find the latest legal job
Corporate/Commercial Lawyers (2-5 years PAE)
Category: Corporate and Commercial Law | Location: Adelaide SA 5000
· Specialist commercial law firm · Long-term career progression
View details
Graduate Lawyer / Up to 1.5 yr PAE Lawyer
Category: Personal Injury Law | Location: Brisbane CBD & Inner Suburbs Brisbane QLD
· Mentoring Opportunity in Regional QLD · Personal Injury Law
View details
Corporate and Commercial Partner
Category: Corporate and Commercial Law | Location: Adelaide SA 5000
· Full time · Join a leading Adelaide commercial law firm
View details
In-house Legal Counsel & Commercial Lawyers
Category: Corporate and Commercial Law | Location: All Sydney NSW
· Providing lawyers with flexibility and control over when they work, how they work and who they work for.
View details
In-house Legal Counsel & Commercial Lawyers
Category: Corporate and Commercial Law | Location: All Melbourne VIC
· Providing lawyers with flexibility and control over when they work, how they work and who they work for.
View details
Villain or white knight?

Villain or white knight?

Promoted by

While technology has created an evidentiary mountain, it also o­ffers strategies to minimise the burden of discovery.



AUSTRALIAN LITIGATION practice rests upon a principle of disclosure that assumes all relevant evidence should be available to all parties prior to a hearing. To this end, the process of discovery has traditionally required each party to disclose “every document (that) relates to the matters in question in the action” (Peruvian Guano Case – 1882).


This was reasonable, and feasible, in circumstances where transactions were comprised of, and evidenced by, collections of paper documents. However, technology and our human and commercial responses to that technology have progressively caused potentially relevant records of transactions to grow and, more recently, to explode.


Today, with terabytes of data stored easily and with Cloud Computing making storage cheap and accessible, the volume of material to be reviewed for discovery can be enormous. The traditional test has become impractical if conventional techniques are applied, and courts have responded by reducing, or even eliminating, the “burden of discovery”.


The judicial trend is towards a tailored approach to discovery that, in some jurisdictions, results in no order for disclosure prior to service of evidence. This approach is underpinned by an assumption that discovery should not be undertaken as a matter of course and that, where undertaken, it should be tailored to maximise efficiency and effectiveness. Clearly, the court’s objective is to facilitate a disclosure protocol that accommodates the litigants’ and the court’s need for evidentiary completeness, without imposing a burden that is disproportionate to the value and significance of the claims.


The risk to practitioners, litigants and the court is the perception that this must result in a containment versus completeness dichotomy. And by application of traditional containment strategies (for example, the simple use of keywords, author names or timeframes), containment does, in fact, come at the expense of completeness. The reality is that technology, while on the one hand the villain in this piece through its role in causation of the evidentiary mountain, is also the white knight, offering strategies to minimise the evidentiary burden, without compromising completeness of disclosure.


Using current generation tools, such a concept (rather than keyword) driven analysis, email threading and de-_duplication, lawyers and the Court have the opportunity to focus on relevant evidence and to minimise inefficiencies while absolutely maintaining evidentiary completeness. These Internet-driven tools are available to all practitioners and the cost is modest, given their effectiveness.


While evidentiary volume minimisation is assumed to be the goal, rather than the spin off benefit of technologically-assisted review, evidentiary completeness is jeopardised. This has the potential to undermine just outcomes in the pursuit of cheaper process. The dichotomy of containment versus completeness is false and should be vigorously resisted.


Kylie Petersen is a director, consulting & services, at international.

Like this story? Read more:

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

NSW proposes big justice reforms to target risk of reoffending

The legal budget breakdown 2017

Villain or white knight?
lawyersweekly logo
Promoted content
Recommended by Spike Native Network
more from lawyers weekly
Young humanitarian lawyer California-bound
A young Australian lawyer will be travelling to the US next year for a prestigious nine-month study ...
Jackie Rhodes
Dec 12 2017
Report sheds light on LGBTQI inclusion in law firms
A recent report has revealed the varying perceptions on LGBTQI diversity and inclusion in the Austra...
Women in business
Dec 12 2017
Annabel Crabb headlines Women in Business Forum
Political journalist Annabel Crabb has appeared at the Coleman Greig Lawyers Women in Business Forum...
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'...
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...
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 & ...