I have already reported that the Australian Attorney General has commissioned a review of  discovery laws. We now have sight of the formal Terms of Reference which embed the purpose of the review firmly in the title – “to improve access to justice”.

Their brevity may mislead one into thinking that the Terms of Reference are narrow in ambit. As with Lord Justice Jackson’s terms of reference, the opposite is true – this review is as broad in scope as it could be. Note the recurrence, even in this short document of the phrase “as early as possible”:

…requiring parties to identify and disclose critical documents as early as possible

…ensure key documents relevant to the real issues in dispute are identified as early as possible

…obligations on practitioners and parties to identify relevant material as early as possible

You cannot miss the point there, can you?

Early identification and limitations on the scope of disclosure lie behind the proposed new UK approaches, the former by the use where appropriate of the ESI Questionnaire to be annexed to the new Practice Direction, and the latter by recommendations made by Lord Justice Jackson for tighter control by case managing judges and by the “menu option” in his proposed new Rule 31.5A. This will replace the default option of standard disclosure with a “no default” position which will force parties and judges to apply their minds to what is really needed for this case.

The terms of reference refer specifically to the impact of technology on the discovery of documents. Many lawyers think of technology in this context solely in terms of people reviewing documents on screen with, perhaps, a vague notion that there are esoteric functions collectively called processing which some techie people have to do first. The focus has got to change – it is at the processing stage that the decisions are made and implemented which directly affect both the volume of documents to be reviewed and the speed with which this stage is done. Speed connotes more than just raw processing power, important though that is. This is where the identification is made as early as possible of the critical documents, the key documents relevant to the real issues in dispute and the relevant material, the key factors set out in the terms of reference.

Processing cannot but be technical in nature, but it is not just a back-room function performed by technicians. Developers have recognised that the lawyers need to use these applications, and making their interfaces lawyer-friendly has been a specific design criterion – this was the primary driver for Nuix 3, for example, to take a recently-released and appropriately Australian example.

Lord Justice Jackson expressly linked the availability of technology with his recommendations as to e-discovery. Master Whitaker’s judgment in Goodale v Ministry of Justice emphasised the availability of technology solutions to aid identification and selection BEFORE review. The Australian discovery review must do likewise.

My thanks to Geoffrey Lambert of e.law for drawing my attenton to the Terms of Reference.

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