The purpose of the TeCSA IT Protocol is to facilitate and encourage the exchange of information amongst users of the Technology and Construction Courts through the use of information technology.
The TeCSA Protocol consists of the following guidelines and explanatory notes. The purpose of the Protocol is not to lay down strict rules, but rather to indicate to users of the Protocol the likely areas of agreement they will want to come to. The Articles should be read in conjunction with the comments, as they provide more detail and guidance for the users of the TeCSA Protocol and in some cases indicate the range of possible choices available to users.
The TeCSA protocol is intended to facilitate the exchange of documents and information by means of IT. It is not limited to use within the strict confines of litigation commenced before the Technology and Construction Court, but could include any type of dispute resolution procedure conducted or agreed in a type of dispute that could, at some stage or for some purpose, be heard by the TCC. Such dispute resolution procedures are diverse and include
- ADR (mediation, early neutral evaluation, etc.)
- Pre-litigation steps undertaken by the parties, whether in pursuance of some approved Pre-Action Protocol, such as the Pre-Action Protocol for Construction and Engineering Disputes, or as otherwise agreed by the parties
The TeCSA Protocol is principally designed to facilitate the agreement of the parties on matters relating to the exchange of documentation and thus it is not limited in its usefulness to proceedings actually before a court. Indeed, the usefulness of the Protocol is greatly enhanced if the parties agree its use at an early a stage as possible and come to agreement on the various matters set out in this Protocol. This is especially true where, for example, an arbitration agreement reserves a power for the parties to put preliminary questions to the Court or where it envisages the possibility of an appeal on a point of law. In that case, it would be in everyone’s interests if the basic agreements required by this Protocol are made at the commencement of the arbitration, rather than waiting until the first reference to the court or the hearing of an appeal. The same goes, obviously, for other types of dispute resolution.
The TeCSA Protocol is principally concerned with the means of exchange of documents, and nothing in this Protocol is intended to conflict with or replace anything in the Civil Procedure Rules or any order made by the court or by any other person authorised to make an order such as an arbitrator or adjudicator.
As it is concerned with documents, the TeCSA Protocol addresses in particular the exchange of the following types of document, with the observation that what follows is a non-exclusive list:
- Statements of Case
- Requests for Further Information
- Lists of Documents
- Scott Schedules
- Affidavits and Witness Statements
- Experts’ Reports
The basic principle of the TeCSA protocol is that at least these types of document should be served in electronic format as well as in hard copy. The exchange in electronic form includes exchange on some physical medium (such as magnetic or optical disk) as well as exchange by e-mail.
The TeCSA Protocol is designed to facilitate the exchange of the formal documents produced by the parties, and the obvious omission from the above list is any mention of ordinary correspondence between the parties’ legal representatives. There is no reason why this cannot also be conducted by e-mail, but for reasons of convenience and evidence, it is strongly recommended that all such correspondence be sent by hard copy as well as by e-mail.
Some comment on the first paragraph is perhaps also necessary. The TCC is very technology aware, and indeed the courts are likely to rely to a far greater extent on technology, and consequently the parties must be careful not to agree anything that is in contravention of what the court has specifically ordered. On the other hand, where the parties are in a position to do so, they may consider raising with the court any agreements they have reached and asking the court to make an order concerning the agreed areas.
At the earliest opportunity, the parties must agree the necessary formats agreed to be used in the implementation of this TeCSA Protocol. These formats include at least agreement on the following items:
- Physical media
- Document formats
- Image formats
- Type of e-mail link
The remainder of this Protocol looks at each of these items and makes recommendations for the subject of agreement between the parties.
Where the parties envisage exchange of documents on physical media, they should agree the type and format of those physical media. Some documents may be larger than the capacity of most floppy drives (1.44 mb) and it is advisable to agree some other type of media, such a Zip disks, Jaz disks, the equivalent from Syquest, CD-ROMs and so on.
It is the duty of the sender to wipe any free space (including the file slacks) to ensure that there is no risk of other documents being read from the disk. It is similarly the duty of the sender to ensure that no privileged material is included inadvertently on the disk.
It is the duty of the recipient not to try to restore any deleted files on the disk and to comply with existing law and professional rules as to the inadvertent receipt of privileged documents.
It is the further duty of the recipient to check any documents received by whatever means for viruses (and other forms of contamination) and the sender will have no duties in this regard.
The venerable floppy disk is fast going out of fashion, and is in any case somewhat unreliable compared with more modern equivalents. So-called “super-floppies” now available are cheap and reliable alternatives. The most common format is that developed by Iomega, which makes a series of devices at a very affordable price and with drivers for the common operating systems. It is sometimes important to be precise about formats – for example, Zip 100mb drives will not accept 250mb disks, and Jaz 2gb disks will not fit into 1gb drives. Similarly, optical disks formatted in the new DVD format may not yet be commonly accepted, but in time will doubtless become much more acceptable.
