New court rules for handling electronic documents are expected in Australia before the end of 2007. They will bite on as few as 500 documents, there will be a court-appointed expert to manage cases, and there is a massive investment in the infrastructure of the courts. The UK will be left behind.
The reasoning and the arguments are the same as in the UK and the US. Articles about the pending rules somehow imply that Australia is behind us in this area, which is not my own impression as to e-discovery. Australia is way ahead of the UK in investment in the civil courts
Three things catch the eye in what I have read. One is the very low threshold which seems to be accepted as the level at which parties must consider using electronic means to capture and exchange document information. One commentator foresees courts stamping on the printing of 500 e-mails and requiring them to be handled electronically.
Another is the use of a court-appointed expert to stand between the parties and control how the electronic evidence is managed. The related ideas of a pre-discovery conference and of a document management protocol to facilitate exchange of documents and document information, are standard, at least in concept. Australia will be going one further if the idea of having a formal independent expert is included in the rules.
The third difference between them and us is that there is an enormous investment in hand in the civil justice system. One article says that this involves introducing automated case tracking, electronic lodgement, filing and document management systems, videoconferencing facilities, secure court search tools and even an electronic courtroom for hearings in remote locations.
As I suggest above, my own experience gives me no reason for mocking the Australian way of doing things. The boot will be firmly on the other foot when this round of investment is made. Australia will perhaps be not far ahead of us as to the handling of disclosure between parties, but their courts will be streets ahead.
I am reminded of an article I wrote for the Society for Computers & Law in March 2004 following a big meeting at the Law Society. The subject-matter of the meeting was government neglect of the civil justice system and the launch of LiST’s Guidelines for the Use of Technology in any Civil Matter. The Master of Rolls himself was amongst the glittering cast on the stage for the first part. My article opened thus:
The Times is collecting lawyer jokes at the moment. Have you heard the one about the minister who promised a case management system for the civil courts by 2002? So had Lord Justice Brooke, the Judge in Charge of Modernisation. He obviously collects government promises and captures them on PowerPoint slides like a lepidopterist. He showed us a few. They were very detailed and specific, like a butterfly’s wings – and were just as ephemeral as a butterfly, here today and gone tomorrow.
Nearly four years more have passed since I wrote that. LiST’s draft practice direction and its related documents – a draft technology questionnaire and two levels of data exchange agreements – lie ignored, although we may be about to see the dust blown off them. Lord Justice Brooke has retired, although rumour has it that Sir Henry Brooke is still actively engaged behind the scenes in the work he spent so much of his career working tirelessly to promote.
But proper investment in the courts remains out of sight. There are many senior judges and, indeed, senior civil servants in the Courts Service who wish it were otherwise and work to that end. The civil justice system actually makes a profit, so it is said, thanks to the enormous increase in court fees, but the profit is whisked away to places where it will yield more political capital.
When they are about to pull so far ahead, the slightly self-deprecating tone of the Australian commentary seems unnecessarily harsh.
I am obliged to Jonathan Maas of DLA Piper for drawing my attention to articles about the Australian Federal Rule proposals. Those articles are at: