An Inquiry into the law, practice and management of the discovery of documents in litigation before Australian Federal Courts was launched by the Attorney-General in May 2010. I wrote about it at the time (see Terms of Reference for Australian Discovery review), and see it as one of the most important pending developments in discovery (and therefore necessarily in electronic discovery / e-disclosure) in hand anywhere in the world at the moment. The other, of course, is the UK’s e-disclosure practice direction and electronic documents questionnaire which will take effect on 1 October 2010.
These two initiatives have significance, even for the US as it struggles with the implications, in time and in costs, of handling electronic documents proportionately. I am moderating a panel at the Masters Conference in Washington on 4 to 6 October which will consider these UK and Australian developments and will suggest that even the US has something to learn from them.
The duty of consulting and reporting on discovery falls on the Australian Law Reform Commission (ALRC). The ALRC has set up a blog called Discovery of Documents in Federal Courts to report on its progress, to raise subjects for discussion and to capture comments. The Attorney-General’s Terms of Reference can be found there; as I said in my original post, the reiterated use of the words “as early as possible” points the enquiry in what is obviously the right starting place.
The crossover between the Australian initiative and our own practice direction is obvious. Take a look at the article Key messages in preliminary consultations with stakeholders posted by Rosalind Croucher (President of the ALRC) of 3 August. The first theme which she identifies is that “the parties should be working more openly and collaboratively in developing the terms of discovery”. That, of course, is the primary function of the electronic documents questionnaire invoked by the new UK practice direction.
The second point made in the article concerns judicial management, of which Rosamond Croucher says this:
…there are calls for courts to play a stronger role in scrutinising applications for discovery and to refuse unjustified requests – and for judges generally to be more consistent in doing so. This raises questions about what threshold test the courts should apply to an application for discovery and what particular considerations the court should take into account when determining whether discovery is justified. Should the benchmark for imposing discovery obligations be as broad as ‘the interests of justice’ or is a specific cost/benefit analysis more appropriate?
Both of these approaches – the idealism of justice and the mathematics of cost/benefit – are important; neither, perhaps, seems attractive to a lawyer who just wants to get the case heard and to a judge who just wants to crack through his case management list. Both, in fact, come down to “doing what is right for the circumstances”. New skills are needed here: collaboration without appearing to sell your client down the river; arguing for narrower discovery whilst resisting the implication that you have something to hide; learning how to assess costs and risks without making a major exercise out of it. The difficulty for the judges is not so much the mechanics and the technology but the need to make quick assessments: does this lawyer know what he is talking about? Is he genuinely limiting the scope of discovery for good reason or concealing something? What is the minimum I need to see to find the facts?
All these things require a framework of rules and procedures. The outsider’s perception of the US is that its courts and practitioners are excessively hung up on the rules and procedures, losing sight of the real objectives in the process. That may not be fair on many lawyers and judges, but the perception cannot be denied. I certainly do not imply that we do things any better in Australia and the UK, but I do think we have the opportunity to avoid the worst excesses of US discovery if we make the best of the opportunities offered by our respective pending rules changes. We are in the position of one who watches another struggling in a morass; the route we take as a result may prove no better, but at least it will not be the same route.
Rosalind Croucher’s other article Alternatives to discovery — pre-action requirements gives another example of the benefits of leaving others to take the lead. In this case, the morass consists of pre-action protocols, and the UK’s experience is the awful warning which Australia seeks to avoid. You can read the article for yourself; part of my purpose in pointing you to it is as illustration of the value of watching what happens in other jurisdictions. The UK, Australia, Canada and Singapore have long watched each other’s developments; Hong Kong is beginning to do so. Until recently, no one in the US showed much interest in what was going on outside its own backyard, assuming (as in so many other areas of life) that the rest of the world automatically looked to the US. That is changing; I do not think I would have volunteered to run a non-US international panel at the Masters conference two years ago.