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?