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All quiet on eDiscovery

All quiet on eDiscovery

THE FEDERAL Court might be ready for the digital age, but it’s not yet willing to commit to a concrete commencement date for its Court Note outlining new rules on the discovery of electronic…

THE FEDERAL Court might be ready for the digital age, but it’s not yet willing to commit to a concrete commencement date for its Court Note outlining new rules on the discovery of electronic documents.

The Court Note, similar to the Federal Rules of Civil Procedure released in the United States in 2006, has far-reaching consequences for the means to electronic discovery — eDiscovery — across Australia. By digitalising the discovery process, practitioners will be required to agree on document formats and other factors determining the parameters on eDiscovery.

Upon the announcement and release of the draft of the Court Note last year, 1 July was slated as the official commencement date, and 1 October marked as its mandate. With that July date now gone, some industry experts appear none the wiser as to when exactly the legal technology will be mandated as part of the discovery process in litigation.

When Lawyers Weekly contacted the Federal Court for further information, the primary contact was not available to speak with us before press deadline, but a spokesperson suggested that internal review of the draft note was still in progress. “The likely introduction date at this time, to allow completion of consultation, is not before 1 October 2008,” she said.

According to Annette Hughes, a partner with Allens Arthur Robinson, the consultation was likely to be about the provisions on the pre-discovery conference checklist: “Once those are settled and everyone is happy with them it will be released,” she said.

Those provisions are possibly the biggest changes the rules are likely to present to lawyers. Exactly what will be expected of practitioners as part of the pre-discovery conference, in which both sides of a case will determine the parameters on how electronic documents will be discovered, is still being confirmed.

Hughes said the commencement date had been a bit of a mystery, but that correspondence from the Federal Court had indicated further details would appear online shortly, because consolidation on the draft was still in progress.

At Blake Dawson, Emma Forbes, special counsel in the legal technology group, said her clients have not expressed much concern over the changes, but appear confused as to what will be required. “When you try and advise them on what they should be doing so that it’s not going to be a nightmare if this [online eDiscovery] happens, it makes them a little anxious,” she said.

Forbes added that at the Victorian Society for Computers and the Law’s recent eDiscovery conference, delegates were still confused about the commencement date on the rules.

But no matter what the commencement date, both Hughes and Forbes are positive about the imminent changes. Hughes said: “The aim is to make parties get a grip on discovery early, in a way that can be cost effective, and to also agree on the format that everyone is using.

“The other impact from the court’s perspective will be that they can manage and control the format of what’s exchanged and produced for the court,” Hughes said.

See our eDiscovery feature in the Best Practice section on page 22

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