Discovery e-news | Issue 7

Issue 7 | December 2010   View original format

The month in summary 

Following the release of the Discovery Consultation Paper, the ALRC embarked on a short and targeted round of consultations with key stakeholders—bearing in mind the timeframe for this Inquiry, and the proximity to Christmas vacation! The Discovery team travelled to Canberra for consultations with the Attorney-General’s Department and the Law Council of Australia, National Legal Profession Project section. Discussions with the Law Council in relation to the legal ethical duties of lawyers in the discovery process—in the context of proposed national legal profession reforms—were particularly informative and valuable to the Inquiry. We were also lucky to meet up with Annette Marfording from the University of New South Wales, who was visiting the University of Canberra that same day, to discuss her research on Civil Litigation in New South Wales: Empirical and Analytical Comparisons with Germany.

The Discovery Inquiry team then headed back to Sydney, for consultations with a number of law firms including Gilbert + Tobin, Allens Arthur Robinson and Freehills. We also met with a number of solicitors from the Law Council’s Federal Litigation Section. These consultations with the legal profession highlighted the practical problems and challenges faced by those on the front-line of discovery. The ALRC also consulted with a number of Federal Court Judges in the Sydney Registry, in their capacity as members of the Court’s Practice and Rules Committee and the Judicial Education Committee. Again, these were particularly helpful conversations and provided valuable insights into the position from which judges approach discovery issues.

Reflections from abroad were also added to the mix in a consultation which included Master Steven Whitaker, Senior Master of the Senior Courts of England and Wales in the Queen’s Bench Division,  a sought-after speaker at conferences and seminars on e-disclosure and the civil procedure reforms post-Woolf and Jackson.

The ALRC has a number of other consultations scheduled up to the end of the year, and looks forward to receiving submissions in January. Consultations with stakeholders are a vital part of an ALRC Inquiry, but stakeholders’submissions are integral to the development of recommendations for reform. The ALRC strongly encourages all stakeholders in the Discovery Inquiry to provide written submissions, as well as responses to our Costs Questionnaire and to add your observations to the Discovery Blog. 

Discovery Costs Questionnaire 

In addition to the questions asked in the Consultation Paper, the ALRC is seeking to gauge practitioners’ impressions—based on practical experience—of the degrees to which discovery costs weigh against the overall expenses of litigation, the complexity of the issues in dispute, the stakes in the litigation and the value of the documents sought in the context of the litigation. The ALRC encourages responses to this questionnaire to provide particular examples or illustrations of cases which demonstrate the cost and value of discovery in litigation. 

View Discovery Costs Questionnaire >>

We would greatly appreciate practitioners’ assistance in completing and returning this questionnaire by 19 January 2011, to help put into context the cost and value of discovery in litigation.

Stakeholders may provide their responses to this questionnaire via the online submission form, as it is included at the end of the form. Alternatively, responses to this questionnaire may be emailed to

Discuss: Ethics in discovery practice  

In a recent roundtable discussion in Melbourne about lawyers’ ethical obligations in relation to discovery (see the previous post, Highlights from Roundtable and Panel discussions in Melbourne and Sydney), some panellists suggested that there were very few clear examples of lawyers deliberately abusing the discovery process. Rather, if discovery gets out of hand, then ‘excessive adversarialism’ was often at least partly to blame—that is, in the words of one panellist, ‘competitive, driven lawyers acting strongly for their clients, letting their sense of duty to their clients outweigh their duty to the court’.

Can legal ethics address excessive adversarialism? Should it be used to realign a lawyer’s sense of duty in relation to discovery? The ALRC dedicated a chapter of its recent consultation paper on discovery in federal courts to the question of ethics in discovery practice. We asked a series of questions about whether—and if so, how and to what extent—discovery was being abused in federal litigation in Australia. We also asked whether professional conduct rules should be amended to include specific legal ethical obligations concerning discovery …  Read the complete post on the Discovery blog and contribute to discussion >>

Submissions due 19 January 2011

We take this opportunity to remind stakeholders that the closing date for submissions to this Inquiry is 19 January 2011, little over a month from now!

Find out how to make a submission >>