The Australian Law Reform Commission published its final report Managing Discovery: Discovery of Documents in Federal Courts at the end of May. The net effect of the recommendations is conveniently set out in the final issue of the ALRC’s Discovery e-News:
The ALRC believes that the net effect of its recommendations will be that:
- judicial officers are encouraged and supported in their role as robust case managers;
- parties and practitioners will have a clearer understanding of what is expected of them in relation to discovery obligations;
- the scope of discovery will be defined more clearly and in the context of an understanding of how information is stored and can be accessed; and
- the clarity of expectations and certainty in obligations will help to maintain proportionality in discovery costs.
The key themes on page 10 of the summary will be recognisable to anyone interested in this area:
- while the reform trajectory in the Court was applauded, there were inconsistencies in practice across the bench;
- robust judicial case management is critical in facilitating the resolution of disputes in the Court;
- rigid rules of general application impose unwanted restrictions on judicial discretion;
- expectations of parties in the Court are not always clear—uncertainties that lead to inconsistency of practice and potentially an increase in costs; and
- there is an uneasy tension between the time and money that discovery can involve and the right of parties for a reasonable opportunity to present their case.
The ALRC is the world leader when it comes to setting out the facts and the arguments about discovery. Every stage of the production of this report has been clear and transparent, giving us along the way a very readable collation of the best thinking on the issues. The conclusions seem to you, perhaps, to be statements of the obvious – but things which seem obvious to one group of specialists seem daunting to others: my concern about the government’s plans for deficit reduction, for example, does not give me an understanding of the economic factors which underlie the decision-making. Lawyers, clients and judges clearly see that something must be done about discovery costs but feel that the subject is beyond their reach. The ALRC Report will help clarify for many what the issues are and what needs to be addressed.
It is perhaps helpful to visualise two distinct processes in the rule-making. Australia already has a recent Practice Note CM6 dealing with the mechanics of electronic disclosure. I was involved in the drafting of the England & Wales equivalent, the e-Disclosure Practice Direction and Electronic Documents Questionnaire of October 2010. Singapore came up with its own EDiscovery Practice Direction in between. These were concerned with the procedural level, where the present round is considering wider issues – the overall scope of discovery, the range of all the orders which might be made, the costs implications including capping, shifting and disallowing costs, and possible alternatives to the general principles of discovery / disclosure which are broadly the same in all the relevant jurisdictions.
The Civil Procedure Rule Committee for England & Wales is presently considering Lord Justice Jackson’s draft Rule 31.5B which includes, for example, the idea of removing any default position such as our present standard disclosure, effectively forcing judges to consider what the proper order should be. The control of discovery / disclosure by requiring a budgeted discovery plan in advance will force parties to focus on the relationship between the value (whether monetary or not) of the claim and the money which should be spent examining it. There is much interest in this latter initiative in other jurisdictions.
Such an examination depends on the development of new skills by both judges and lawyers which, whilst firmly rooted in the rules and in conventional obligations of candour, make better use of informed discretion to decide what is right for a particular case. If the parties are to do this for themselves they need, as the ALRC recommendations clearly identify, a clear idea of what is expected of them, which is why the word consistency joins cooperation, competence and proportionality in the lexicon of case management.
Some recent articles help give the flavour of the discussions going on in Australia. The Australian of 10 June carried an article called Evidence Overhaul could “end the farce, save litigants millions”. Another article of the same date is headed Nudge from McClelland to boost judicial education from which it appears that Attorney General Robert McClelland has recognised the need for judges to have proper training and, therefore, funding for such training. The Australian puts it like this:
The abuse of discovery – and its associated expense – is one of McClelland’s pet hates. So when the ALRC suggested equipping judges with an intimate knowledge of the technical mumbo jumbo involved in e-discovery, McClelland was soon singing from the same song sheet.
Whilst I don’t entirely approve of the expression “technical mumbo-jumbo involved in ediscovery”, the label matters less than the fact that something is to be done to equip judges to understand something of both the problems and of the solutions available through adroit use of the rules and from modern technology. As I noted recently, the British Ministry of Justice has published a very pretty paper saying that legal skills are a valuable invisible export and that we should fear competition from Singapore amongst other places; my jaundiced report about it implied that some training would be more valuable than this glossy marketing.
A final article, of the same date and from the same source, is imaginatively headed Mapping the new era of the iscovery process – that near-ubiquitous lower-case i slipping past a sub-editor who now takes it for granted that anything about information technology begins with i. The article’s author, Michael Black, is a former Chief Justice of the Australian Federal Court, and what he has to say is worth reading.
I am off to Hong Kong shortly for the InnoXcell EDiscovery and Data Retention Conference on 22 and 23 June. I am moderating the opening session called International EDiscovery and Practice Directions “the need to know” at which we will consider the developments in England & Wales, in Singapore and in Australia. My co-panelists are Senior Assistant Registrar Yeong Zee Kin of the Supreme Court of Singapore and Eddie Sheehy, CEO of Australian eDiscovery software company Nuix. Later on the same day, the evolution of the US Federal Rules of Civil Procedure will be considered by US Magistrate Judge David Waxse and Browning Marean of DLA Piper US. The ALRC recommendations, as the most recent attempt to deal with discovery issues, will bulk large in our discussions.