Review of Austrlaian e-Discovery Laws

The Attorney-General, Robert McClelland, announced a Review of Discovery Laws to Improve Access to Justice (10 May 2010).This will particularly look at the use of technology (e-discovery) to speed it up the discovery process in civil litigation.

The Federal Court of Australia carried out a review of its procedures on e-discovery in 2008 and issued revised guidelines in 2009. Australian work in this area appears to be in advance of the U.S. Court’s Federal E-Discovery Rules. There is also an OASIS LegalXML Electronic Court Filing Technical Committee. , which produced a latest draft of a standard for Electronic Court Filing (ECF) v4.01 in January 2010.

Terms of Reference

The 2009 report by the Access to Justice Taskforce, A Strategic Framework for Access to Justice in the Federal Civil Justice System examined access to civil justice in the federal system from a system-wide, strategic perspective. In considering barriers to justice in relation to court based dispute resolution, the Taskforce noted the high and often disproportionate cost of discovery and recommended further enquiry on the issue.

I refer to the Australian Law Reform Commission for inquiry and report pursuant to subsection 20(1) of the Australian Law Reform Commission Act 1996 the issues of:

• the law, practice and management of the discovery of documents in litigation before federal courts;
• ensuring that cost and time required for discovery of documents is proportionate to the matters in dispute, including but not limited to:
  • the effectiveness of different types of discovery orders
  • the effectiveness and enforceability of requiring parties to identify and disclose critical documents as early as possible
  • the effectiveness of different costs orders
• to limit the overuse of discovery, reduce the expense of discovery and ensure key documents relevant to the real issues in dispute are identified as early as possible;
• the impact of technology on the discovery of documents.

In conducting its inquiry, the Commission’s objective is to identify law reform options to improve the practical operation and effectiveness of discovery of documents. In particular, the Commission shall have regard to:

• alternatives to discovery;
• the role of courts in managing discovery, including the courts’ case management powers and mechanisms to enable courts to better exercise those powers in the context of discovery;
• implications of the cost of discovery on the conduct of litigation, including means to limit the extent to which discovery gives rise to satellite litigation and the use of discovery for strategic purposes;
• costs issues, for example cost capping, security for discovery costs, and upfront payment; and
• the sufficiency, clarity and enforceability of obligations on practitioners and parties to identify relevant material as early as possible.

Collaboration and Consultation

In undertaking this reference, the Commission should:

• have regard to the experiences of other jurisdictions, including jurisdictions outside Australia, provided there is sufficient commonality of approach that any recommendations can be applied in relation to the federal courts; and
• consult with key stakeholders including relevant courts and the legal profession.

Timeframe

The Commission will report no later than 31 March 2011.

From: Review of Discovery Laws to Improve Access to Justice, Media Release, Attorney-General, Robert McClelland, Australian Government, 10 May 2010