3.2 This part of the chapter outlines the existing court rules and practices for discovery of documents in federal courts. It covers the courts’ powers to make orders for discovery and to enforce those orders, and the processes by which parties are required to discover documents.
High Court of Australia
3.3 There are no provisions in the High Court Rules 2004 (Cth)setting out a process for the discovery of documents. Where discovery is necessary in High Court proceedings, the Court or a judge determines what procedure is to be adopted and may give directions.
Federal Court of Australia
3.4 Practice Note CM 5 implies that practitioners are expected to consider carefully any application for discovery, before approaching the court for orders, with a view to narrowing the scope of discovery. Practice Note CM 5 expressly states that the court will expect practitioners to be in a position to answer the following questions when applying for orders, designed to eliminate or reduce the burden of discovery:
is discovery necessary at all, and if so for what purpose?
can those purposes be achieved:
- by a means less expensive than discovery;
- by discovery only in relation to particular issues; or
- by discovery (at least in the first instances) only of defined categories of documents?
particularly in cases where there are many documents, should discovery be given in stages, for example, initially on a limited basis, with liberty to apply later for particular discovery or discovery on a broader basis?
should discovery be given in the list of documents (as required by O 15 r 2(2) of the Federal Court Rules (Cth)) by general description rather than by identification of individual documents?
Planning for electronic discovery
3.5 Where discovery involves significant amounts of electronically-stored information (ESI), Practice Note CM 6 states that before the court will make orders for electronic discovery the parties are expected to have discussed and agreed upon a practical and cost-effective discovery plan having regard to the issues in dispute and the likely number, nature and significance of the documents that might be discoverable in relation to them.
3.6 Parties are also expected to reach an agreement on protocols for the management of electronic documents in litigation.Practice Note CM 6 provides a Default Document Management Protocol which addresses issues such as page number conventions, document descriptions, file format and media to be exchanged. An example of an Advanced Document Management Protocol is also provided under the practice note.
3.7 The court may order the parties to attend a case management conference, called a ‘pre-discovery conference’, with a judge or registrar to facilitate or mediate resolution of any areas of disagreement between the parties concerning their discovery plan or document management protocol.
3.8 A checklist of the issues which parties are expected to address at a pre-discovery conference is annexed to the practice note. These issues include strategies for the identification, collection, processing, analysis, review and exchange of electronic documents, as well as a timetable and estimate of costs for discovery.
3.9 If the court requires a pre-discovery conference, Practice Note CM 6 states that each party may have up to three representatives—including one representative to act as a single point of contact for the party in relation to the matters resolved at the conference, called the ‘Discovery Liaison’. Parties’ representatives at a pre-discovery conference are expected to have sufficient knowledge and access to information to address the discovery plan and document management protocol. The parties or the court may also engage an expert or adviser to attend a pre-discovery conference to facilitate or mediate resolution of any of these issues.
Application for discovery
3.10 A party may file and serve a notice for discovery, with leave of the court, after a directions hearing under O 10 of the Federal Court Rules and within any period fixed by the court for this purpose. In practice, the court may expect the parties to indicate at the first directions hearing or case management conference whether leave for discovery will be sought.
3.11 The rules do not explicitly prohibit the giving of a discovery notice before the close of pleadings. However discovery will not be enforced prior to the close of pleadings, except where the party seeking discovery can show that it is impossible to plead without it.
Orders for discovery
3.12 Practice Note CM 5 states that the court will not order general discovery as a matter of course, even where the parties have consented to it, and that the court will fashion any order for discovery to suit the issues in a particular case. In this context, general discovery refers to the broad categories of documents required to be disclosed under Federal Court Rules O 15 r 2(3). However, r 3 subsequently provides that the court may limit discovery orders to specific documents or classes of documents or in relation to specific matters in question in the proceeding—to prevent unnecessary discovery.Practice Note CM 5 suggests that, in the normal course of events, the court will only make orders for limited discovery under r 3 and not general discovery under r 2. The court has confirmed that the basis of ordering discovery in the Federal Court is that, as a general rule, the Court will not give general discovery. In Pasini v Vanstone, Finn J stated that:
As Practice Note 14 [now Practice Note CM 5] makes plain, general discovery will not be ordered as of course, discovery commonly being ordered only in relation to particular issues or defined categories of documents.
