Peter A Clarke

The ALRC has released a report Managing Discovery: Discovery of Documents in Federal Courts.

The press release provides:

Advocating a facilitative approach that emphasises the role of the judiciary in robust case management, particularly in large and complex cases, is one of the key reforms suggested by the Australian Law Reform Commission (ALRC) in its most recent inquiry into the process of discovery in federal courts. The ALRC’s final report—Managing Discovery: Discovery of Documents in Federal Courts (ALRC Report 115, 2011)—was tabled today in federal Parliament and is the result of a ten-month inquiry.

Having considered carefully the views, concerns and feedback expressed during consultations and in submissions, and having conducted its own research and deliberations, the ALRC has developed 27 recommendations for improving the practical operation and effectiveness of the process of discovery. The recommendations are underpinned by eight policy principles, including those comprising the Government’s Strategic Framework for Access to Justice in the Federal Civil Justice System.

ALRC President Professor Rosalind Croucher said, “The underlying premise for this Inquiry was that the costs of discovery—which can be very high—may inhibit access to justice and result in an undue public cost. The ALRC heard that, in many cases, there are literally hundreds of thousands of documents stored electronically that may be called on during a discovery process and you can imagine the cost that providing access to all these documents can involve. The challenge for us was to recognise the important role that discovery can play in facilitating the resolution of disputes, while reviewing its operation in the context of the reality of modern information management in a digital age—the problem of simply too much information.”

The Report makes recommendations about, among other things, the production and inspection of documents prior to discovery; when parties should file discovery plans; best-practice guidelines on the formation and content of discovery plans; judicial and practitioner training; the role of registrars and referees; costs orders; pre-trial oral examinations; and data collection.

Part-time Commissioner the Hon Justice Bruce Lander commented, “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 considers that the most effective way to facilitate this process is through robust case management. Such a model preserves the discretion of the judge while, at the same time, introducing greater clarity of expectations in relation to discovery.” Part-time Commissioner the Hon Justice Arthur Emmett added, “A key focus of the recommendations is on reinforcing the flexibility that Federal Court judges have in the case management of litigation so that, for example, any discovery regime can be tailored to suit the particular issues in each case.”

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 Attorney General’s press release yesterday said:

Attorney-General Robert McClelland has tabled in Parliament the Australian Law Reform Commission’s report into discovery laws and practice in federal court proceedings.

The ALRC report, Managing Discovery: Discovery of Documents in Federal Courts, recommends reforms which aim to make the discovery process more efficient and cost effective as well as provide better support for judges.

The process of discovery is where parties disclose to each other documents that are relevant to the litigation taking place.

“This report has highlighted the need to ensure the costs and methods of resolution are proportionate to the issues in dispute,” Mr McClelland said.

“Discovery of documents allows parties to proceed on an equal footing and is a critical part of Australia’s legal system.

“The report notes the high and sometimes disproportionate cost of discovery can impede access to justice for some litigants.”

The Inquiry found that discovery can be routine and straightforward in many instances.  In other cases, discovery can be a complex process involving large volumes of documents. In these cases, discovery costs can be disproportionate to the utility of the documents in resolving the dispute. This has become more common in modern litigation due to new technologies enabling the creation, retention and collection of masses of electronically-stored information.

The Commission’s recommendations for reform aim to support judges in tailoring the discovery process to better suit the circumstances of each case.

The Commission also recommends clarifying the expectations of the parties and their lawyers, making their obligations more certain in advance of the discovery process and the expected costs more predictable.

“I look forward to working closely with the courts and other stakeholders in developing responses to the report,” Mr McClelland said.