Use of electronic trial bundles in the civil courts: the pros and cons

In a recent construction dispute we opted to present our supporting documents to the court entirely electronically, in the form of an electronic trial bundle (e-bundle). As a solution, it made sense: we had been ordered by the court to carry out wholly electronic disclosure ahead of the trial, so all of the documents we needed were available in electronic format already. And, given the volume of documents exchanged between both parties, the prospect of a hard copy bundle wasn't particularly appealing.

On balance, use of an e-bundle did make life easier for us and was the lesser of two evils when compared to a hard copy system. However, there are both advantages and disadvantages to the use of a wholly electronic system during the trial.

Before you sign up to use of an e-bundle, ask yourself:

• are all the documents for the trial bundle available in electronic format?
• is your barrister able to use the technology?
• is the provider of your e-disclosure platform able to assist with a transfer to your e-bundle platform?
• are the client and your team aware of the potential for glitches during the trial?
• is your bundle already fully-formed and ready to be published on the platform, as the platforms currently available on the market are not well-suited to 11th hour tinkering?

E-bundles: the pros

Use of an e-bundle at trial has many advantages over a traditional hard copy trial bundle.

Volume

Fewer papers to cart around. Everyone involved in the case can have access to a full set of the bundle.

Annotation

Easy to tag, highlight text and share comments on drafts and documents. You can also set up specific groups such as counsel team, legal team or expert team, and then bring up or hide the comments made by each group or specific members of a particular group.

Searchable

Ability to carry out keyword searches to find specific documents, or relevant bits in the transcript.

Transferability

Depending on the software used, the provider may be able to assist you with the transfer of documents from your e-disclosure platform to your e-bundle platform – and to update the bundle references.

Hyperlinking

The platform we used allowed us to hyperlink to other documents and exhibits within the e-bundle.

E-bundles: the cons

However, e-bundle software still has some drawbacks.

Connectivity

You need to be online in order to add comments or save highlighting.

Annotation

Sharing comments can often get messy so that comments can be missed. The use of software does not avoid the need for careful project management.

Preparation

While your service providers do the 'techie' work, they will require an upload schedule which tells them what to do and how to tab the documents. They also need the hyperlink references. Although this may be straightforward if the trial bundle is finalised early, it becomes very difficult and leads to a lot of insertions if the bundle is subject to later changes.

Insertions also have to be given by 8pm the night before if they are to be available in court the next day.

Cost

There are the obvious additional costs of employing a third party to set up and maintain the e-bundle.

Technical issues

The usual technical issues that can arise when software is used have the potential to slow down the court process. For example, at one point during our recent experience it took 30 seconds for our leading counsel's annotated version of a document to appear on his computer. In the heat of cross-examination, this could easily have led to a loss of momentum.

David Greenwood is a construction disputes expert at Pinsent Masons, the law firm behind Out-Law.com.