3.13 When making orders for discovery, the court must have regard to s 37M of the Federal Court of Australia Act 1976 (Cth) which provides that the overarching purpose of civil practice and procedure is to facilitate the just resolution of disputes:
- according to law; and
- as quickly, inexpensively and efficiently as possible.
Serving a list of documents
3.14 Order 15 r 2(2) of the Federal Court Rules requires parties to give discovery by serving a list of discoverable documents. The list of documents must be accompanied by an affidavit verifying the list. This must be done within the time specified in the notice for discovery (not being less than 14 days after service), or within such time designated by the court.
3.15 The contents of the list must be in accordance with Form 22 prescribed under sch 1 of the Rules, and conform to the requirements of O 15 r 6 unless the court otherwise orders. The list must describe each document or group of documents sufficiently to be identified, state the grounds for privilege claimed over any of the documents and, for documents no longer in the party’s possession, custody or power, state when the party parted with the document and what has become of it. If the party is represented by a solicitor, the solicitor must certify that the list and the statements in it are correct.
Production of documents
3.16 Order 15 r 11 provides that the court may, subject to any question of privilege, order a party to produce any document enumerated in their list of discoverable documents for inspection by any other party at a time and place specified in the order. The party to whom a document is produced may make copies at their own expense. The court may also order the party giving discovery to file and serve on any other party a copy of the whole or any part of the document.
3.17 Order 15 r 13 provides that the court may, at any stage in a proceeding, order a party to produce to the court for inspection any documents in its possession, custody or control relating to any matter in question, and the court may deal with the document as it thinks fit.
3.18 In particular, where a question of privilege or any other objection to the production of discoverable documents between the parties arises, the court may order that the document be produced to court for inspection to decide the validity of the privilege claim or objection.
Producing electronic documents
3.19 The court may order that documents be produced in electronic format, in which case the party should provide other parties with documents in a useable, searchable electronic format or in the electronic format in which the documents are ordinarily maintained.
3.20 The standard process of discovering electronic documents is set out in the diagram below, and was established by the Electronic Discovery Reference Model (EDRM) Project.
3.21 The following is a simplistic and brief description of the stages in the EDRM.
3.22 This is the way in which potential litigants organise their electronic information, so that documents can easily be found. The obligations on litigants to preserve relevant documents are considered in Chapter 4.
3.23 This involves identifying the places or locations to be searched, as well as the types of documents or information to be searched for. E-discovery might pin-point certain sites such as a particular employee’s computer terminal or cast a broader net, for example, over an organisation’s entire email system. Broader still, back-up tapes or disaster recovery systems may be identified as potential locales of relevant information.
3.24 The types of electronic documents to be discovered may be identified by automated searches using keywords appearing in the document or by specifying fields such as author or recipient. Documents may also be identified by type of data, whether email, portable document format (pdf) or text file.
3.25 This is the process of transferring information from its original location to a searchable database of potentially discoverable documents for review, in a way that does not compromise the integrity of the data. Specialist software and other forensic tools have been developed to collect electronic documents for discovery.
3.26 A particular issue that may arise at this stage in the e-discovery process is the preservation of metadata. Metadata is information about an electronic record, such as how/when/by whom a document was created/amended/sent. These details can be altered when a document is accessed during the collection phase. Metadata can be relevant to the issues in dispute in some cases, for example, where the parties disagree as to which record is the final version of a document. In such cases, technological measures are available to ensure that the metadata is preserved in its original form.
3.27 Processing is the stage at which the collected documents are tidied up and culled. This may involve extracting individual files from containers, and converting files into a format that enables word-searches. It may also involve the process of de-duplication, which can mean removing additional copies of the same document or omitting the many links in a chain of emails.
3.28 Analysis, in its simplest form, is the indexing of documents to enable keyword searching and the production of a contents list. This involves coding each document according to a list of fields (such as author, recipient or date).
