find the latest legal job
Banking Associate - 1-6PQE - Allen & Overy
Category: Banking and Finance Law | Location: United Kingdom
· Banking Associate - 1-6 PQE - Allen & Overy
View details
Academic Dean and Head of School of the TC Beirne School of Law
Category: Other | Location: Brisbane QLD 4000
· An outstanding opportunity · Provide educational, research and organisational leadership
View details
Senior Property Lawyer I Commercial Litigator
Category: Property Law | Location: Arncliffe NSW 2205
· Rapidly growing law firm, working with a highly experienced team in a high growth industry across all areas of property and strata law
View details
Senior Property Lawyer I Commercial Litigator
Category: Property Law | Location: All Sydney NSW
· Rapidly growing law firm, working with a highly experienced team in a high growth industry across all areas of property and strata law
View details
Senior Property Lawyer I Commercial Litigator
Category: Property Law | Location: Sydney NSW 2000
· Rapidly growing law firm, working with a highly experienced team in a high growth industry across all areas of property and strata law
View details
ADVERTORIAL: Review of Discovery Laws to Improve Access to Justice

ADVERTORIAL: Review of Discovery Laws to Improve Access to Justice

The ALRC has been asked to undertake a wholesale review of the discovery process, including considering alternatives to discovery. Allison Stanfield and Geoffrey Lambert of e.law Asia Pacific write

The Australian Law Reform Commission (ALRC) has been asked to undertake a wholesale review of the discovery process, this includes considering alternatives to discovery. This review follows a 2009 report by the Access to Justice Taskforce[1] where itnoted the “high and often disproportionate cost of discovery and recommended a further inquiry on the issue”.

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

*  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

Like this story? Read more:

Book commemorates diamond milestone for WA law society

QLS condemns actions of disgraced lawyer as ‘stain on the profession’

NSW proposes big justice reforms to target risk of reoffending


ADVERTORIAL: Review of Discovery Laws to Improve Access to Justice
lawyersweekly logo
Promoted content
Recommended by Spike Native Network
more from lawyers weekly
Gavel, legal book, criminal lawyers
Jan 19 2018
Three criminal lawyers named NSW magistrates
The NSW Attorney-General has announced the appointment of three new local court magistrates. ...
Warning
Jan 18 2018
Lawyer highlights ‘unintended consequences’ on SSM estate planning
A succession lawyer has warned that the right for same-sex couples to legally marry could have a sub...
drug rehabilitation services available in rural and remote communities
Jan 18 2018
ALS survey shines spotlight on insufficient rehabilitation services
A new survey posted by the Aboriginal Legal Service (NSW/ACT) has revealed an alarming insight into ...
APPOINTMENTS
Allens managing partner Richard Spurio, image courtesy Allens' website
Jun 21 2017
Promo season at Allens
A group of lawyers at Allens have received promotions across its PNG and Australian offices. ...
May 11 2017
Partner exits for in-house role
A Victorian lawyer has left the partnership of a national firm to start a new gig with state governm...
Esteban Gomez
May 11 2017
National firm recruits ‘major asset’
A national law firm has announced it has appointed a new corporate partner who brings over 15 years'...
opinion
Nicole Rich
May 16 2017
Access to justice for young transgender Australians
Reform is looming for the process that young transgender Australians and their families must current...
Geoff Roberson
May 11 2017
The lighter side of the law: when law and comedy collide
On the face of it, there doesn’t seem to be much that is amusing about the law, writes Geoff Rober...
Help
May 10 2017
Advocate’s immunity – without fear or without favour but not both
On 29 March 2017, the High Court handed down its decision in David Kendirjian v Eugene Lepore & ...