Managing Discovery: discovery of documents in

federal courts

Patrick CollinsSenior Legal Officer

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The Hon R McClelland MPAttorney-General

Terms of Reference

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The Commission’s objective is to identify law reform options to improve the practical operation and effectiveness of discovery of documents

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‘…bills, cross-bills, answers, rejoinders, injunctions, affidavits, issues, references to masters, masters’ reports,

mountains of costly nonsense, piled before them’.Charles Dickens, Bleak House (1852)

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The real voyage of discovery consists not in seeking new landscapes but in having new eyes

Valentin Louis Georges Eugène Marcel Proust (10 July 1871 – 18 November 1922) French novelist, critic, and essayist

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The trigger for review

‘The cost of discovery continues to be very high, and often disproportionate to the role played by discovered documents in resolving disputes.’

Australian Government Attorney-General’s Department, Access to Justice Taskforce, A Strategic Framework for Access to Justice in the Federal Civil Justice System (2009)

Other activity

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‘Procedures and costs should be proportionate to the nature of the issues involved.’

R Jackson, Review of Civil Litigation Costs: Final Report (2009)

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Other activity• Victorian Law Reform Commission, Civil Justice Review, Report 14 (2008)

• British Columbia Justice Review Task Force, Civil Justice Reform Working Group, Effective and Affordable Civil Justice: Report of the Civil Justice Reform Working Group to the Justice Review Task Force (2006)

• Chief Justice’s Working Party on Civil Justice Reform (Hong Kong), Civil Justice Reform: Final Report (2004)

• Lord Woolf, Access to Justice: Final Report (1996)

Evidence-based law reform

‘Deprecation of the legal system and failed efforts at reform often proceed on the basis of anecdote and assumption.’

Australian Law Reform Commission, Managing Justice: A Review of the Civil Justice System, Report 89 (2000)

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Evidence-based law reform

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Empirical analysis

• Discover costs in proportion to:– total litigation expense– value of what is at stake– range and complexity of issues

Evidence-based law reform

• Utility of discovery documents in:– narrowing the issues in dispute– encouraging settlement of disputes– judicial determination of disputes

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Qualitative research

e-newsletters

Evidence-based law reform

e-newsletters

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Community consultations

• Face-to-face meeting

• Teleconference

• Blog

• E-newsletter

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Appointed experts

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Advisory Committee

• Robert Alexander, General Counsel, ACCC• Dr Peter Cashman, Director, Social Justice Program, University of Sydney• Stuart Clark, Chief Operating Officer, Clayton Utz• The Hon Justice Ray Finkelstein, Federal Court of Australia• David Gaszner, Thomsons Lawyers• Sue Laver, General Counsel, Telstra• Catherine Leslie, Special Counsel Tax Litigation, AGS• The Hon Kevin Lindgren QC, formerly a judge of the Federal Court of Australia• Bernard Murphy, Maurice Blackburn• Professor Les McCrimmon, School of Law and Business, Darwin University• Professor Christine Parker, Faculty of Law, University of Melbourne• Matt Minogue, First Assistant Secretary, Attorney-General’s Department

Appointed experts

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Part-time Commissioners

The Hon. Justice Arthur Emmett The Hon. Justice

Bruce Lander

The Hon. Justice Susan Kenny

The Hon. Justice Berna Collier

Evaluating discovery rationale

fact-finding

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fairness to the parties

decision-making

‘Discovery helps to ensure that parties in the adversarial process can proceed on an equal footing and without ambush, and that relevant materials are before the court’.

Australian Government Solicitor, Submission DR 27, 11 February 2011

• A

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Federal Court of Australia Act 1976

Part VB—Case management in civil proceedings 37M The overarching purpose of civil practice and procedure provisions

(1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:(a) according to law; and(b) as quickly, inexpensively and efficiently as possible....

(3) The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.

Judicial case management

Discovery in mega-litigation

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The breadth and complexity of issues disputed in mega-litigation set broad boundaries for the discovery of documents.

Information management

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Betfair v Racing NSW

The records of over 2.5 million customers occupied some 21 terabytes of memory, growing at 70 gigabytes per day.

Seven Network Limited v News Limited [2007] FCA 1062

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...borders on the scandalous!

The parties spent about $200 million on legal costs.

Seven’s damages claim was between $195 and $212 million.

Some stakeholders estimated that discovery costs are typically around 20% of legal costs.

Discovery Costs: A Barrier to Justice

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the just resolution of disputes according

to lawas quickly, inexpensively and

efficiently as possible

Competing tensions

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requesting party vs discovering party

right to present

the case

time and money

client vs lawyer

duty to client duty to court

parties vs court

more active judges

more information about the case

Limiting discovery to crucial issues in dispute

• Preparing a list of issues,in order of importance

• Outlining crucial issues at an initial directions hearing

• Outlining the evidenceon which the parties will rely at trial

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Practical discovery plan

Practice Note CM 6: Electronic Technology in Litigation

parties to discuss and agree upon a practical and cost-effective discovery plan

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Judicial scrutiny of discovery

Federal Court Rules

...discovery only if it is necessary for the just determination of issues in the proceeding.

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Judicial case management powers

• Costs powers:

upfront payment of estimated discovery costs

• Discovery masters:

appointed by the court to report on managing discovery

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Judicial education

Training in e-discovery technology

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Electronic Document Management Systems

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For information about ALRC work, copies of speeches and

presentations ALRC website – all papers available online

(free):

www.alrc.gov.au

Email: info@alrc.gov.au

GPO Box 3708, Sydney 2001

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