International Association of Procedural Law

International Association of Procedural Law XI. World Congress on Procedural Law: Procedural Law on the Threshold of a New Millennium 23 rd - 28 th of August 1999 in Vienna Prof. Helmut Rüßmann (Germany) / Prof. Wouter de Vos (South Africa) The Challenge of Information Society: Application of Advanced Technologies in Civil Litigation and other Procedures A. Introduction and Issues The topic in question concerns the application of advanced technologies in civil litigation and other court proceedings. We will consider the current use of advanced technologies as well as plans and ideas for future applications. Under advanced technologies we understand digitised, electronic communication and information retrieval, exchange and storage. We are concerned with the use of intranet and internet techniques within judicial proceedings, however, facsimile communication does not lie within the focus of our interest. The scope is defined by civil litigation and other court procedures in which civil and commercial matters arise. In Germany these other court procedures may be court procedures on non-contentious matters for example. In the main we are interested in public registers for real estate or company information and the respective shift from paper to electronic format. Aside from such questions of technical realisation we have to deal with the legal issues arising out of the application of advanced technologies before they are actually introduced into civil litigation and other processes. Form requirements, requirements to appear in court, and access to electronic files should be examined and the significance of data protection issues (data privacy) should not to be underestimated. B. Civil Litigation Some time ago we developed a scenario for civil litigation applying advanced technologies 1 : The plaintiff operates an electronic databank at the company offices in Saarbrucken. The defendant in Saarheim regularly makes use of the plaintiffs electronic services. On 1 April 2001 the electronic data processing system informs the plaintiff that the defendant has not paid his bill for January despite two reminders. Therefore the plaintiff applies via a telecommunication over the public telephone network for a formal demand to be made by the Regional Court in Saarbrucken. He signs this application with an electronic signature. The Regional Court's Administrative Office checks the electronic signature on its computer, gives the application a reference, creates an electronic file and electronically transmits a demand to the defendants email address. The defendant checks his online banking system and discovers that payment for the services he made use of in January was made on 17 February 2001. The defendant therefore sends an objection to the Regional Court. The Regional Court automatically sends out news of the defendant's objection to the demand for payment to the plaintiff. After the plaintiff's application for judicial proceedings has been 1 The scenario has been developed by Jörg. W. Britz, research assistant at my chair. It has been presented for the first time at the annual meeting of the Wissenschaftliche Vereinigung für Internationales Verfahrensrecht 1995 in Rostock. See Rüßmann, Moderne Elektroniktechnologie und Informationsbeschaffung im Zivilprozeß, in: Schlosser (ed.), Die Informationsbeschaffung für den Zivilprozeß, Band 8 der Veröffentlichungen der Wissenschaftlichen Vereinigung für Internationales Verfahrensrecht, 1996, p. 137 (138 f.) and Britz, Urkundenbeweisrecht und Elektroniktechnologie, 1996, p. 15 f. We are obliged to Philippa Tame for the translation. 1

processed by the Regional Court's computer, the case is handed over to the County Court in Saarheim. The judge responsible in Saarheim creates a new electronic file under a new reference on his computer and selects a standard form for the plaintiffs grounds of complaint. The computer completes the form with the relevant information and transmits it to the plaintiff. The plaintiff then copies the information regarding his January accounts stored on his computer onto the special ground for complaint form, on which the customer information is available as evidence. The plaintiff then sends this completed form via modem to the County Court. The judge copies the ground for complaint form into his electronic file and telecommunicates the document to the defendant as well. In the same way the defendant sends a retort to the complaint regarding his payment and submits an electronic copy of his transferral order and bank statement from his online banking system as evidence. This report and annexed evidence of payment is forwarded to the plaintiff. The oral negotiations are conducted in a conference room by the County Court judge with the plaintiff and defendant via a teleconferencing telephone system and monitor. The parties reiterate their claims and the judge makes sure of the laws of performance and evidence with a modern Legal CD Rom package and consults an online databank of previous decisions and literature on the subject. The result is discussed with the parties who place their claims again. After the decision is announced it is transmitted to the parties electronically. If requested, the plaintiff may receive a full justification for the judges decision. The electronic file is transferred into an archive index and is also saved onto an external databank with its own inventory. This is what civil litigation could look like in the future, however Germany and South Africa still have some way to go. Some steps have already been taken in Germany, for example regarding automated summary proceedings for an order to pay debts or the electronic land and real estate register. Furthermore, in the United States of America very specific and detailed plans exist outlining how litigation in the federal courts 2 could be completely digitised. For the purpose of a unified presentation of the national reports we suggest that primarily the question should be raised as to whether or not there are plans for completely digitising proceedings. Secondly the application of advanced technologies in parts of a civil litigation following the path of a common litigation should be considered. This would encompass the initiation of the proceedings, the internal case and file management, the preparation of the hearing of the case by judges and attorneys, the establishment of the factual basis, the trial and evidentiary procedures, the research in norms, statutes, precedents, and other authorities, up to the final decision and its effects. I. Completely Digitised Procedures: Electronic Case Files What completely digitised civil proceedings could look like may be seen in the discussion draft submitted by the Administrative Office of the United States Courts ELECTRONIC CASE FILES IN THE FEDERAL COURTS: A Preliminary Examination of Goals, Issues, and the Road Ahead. This document can be accessed and downloaded through the internet (http://www.uscourts.gov/casefiles/toc.htm). On request, I can provide you with a disk with all files in pdf-format or even send you a printout of the main document. 2 ELECTRONIC CASE FILES IN THE FEDERAL COURTS: A Preliminary Examination of Goals, Issues, and the Road Ahead, Discussion Draft March 1997, edited by the Administrative Office of the United States Courts. 2

