The way in which discovery is carried out differs between jurisdictions. For example, in the Federal Court of Australia, documents required to be disclosed are documents of which the party is aware, after a reasonable search [2]. In the Supreme Court of Victoria, a litigant must discover any documents relating to any question raised by the pleadings [3]. Arguably, the volume of documents can potentially be much larger depending upon the way in whichdiscovery must be undertaken and the more documents the greater the potential cost of discovery. The courts are increasingly questioning the necessity to include large volumes of documents in discovery rather than focussing on documents that are integral to the dispute.

Since 1999 [4], the courts have had initiatives designed to reduce the cost of discovery by utilising technology and such practice notes have become streamlined in the last eleven years. The market is producing tools that greatly assist inthe reduction of the number of potentially relevant documents, such tools being known as “early case assessment”, however most lawyers are ignorant about the benefits these tools bring to discovery and the enormous potential cost savings to their clients.

The way in whichdiscovery is carried out, along with the impact technology has on discovery is to be considered by the ALRC, whose task is to inquire upon and report on by 31 March 2011:

* Thelaw, practice and management of the discovery of documents in litigation before federal courts;

* Ensuring that cost and time required for discovery of documents is proportionate to the matters in dispute

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*  Limiting the overuse of discovery, reducing the expense of discovery and ensuring key documents relevant to the real issues in dispute are identified as early as possible

* The impact of technology on the discovery of documents

The ALRC’s objective is to identify law reform options to improve the practical operation and effectiveness of discovery of documents. This involves considering alternatives to discovery, the role of the courts in managing discovery, costs issues such as cost capping and security for discovery costs as well as the sufficiency of current obligations on practitioners and parties to identify relevant material as early as possible.

In addition to consulting key stakeholders including relevant courts and the legal profession,recent reports [5], court initiatives, industry developments [6], recent case lawin the United States [7], United Kingdom [8], and Singapore [9], as well asrelevant Practice Guidelines, should all assist the ALRC and those making submissions, when considering the experiences of other jurisdictions.

In the meantime,litigators should be across the Federal Court Practice Note CM 6 - Electronic technology in litigation (Practice Note CM 6), the current passage of the Civil Dispute Resolution Bill 2010 (Cth), the Civil Procedure Bill 2010 (Vic) and theever increasing international developments, and how these will continue to impact those involved in the discovery process in Australia.

Practice Note CM 6 (originally PN 17), the purpose of which is to provide a framework and set outthe Court’s expectations in relation to the use of technology in the traditional discovery process. In addition to providing useful guidance in this jurisdiction in relation to electronically stored information (ESI) it has alsoprovided a point of reference for other jurisdictions [10].

It is becoming clear, that practitioners and their clients will increasingly be required to address the myriad obligations associated with the growing need to efficiently manage document-intensive litigation involving ESI and high and often disproportionate costs of discovery.

footnotes: 

[1] A Strategic Framework for Access to Justice in the Federal Civil Justice System, Access to Justice Taskforce, 2009

[2] Federal Court Rules, Order 15 r2(3)

[3] Supreme Court Rules, Order 29.02

[4] Both the Supreme Court of NSW and the Supreme Court of Victoria issued practice notes on the Use of IT in Civil Litigation

[5] Review of Civil Litigation Costs, 2009.

[6] Sedona Conference, Electronic Discovery Reference Model

[7] Pension Comm.of the Univ. of Montreal Pension Plan v. Banc of Am. Secs, No. CIV. 05-9016, 2010 U.S. Dist. LEXIS 1839 (S.D.N.Y. Jan. 11, 2010)

[8] Digicel (St.Lucia) Ltd & Ors v Cable & Wireless Plc & Ors [2008] EWHC 2522 (Ch)(23 October 2008); Earles v Barclays Bank Plc [2009] EWHC 2500 (Mercantile) (08 October 2009); Goodale & Ors v The Ministry of Justice & Ors [2009] EWHC B41 (QB) (05 November 2009)

[9] Deutsche Bank AG v Chang Tse Wen and others [2010] SGHC 125

[10] Imminent reform in prospect for Australian discovery process

Written by: Allison Stanfield, CEO, and Geoffrey Lambert, consultant, both from e.law Asia Pacific

http://www.elaw.com.au