Overview of this Report

Terminology

Disclosure

1.67 The term ‘disclosure’ was defined by Lord Woolf in his 1995 interim report on access to justice in England and Wales. Lord Woolf noted the traditional distinction between ‘discovery’ and ‘inspection’—whereby ‘discovery is the process of disclosing the existence of a document and inspection is the process by which a party who has been given discovery has produced to him the documents of which discovery has been given’.^[58] Lord Woolf saw merit in referring to both stages in the process, discovery and inspection, as ‘disclosure’. In this Report, the term ‘disclosure’ is also used to refer to both the identification and production of documents. It is also used to describe a party’s obligation to provide documents to another party that applies independently of any action by the other party and is not contingent on any orders or directions from the court. For example, the Family Law Rules 2004 (Cth)impose a general duty of disclosure on the parties to a family law dispute, from the start of pre-action procedures for the case.^[59] Outside of the family law context, in a number of other jurisdictions, parties may be obliged to disclose documents without any requirement for another party to request disclosure or the court to make such orders. For example, in Queensland, South Australia and the Northern Territory, parties are required to disclose documents within a certain number of days after the close of pleadings.^[60] In this sense, the term ‘disclosure’ is distinct from ‘discovery’ obligations that are imposed by specific court orders, as discussed below.

Discovery

1.68 The term ‘discovery’ is used to describe the process by which a party may obtain, pursuant to court orders, information concerning the existence and contents of documents relating to the matters in question in a civil proceeding. The process of discovery may involve the party requiring discovery to obtain orders of the court to serve a notice of discovery. For example, in the Federal Court, the obligation of making discovery is triggered by the service of a notice, with leave of the Court, pursuant to O 15 r 1 of the Federal Court Rules.

E-discovery

1.69 The term ‘e-discovery’ is used as a shorthand expression to describe methods by which parties use electronic means to assist in finding, identifying, locating, retrieving, reviewing, cataloguing or exchanging documents to satisfy disclosure obligations. This encompasses discovery processes that employ electronic technology to varying degrees, including the use of hardcopy document management systems to provide indexed document data to the other parties, review and exchange of scanned versions of hardcopy documents, and discovery of documents from source to production exclusively in electronic format.

1.70 Electronic documents may include a wide range of mediums: emails, voicemails, instant messages, e-calendars, audio files, data on handheld devices, animation, metadata, graphics, photographs, spreadsheets, websites, drawings and other types of digital data, as well as including data that is not apparent from the face of the document, such as meta-data and hidden text. Discoverable documents may be stored on tapes, CDs, DVDs, internal or external hard drives, PDAs, mobile phones, USB drives, or any other electronic medium.

1.71 The majority of Australian courts have adopted Practice Guidelines, Notes or Directions, in relation to electronic litigation, such as the Federal Court’s Practice Note CM6—Electronic Technology in Litigation,with accompanying ‘document management protocols’, to be used where the volume of discoverable documents exceeds 200.

Lawyer

1.72 The term ‘lawyer’ is used for the purposes of this Inquiry to include—consistently with s 117 of the Evidence Act 1995 (Cth)—barristers, solicitors and, unless specifically stated, lawyers with or without a current practising certificate.

Chapter structure

1.73 This Report concisely addresses the questions set out in the Terms of Reference. It is divided into 12 chapters. This chapter provides an outline of the background to the Inquiry and an analysis of the scope of the Inquiry as defined by the Terms of Reference. It also describes the development of the evidence base to support the law reform response as reflected in the recommendations.

1.74 Chapter 2, Framework for Reform, includes two parts: the first part provides a brief analysis of the conceptual landscape in which the doctrine of discovery operates; and the second part provides an outline of the key principles embodied in the recommendations for reform.

1.75 Chapter 3, Data Collection, discusses the need for accurate and meaningful data on the costs associated with discovery—and the extent to which discovered documents are used in litigation—in order to assess concerns about the dis-proportionality of discovery costs and to guide the direction of future reform in this area. The chapter also outlines responses to the ALRC’s Discovery Costs Questionnaire, which provide practitioners’ impressions—based on practical experience—of the proportionality of discovery costs.

1.76 Chapter 4, Overview of Discovery Laws, considers the obligation on a party to discover or disclose documents to another party and the range of documents discoverable in civil proceedings in federal courts. It includes an outline of civil practice and procedure for the discovery or disclosure of documents in proceedings before 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 or disclose documents. Legislative provisions, court rules, practice notes and significant cases dealing with the discovery of documents are discussed.

1.77 Chapter 5, Access to Discovery and General Discovery, examines the right of parties to access discoverable documents and the ambit of general discovery or disclosure obligations on parties to proceedings before a federal court.

1.78 Chapter 6, Limited Discovery and Discovery Plans, looks at case management strategies employed in relation to discovery or disclosure processes in proceedings before a federal court.

1.79 Chapter 7, Judicial Case Management and Training, considers whether discovery might be controlled through greater judicial case management in the Federal Court and, if so, whether this might be encouraged through judicial training or the introduction in legislation of new case management powers. The chapter also considers whether the court and parties should in large and complex cases use discovery specialists to help manage discovery.

1.80 Chapter 8, Registrars and Referees, considers whether the court and parties should in large and complex cases use discovery specialists to help manage discovery and prepare discovery plans.

1.81 Chapter 9, Costs Orders, considers a range of costs orders the Federal Court might make to help control discovery and encourage parties and their lawyers to keep the cost of discovery proportionate to the issues in dispute. The chapter also discusses whether professional conduct rules should provide that lawyers may only charge costs for discovery which are fair and reasonable.

1.82 Chapter 10, Pre-trial Oral Examinations, reviews the use of pre-trial oral examinations in other jurisdictions, particularly the US, and considers whether the Federal Court currently has sufficient power to order pre-trial oral examination to discover evidence about the identity of potentially discoverable documents and when there is a dispute as to the adequacy of discovery.

1.83 Chapter 11, Pre-action Protocols and Some Other Possible Alternatives to Discovery, considers some possible alternatives to discovery such as pre-action protocols—which have been adopted in a number of jurisdictions in response to civil justice reviews—and interim disclosure orders.

1.84 Chapter 12, Professional and Ethical Discovery, reviews the ethical implications of a selection of alleged discovery practices and considers a number of ways to foster high standards of professional and ethical discovery work in federal litigation.