It is still not commonly known that deleting a file from a disk does not permanently destroy it. There are easily available software programs that can restore deleted files in their entirety. There is one story of a solicitor’s firm that ran such a program on a removable disk received from the other side that contained a witness statement and found the drafts of that statement on the disk, which the sender had deleted. Equally, there are programs that thoroughly wipe over the disk space occupied by deleted files to ensure that they cannot be restored. The TeCSA Protocol runs a middle course, by requiring the sender to take positive steps to ensure wiping of free space and checking of the contents, and on the recipient not to try to restore files that had previously been deleted.
Above all, the TeCSA Protocol does not try in any way to change the law on privilege, or the professional duties of solicitors in the event that privileged materials are inadvertently sent or received.
Finally, a risk with all exchanges of electronic documents (on physical media or otherwise) is that someone, somewhere may have infected them with a virus. The Protocol takes the view that, with virus-checking software almost ubiquitous, the recipient should be under the sole duty in this regard.
When agreeing document formats, the parties should always attempt to agree to exchange documents in the *.pdf Adobe Acrobat format unless there is good reason to agree some other format. Where the parties do agree on some other format, it should be in the format of a popular application – preferably Word for text and Excel for spreadsheets. The latest version of such applications should be used wherever possible, and if it is not possible, the precise version level should be agreed. If Word cannot be agreed for documents, the parties should give serious consideration to saving documents in Rich Text Format rather than using a less well known word processing application.
There is a good reason for the marked preference for Adobe Acrobat: the Reader is available free of charge from Adobe’s website (www.adobe.com) and is available for most operating systems. It is the commonest format on the web to-day for documents and thus well within most firms’ capabilities. It should be noted that a purchase of the software is necessary to produce documents in this format, but it is likely that modern firms will already have this, and the cost is not great, nor is the skill required to create documents in *.pdf format.
The great advantage of the Acrobat format is that it is standard, however it is printed. One of the great problems with exchanging documents in word processor formats is that, as soon as they are printed, different formatting comes to light and page breaks can start to go awry, causing problems. The other problem is that, while filters between the various applications have improved tremendously in recent years, there are still many problems, especially where text contains complex formatting instructions, such as revision marks or footnotes.
When agreeing scanned image formats, the parties should always attempt to agree to store and exchange such images in the TIFF format unless there is good reason to agree some other format. Where there is good reason to agree some other format, it should be some other commonly available format which allows a good level of compression, such as the JPEG or GIF format. For all such formats, the parties should be careful to agree version and level of the format selected.
Scanned images apply in particular to documents that are scanned and stored as images. As with document formats, selecting a common and easily created and stored image format should be a priority. The TIFF format is now one of commonest on the internet and so is easy for IT departments to create and read. However, there are different formats even within the TIFF designation, so it is important to be absolutely sure that precision is used in agreeing the right format.
It is relatively rare now for parties not only to scan in documents but also to subject the document to optical character recognition (OCR). This makes the process of scanning much longer, and OCR software, although now markedly better than it was some years ago, is still inaccurate, and can be thrown completely by manuscript notes or other markings on documents. It is unlikely that OCR will be a point of contention between the parties. Where documents are OCR’d, the result is generally output into a word processing format: the comments therefore in Article 5 apply.
Where e-mail is to be used as a means of communication, the parties should normally use the internet as the means to do so. They should only set up a dedicated line where there is good reason to do so. Where there is some risk of breach of confidentiality or there are genuine security concerns, the parties may wish to consider the use of some sort of encryption.
E-mail is now ubiquitous and needs no explanation. The only consideration parties might want to include in their discusions is whether to set up a dedicated link. This should be agreed only in cases where there was some particular concern over security or confidentiality. While there is great publicity given to problems of security on the internet, and it must be admitted that interception of e-mails is a risk, there are just as many, if not more, risks inherent in using a fax machine, where the risks include mistyping the recipient’s fax number and unintended eyes seeing the fax at the recipient’s end.
In any event, the use of encryption should create a secure means of communication between the parties. Methods of encryption such as PGP are well known and relatively easy to implement.
Where the parties agree that they will use a database for the recording of information, and it is envisaged that they will want to exchange information in that database, they must agree a format for the database. This should normally be a commonly available application (such as Microsoft Access). Otherwise, the parties should agree to exchange information extracted from a database in DBIV format (*.dbf) unless there is good reason to do otherwise.
The parties may in larger cases each use a database for the recording of information about documents, and this can certainly speed up the process of disclosure. It may be that they wish to exchange information in some sort of database format, and where they do so, it is important that some format should be chosen that allows data to be shared. There are many database formats, but they all tend to be able to save data to a format known as DBIV – this is, as it were, the common language of all databases. Parties should not select a database unless it is capable of saving data in this format. Naturally, where the parties are agreed on the same type of database application software, they should also agree the version number to eliminate problems of conversion.