3.29 Review is when documents are perused to assess their discoverability. This can involve coding each document according to the facts in issue to which the documents relate, and indicating each document’s level of importance (whether it is relevant enough to tender in court, provide in a brief to counsel, disclose to an opposing party or not relevant enough to include in discovery). The review stage may also involve the redaction of privileged communications or tagging wholly privileged documents to be withheld.
3.30 This is the act of disclosing documents to other parties to the proceeding. For example, electronic documents may be produced on a disk or hosted on a website.
3.31 This is when documents are presented to the court. Documents may be presented on computer screens in electronic format in an e-courtroom, rather than producing hardcopies of documents from physical files.
3.32 Orders for discovery impose an ongoing obligation on the party giving discovery. The Federal Court Rules require parties to discover any document not previously discovered that would otherwise be necessary to comply with court orders.
3.33 The Federal Court Rules state that the Court may order at any stage of the proceeding that a party give discovery of some document or class of documents relating to any matter in question in the proceeding that—as it appears from the evidence or from the nature or circumstances of the case or from any document filed in the proceedings—may be or may have been in the possession, custody or power of the party.
Enforcement of discovery obligations
3.34 The court has broad powers to address a party’s non-compliance with orders for discovery. This includes the case management powers prescribed in s 37P of the Federal Court of Australia Act,such as the power to disallow or reject any evidence or dismiss the proceeding in whole or in part. The Federal Court, as a superior court of record, also possesses such inherent power as is necessary to regulate processes such as discovery and to prevent abuse of process.
3.35 The Federal Court’s power to award costs may also be used to enforce orders for discovery. This includes the power to make an award of costs at any stage in a proceeding and to make different awards of costs in relation to different parts of the proceeding, such as discovery.
Family Court of Australia
3.36 Chapter 13 of the Family Law Rules 2004 (Cth)imposes an obligation on each party, from the start of pre-action procedures for a case, to provide to the court and to the other party full and frank disclosure of all relevant information in a timely manner. In all cases this includes disclosure of relevant documents in the parties’ possession or under their control.
3.37 The parties to a financial case must make full and frank disclosure of their financial circumstances. This involves filing and serving a financial statement with the application or response.
3.38 A party to proceedings before the Family Court must give an undertaking to the court stating that the party has read parts 13.1 and 13.2 of the Family Law Rules and is aware of the duty to give full and frank disclosure, and that to the best of his or her knowledge the party has complied with the duty of disclosure. This undertaking must be filed at least 28 days prior to the first day before a judge.
3.39 After a case has been allocated a first day before a judge, a party may request another party to provide a list of documents to which the duty of disclosure applies. The list must be provided within 21 days of the request and, subject to a claim of privilege, the party must produce those documents for inspection on request by another party. The court may make an order directing disclosure of documents by electronic communication.
3.40 A party who breaches their disclosure obligations in the Family Court may be in contempt of court and liable to costs orders. A costs order for breach of disclosure obligations would be a departure from the usual position that parties to proceedings before the Family Court bear their own costs. A breach of disclosure obligations is also an offence if the party gave an undertaking in relation to disclosure that the party knew or ought to have known was false or misleading in a material particular.
Federal Magistrates Court of Australia
3.41 The Federal Magistrates Court’s jurisdiction overlaps with that of the Federal Court and the Family Court. Procedures for discovery prescribed in the Federal Magistrates Court Rules 2004 (Cth) are similar to the processes of the Federal Court. Similarly, procedures for disclosure in financial matters in the Federal Magistrates Court’s family law jurisdiction are similar to those applicable in the Family Court.
3.42 Part 14 of the Federal Magistrates Court Rules prescribes procedures for the discovery of documents in all proceedings. Rule 14.02 provides that a declaration to allow discovery may be made on the application of a party or on the court’s own motion. If a declaration is made, the court may order discovery generally or look to fashion orders for discovery in relation to particular classes of documents or issues in the proceeding.
3.43 The rules require the party ordered to give discovery to file an affidavit of documents. The court may order the party to produce discoverable documents to the court or to any other party for inspection, subject to any claim of privilege.
