E-Discovery and Judicial Involvement in Australia

Project Counsel is the sister site to The Posse List, both run by the ubiquitous Gregory Bufithis. Project Counsel’s web site carried an article on 25th February with the title In Australia, e-Discovery and enhanced judicial involvement come of age . That is a high ratio of interesting key words to me, with “Australia”, “e-Discovery” and “enhanced judicial involvement” all being hot topics.

The article summarises a look taken by Australian law firm McCulloch Robertson at the development of active court involvement in the management of cases generally and electronic discovery in particular. It includes many elements in common with those which we either have or are promoting in England & Wales following the Jackson Report on Litigation Costs. The general aim is the reduction of the cost of litigation and minimising unnecessary delays. It is some consolation to me, following the recent side-lining of our draft e-Disclosure Practice Direction and ESI Questionnaire, that the introduction of the equivalent in the Federal Court of Australia (originally Practice Note 17, now CM 6) was as long drawn-out and painful a process as we are finding it here. Australia got there in the end, a little over a year ago. Our draft Practice Direction took account of the arguments and difficulties experienced in Australia amongst other places.

Doubtless we will get there in the end, and catch up with not just Australia but Singapore and Canada, both of which introduced also new e-Discovery rules in 2009. We used to lead the world in such things, but that was true also of cricket and economic prosperity.

As I have mentioned before, HHJ Simon Brown QC, the judge who gave the significant eDisclosure judgment in Earles v Barclays Bank Plc [2009] EWHC 2500 (Mercantile) (08 October 2009) , is due to speak in at the Ark Group eDiscovery conference in Sydney on 9 and 10 March .  The chairman of that conference is Eddie Sheehy, CEO of Nuix. I know both of them and predict that an interesting discussion will take place. Tom Gelbmann, co-founder (with George Socha) of the Electronic Discovery Reference Model (EDRM) and co-author of the Socha-Gelbmann Electronic Discovery Survey, is also speaking at the conference.

I will be in Australia later this year, speaking at the Chilli IQ e-Discovery conference on 9 and 10 June and finding out at first hand what the experience is of lawyers and others who have now had over a year to make use of the new practice note. I said when I first spoke there, two years ago, that we came as much to learn as to talk, and Simon Brown is setting up court visits and meetings with judges with exactly that in mind.

The movement which led to the e-Discovery practice note in Australia was not driven solely by considerations of domestic litigation. Much dispute work is portable between jurisdictions, and Australia has good cause to fear the development of efficient forums elsewhere, not least in Singapore. London has become rather complacent about its historic role as the forum of choice for international litigation, much of which can choose to walk away if London becomes too expensive. That represents a significant chunk of invisible exports, a factor which has perhaps been overlooked as the Civil Procedure Rule Committee frets over the implications for UK provincial litigation of a more stringent e-Disclosure and case management regime.

Like it or not, most commercial correspondence and documents are created electronically, exist only in that form, and can be dealt with economically and efficiently in electronic form. That needs management by judges. The Australian practice note set a low hurdle — 500 discoverable documents — as the trigger for invoking the practice note. Our draft practice direction allowed far greater flexibility for the judge to decide what is appropriate, as well as excluding by default many cases for which the practice direction and questionnaire would have been unduly onerous. We simply cannot go on pretending that electronic documents do not exist.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Australian courts, Case Management, Discovery, eDisclosure, eDiscovery, EDRM, Electronic disclosure, Judges, Litigation, Litigation costs, Litigation Support, Lord Justice Jackson, Nuix, Posse List, Singapore. Bookmark the permalink.

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