In the late 1990s and early 2000s, there were a number of cases in which the Crown had made disclosure in electronic form but the defence sought production of hard copies. The Crown clearly has some discretion regarding the form in which disclosure is made, so these cases tended to turn on their facts. The key issue was whether the defence was, “meaningfully able to properly use the information … to rebut the Crown’s evidence and arguments and make all decisions required to exercise his or her right to make full answer and defence”. Usually, hard copies would be ordered by the court only if the format of the electronic disclosure was unworkable or particularly unwieldy.
A case that stands out among these "hard copy" judgments is a decision of the Ontario Provincial Court called R. v. Obront (1998), 39 W.C.B. (3d) 340. The case involved a complex fraud prosecution where the Crown had provided disclosure in electronic format. The defence sought hard copies of all of the disclosure. The submission of the defence was that some of the lawyers were “computer illiterate”. The Court held that it would be unfair to force defence counsel to train themselves in the use of computers or force the accused to pay for reproducing copies of all of the documents. Hard copies of the disclosure were thus ordered produced.
The "computer illiteracy" plea may have worked in 1999 - just. Does it hold any currency with courts today?
The answer is a resounding no, and with good reason. Computer literacy is now commonplace and expected. It is a necessary part of commerce. It is a necessary part of document management in almost any business. It is rare to find a lawyer who is unable to use a computer. It is practically unheard of amongst lawyers below the age of 50. In 2007, an admission of "computer illiteracy" in a case involving huge numbers of documents thus borders on an admission of incompetence.
Tellingly, a few years ago the CBA Code was amended to include the following commentary in Chapter II, which deals with competence: "Competence involves more than an understanding of legal principles. It involves an adequate knowledge of the practice and procedures by which those principles can be effectively applied. To accomplish this, the lawyer should keep abreast of developments in all areas in which the lawyer practices. The lawyer should also develop and maintain a facility with advances in technology in areas in which the lawyer practices to maintain a level of competence that meets the standard reasonably expected of lawyers in similar practice circumstances" [emphasis added].
Cases in which counsel seek to force the Crown to provide hard copies of disclosure are growing much less frequent. GFN expects that they will all but disappear in the next few years. A recent judgment in B.C., R. v. Greer, 2006 BCSC 1894, points the way.
In Greer, the Crown had made disclosure in electronic form. One of the defence counsel applied for an order that the Crown pay for laptop computers, software and computer training in the use of electronic disclosure, or in the alternative provide hard copies of the 250,000 pages of documents that constituted disclosure. Justice Powers had little trouble dismissing the bulk of the application. He ruled that counsel are expected to be familiar with the use of computers and electronic disclosure, and that computers and document management software should be part of defence counsel's overhead as opposed to something that the Crown must finance.
In dismissing the application Justice Powers made a further point that bears stressing. Not only is counsel expected to be able to use elctronic disclosure, but disclosure made in electronic format is of much more use to defence counsel than would be hard copies of the same material. This point is really the key holding in Greer. Anyone who has worked on a document-heavy case knows that keeping track of the information in an efficent and effective way can only be accomplished through document management software. In such cases, the failure to use computers constitutes a failure to provide competent service to one's client.
A last point. The computer illiterate counsel in Obront was Eddie Greenspan. Greenspan is counsel for Conrad Black on fraud-related charges to be tried in Chicago in March of this year. Black's case is unquestionably document-heavy. Is there any chance that Greenspan is using only paper copies of disclosure? Is there any chance that the U.S. prosecutor has provided the defence team with computers, software and training? One suspects not. If counsel isn't able to work with computers or lacks document-management software, the answer is not to bring a disclosure application; it's to decline any cases involving a substantial body of disclosure.