3.44 Rule 14.09 provides that a party who does not discover documents so ordered by the court is not entitled to put the document in evidence or give evidence of the contents of the document, unless the court gives leave.
Disclosure in financial matters
3.45 Part 24 of the Federal Magistrates Court Rules applies to financial matters under the Federal Magistrates Court’s family law jurisdiction. Rule 24.02 provides that an applicant or respondent must file and serve a financial statement with their application or response at the commencement of proceedings. In this statement, the party must make full and frank disclosure of their financial circumstances.
3.46 In proceedings for maintenance, the respondent must bring particular categories of documents to the court on the first court date such as tax returns, pay slips and bank statements. In other financial matters, unless the court orders otherwise, the parties must serve on each other within fourteen days of the first court date specific categories of documents including tax assessments and business activity statements.
High Court Rules 2004 (Cth) r 6.01.
Practice Note CM 5: Discovery (Federal Court of Australia), .
Practice Note CM 6: Electronic Technology in Litigation (Federal Court of Australia), .
 Ibid, .
Federal Court Rules (Cth), O 10 r 1(2)(i); Practice Note CM 6: Pre-Discovery Conference Checklist (Federal Court of Australia), .
Practice Note CM 6: Pre-Discovery Conference Checklist (Federal Court of Australia).
 Ibid, [9.1].
 Ibid, .
Federal Court Rules (Cth), O 10 r 1, O 15 r 1.
Practice Note CM 6: Pre-Discovery Conference Checklist (Federal Court of Australia), [1.2].
Latec Finance Pty Ltd v Jury (1960) 77 WN (NSW) 674.
Practice Note CM 5: Discovery (Federal Court of Australia), [1(a)–(b)].
Federal Court Rules (Cth) O 15 r 5; Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 2)  FCA 1001, .
Federal Court Rules (Cth), O 15 r 3.
Kyocera Mita Australia Pty Ltd v Mitronics Corp Pty Ltd  FCA 242, .
Pasini v Vanstone  FCA 1271, .
Federal Court of Australia Act 1976 (Cth), s 37M.
Federal Court Rules (Cth), O 15 r 2(2).
 Ibid, O 15 r 2(1).
 Ibid, O 15 rr 6(3),(4),(6).
 Ibid, O 15 r 6(8).
 Ibid, O 15 r 11(1).
 Ibid, O 15 r 12.
 Ibid, O 15 r 11(1)(e).
 Ibid, O 15 r 14.
Practice Note CM 6: Electronic Technology in Litigation (Federal Court of Australia), [5.1].
EDRM: The Electronic Discovery Reference Model (2010) <www.edrm.net> at 25 October 2010.
Federal Court Rules (Cth), O 15 r 7A.
 Ibid, O 15 r 8.
Federal Court of Australia Act 1976 (Cth), s 5(2).
Riley McKay Pty Ltd v McKay  NSWLR 264.
Federal Court of Australia Act 1976 (Cth), s 43 (3)(a), (b).
Family Law Rules 2004 (Cth), r 13.01.
 Ibid, r 13.07.
 Ibid, r 13.05.
 Ibid, r 13.15. This does not apply to an independent children’s lawyer.
 Ibid, r 13.16.
 Ibid, r 13.20. This applies to all Initiating Applications (Family Law) except: an application for an order that a marriage is a nullity or a declaration as to the validity of a marriage, divorce or annulment; a maintenance application; a child support application or appeal; and an application seeking interim, procedural, ancillary or other incidental orders.
 Ibid, r 13.20.
 Ibid, r 13.24.
Family Law Act 1975 (Cth), ss 112AP, 117.
 Ibid, s 117 (1).
Family Law Rules 2004 (Cth), r 13.15.
Federal Magistrates Court Rules 2001 (Cth), r 14.02 (1).
 Ibid, r 14.02 (2).
 Ibid, r 14.03.
 Ibid, r 14.05.
 Ibid, r 14.09.
 Ibid, r 24.02.
 Ibid, r 24.03.
 Ibid, r 24.05.
 Ibid, r 24.04.