to be suited in cases where credibility of the witness is an issue. See Porter: op. cit. The next step: Taking depositions online, in 37 Trial 12.

  80. 80.

    F. I. Lederer, op. cit. The Road To the Virtual Courtroom? Reports a medical malpractice case before the New Jersey Superior Court, in which the plaintiff who was completely paralysed, was observed by a retired judge during his testimony in order to prevent improper interference.

  81. 81.

    See Porter: op. cit. The next step: Taking depositions online, in 37 Trial 12 mwN; F. I. Lederer, “The Effect of Courtroom Technologies,” in 2 Journal of Appellate Practice & Process (260); A. Ramasastry, “Government-to-Citizen Online Dispute Resolution: A Preliminary Inquiry,” http://writ.news.findlaw.com.comentry/20020206_ramasastry.html

  82. 82.

    This is the scenario discussed by F. I. Lederer, op. cit. The Road To the Virtual Courtroom?

  83. 83.

    Lederer, op. cit. 2 Journal of Appellate Practice & Process 251 (273), highlights that it is important “to give justice a pride of place and to enshrine it in physical form”.

  84. 84.

    See B. Heß, “Aktuelle Perspektiven der europäischen Prozessrechtsangleichung,” in JZ 2001, 573 (582).

  85. 85.

    H. V. Samborn, “Plenty of Seats in Virtual Courtrooms,” in 86 ABA J 68 (2000); S. McEwen, “TV or Not TV: The Telecast of Appellate Arguments in Pennsylvania,” in 2 Journal of Appellate Practice & Process 405 (2000); for Florida see http://www.wfsu.org/gavel2gavel/, for Wisconsin www.courts.state.wi.us/WCS/scoa_search.html. See also Northwestern University’s Oyez-Project, http://www.oyez.org. – A list of American courts publishing information on the internet is provided by the National Center for State Courts (http://www.ncsc.dni.us/NCSC/TIS/Tis99/Courtbus.htm)

  86. 86.

    http://www.putz-rae.at/start.htm. The case was a test case the outcome of which was important for approximately 500 potential plaintiffs. The documents were shown in pdf format.

  87. 87.

    See Science Applications International Corp. v. Superior Court of San Diego, 46 Ca. Rptr. 2d 332, 338 (Ct. App. 1995): “If a party litigant chooses unwisely to expend monies in trial presentation in excess of the value of the case, utilizing advanced methods of information storage, retrieval, and display, when more conventional if less impressive methods are available, the party must stand his own costs.”

  88. 88.

    For Austria see section 280, Code of Civil Procedure.

  89. 89.

    This may be different for litigants such as institutional creditors who file complaints frequently.

  90. 90.

    See F. I. Lederer, op. cit. “The Effect of Courtroom Technologies,” in 2 Journal of Appellate Practice & Process 251 (265).

  91. 91.

    H. Rüßmann, “Herausforderung Informationsgesellschaft,” in Procedural Law on the Threshold of a New Millennium, ed. CLC/IAPL (2001) 206.

  92. 92.

    See also Wouter de Vos, in Procedural Law On the Threshold of a New Millennium, ed. CLC/IAPL, 254: “The most appropriate solution for the future of civil litigation may, therefore, be to strive towards an integration of the best features of paper and electronic systems”.

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  1. Civil and Commercial Law, Vienna University of Economics, Vienna, Austria

    Georg E. Kodek

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  1. , Department of Civil Procedure and Law So, University of Pécs Faculty of Law, 48-as tér 1, Pécs, 7622, Baranya, Hungary

    Miklós Kengyel

  2. Faculty of Law, Department of Civil Procedure and Law So, University of Pécs, 48-as tér 1, Pécs, 7622, Hungary

    Zoltán Nemessányi

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Kodek, G.E. (2012). Modern Communications and Information Technology and the Taking of Evidence. In: Kengyel, M., Nemessányi, Z. (eds) Electronic Technology and Civil Procedure. Ius Gentium: Comparative Perspectives on Law and Justice, vol 15. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-4072-3_13

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