II. Use of Advanced Technologies in Parts of the Proceedings Following the Path of a Common Litigation If there are neither completely digitised proceedings nor plans for the introduction of such proceedings then we will have to address the question whether advanced technologies are at least applicable or thought to be applicable and relevant in the future in parts of the civil proceedings. The possible areas where the technology could be applied within the German system of civil litigation are outlined below. 1. Initiating the Proceedings In Germany the document which initiates the civil litigation process is a complaint or a motion for summary proceedings for an order to pay debts. The question is whether, and if so under which conditions and provisions, the filing of the complaint or motion can be done using electronic media be it telecommunication or the handing over of a disk to be copied into the file to be handled by the court. German legal practice allows the filing via telecopier. There is no provision for electronic filing via email, ftp, or disk. Such filing has not yet taken place due to the lack of suitable equipment in our courts. How does one consider and go about filing the initiating document in your country electronically? Has this method been adopted and set up already? Are there plans for such a system in the future? How is the issue of authenticity of the document dealt with, i.e. how can you tell whether the document genuinely stems from the person it says it is from and has not been altered on the way to the court? Are there any legal obstacles to the admittance of electronic filing? What kind of legal issues have to be solved before the implementation of such an electronic system of initiation? 2. File Management and Case Management Does the file and case management rely on (only) written material or on electronic material as well? In which manner is the internal organisation (handling of hearings and rooms, dockets, communication with parties, attorneys and witnesses) constructed and documented: in written files and books or in electronic files and timetables as well? If the file management is done electronically in which way is the authenticity of the electronic case file assured? How can it be guaranteed that the written and electronic files contain exactly the same information? Who is granted access to the electronic files (judges, attorneys, parties, the public?)? 3. Delivering the Initiation Document (Service) Can the initiating document (and other documents) only be delivered by handing over or putting down a written document or is it possible that the same can be achieved by email or electronic file transfer? How is it assured that in the case of electronic serving the document is delivered without alteration? Could the public service provided by the internet (World Wide Web) be utilised in order to improve the process of giving notice compared to the traditional public service on the courts bulletin board? 4. Preparation of the Hearing By preparation of the hearing we mean the communication between the court and the parties, their attorneys and possible witnesses. To what extent does one think about applying advanced technologies (email) to handle the communicative needs? Are there legal obstacles to the use of modern telecommunication? Which legal issues have to be solved before introducing and allowing modern telecommunication between judges, parties, attorneys and 3

witnesses? May the judge use information from the internet to supplement the facts of the case at hand? 5. Hearing and Evidence Do you allow or think about hearings and testimony without physical presence of the persons involved using video conferencing techniques? What kind of legal obstacles have to be faced before introducing such proceedings? Which legal issues have to be solved? How does your law of evidence treat electronic documents? 6. Legal Information (Information on Legal Authorities) Do your courts and judges have access to legal authorities as norms, statutes, precedents, and other authorities contained in electronic media (online or offline)? Do the parties and their attorneys have a chance to participate in the use of such information media? 7. Final Decision Do you provide for electronic help in drafting and reviewing the final decision? Do judges use word processing programs and do they have access to the electronic files of their opinions? Or is a judge forced to make arrangements with the court administration or the typing personnel if he wants to make changes to a decision not yet rendered? Some decisions require immense calculations. Do you provide for standard (spreadsheet) or specialised programs to manage these calculations? If so, may parties and their attorneys participate in using the calculation tools? In which way are the parties notified of the final decision? May the decision be handed down serviced by electronic means? Is the publication of the final decision in a generally accessible media (like the internet) possible, usual, or provided for? Which legal obstacles are to be taken into account before publishing the decision electronically? Which issues have to be solved for future use of electronic publishing? 8. Complex Litigation Proceedings Are there special rules in your country governing complex litigation, i.e. litigation with complex relations and many participants? 9. Appeal In appeal proceedings we are confronted with the same issues as in proceedings of first instance. In addition we will have to ask whether and to what extent the court of appeals may use the electronic files of the court of first instance. 10. Execution Execution is a proceeding on its own as far as executing force against a debtor is concerned. To keep our reports manageable, we should not deal with execution of judgements. C. Other Judicial Proceedings (Non-contentious Matters) As regards other judicial proceedings we should concentrate, for instance, on public registers handled by courts as in Germany with respect to the real estate register (Grundbuch) and the commercial register (Handelsregister). The practical importance of electronic registration entries, whose existence or non existence is furnished with public and good faith notions, increases in an environment that can be accessed anywhere and at any time. Positive side effects of the maintenance of public records and registers in electronic form also include the ability to handle data efficiently and effectively and the huge reduction of space needed to 4

store records. These positive effects are possibly met by new dimensions of data protection issues. Effectuating information retrieval poses the question as to who may be granted access to the information. Finally, we will be confronted with the same issues of digitising the entire proceedings from the motion to make an entry, the decision making process to finally having the entry performed. 1. Electronic Record and Register Does your country provide for public records and registers, whose contents are furnished with public and good faith, to be held and managed in electronic instead of printed or written format? Is there an electronic form of the register even if the official register is still kept in writing? Who is granted access to the registered information? 2. The Registration Proceedings Is it provided for that the registration proceedings are performed electronically? Is it possible to apply for an entry into the register or the deletion of an existing entry by electronic filing? Does the registering court manage its files and communication with the participants electronically? Which legal obstacles have to be considered before applying advanced technologies? Which legal issues have to be solved? 5