Discovery costs

1.14 A number of the questions below refer to the cost of discovery or ‘discovery costs’. This may include, for example, solicitors’ fees for work done in formulating requests for discovery or responding to discovery requests, including time spent negotiating the categories of documents sought by way of discovery, reviewing potentially discoverable documents for disclosure and drafting a list of documents to serve on the party requesting discovery. The ALRC expects that practitioners would be familiar with such costs, and may have a fair impression of the amount of such costs in a particular client’s case—and therefore would expect responses to this questionnaire to take those costs into account.

1.15 Discovery costs might also include disbursements such as counsels’ fees for appearing in court on discovery applications or other motions relating to discovery—such as seeking leave to issue a notice for discovery, or a hearing as to the validity of privilege claims made with respect to discoverable documents—as well as a litigation support service provider’s fees for electronic discovery services. The ALRC does not necessarily expect responses to this questionnaire to account for such disbursements, given that this information might not be as readily available to practitioners.

1.16 Similarly, discovery costs might include the cost of a client’s management and employees engaged in responding to a request for discovery of documents. Again, this information might not be available to practitioners—and the ALRC does not necessarily expect that responses to this questionnaire will account for such costs.

1.17 For the purposes of this questionnaire, discovery costs are not intended to include costs that are consequential to the discovery process. The ALRC notes that the number of documents disclosed may have a multiplier effect on other litigation expenses. For example, legal fees and court costs may be incurred for the time taken at trial dealing with discovered documents during the examination of witnesses—particularly expert witnesses—and in counsels’ submissions. While the costs that may be associated with discovery are not necessarily limited to those incurred in the production of documents by the discovering party, and the review by the other side, such costs are the focus of this questionnaire.

1.18 Other terms and concepts incorporated into particular questions below are discussed under each question.