3.1 This chapter discusses the need for accurate and meaningful data on the costs associated with discovery in federal court proceedings—as well as the need to evaluate the utility of discovered documents in the context of the litigation—in order to assess concerns about disproportionate discovery costs and to guide future reform in this area.

3.2 The types of data that may assist to evaluate and track the proportionality of discovery processes in court proceedings are also outlined in this chapter. In this regard, the ALRC recommends that relevant data sets, measures, indicators and the means of capturing and reporting relevant data should be identified so that an empirical basis is developed in relation to civil litigation costs, including data on the proportionality of discovery costs.

3.3 This chapter also examines responses to the Discovery Costs Questionnaire published as part of this Inquiry, which is included as Appendix 4 of this Report. These responses provide practitioners’ impressions—based on practical experience—of the degree to which discovery costs weighed 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.