Federal Court of Australia

Obligation to discover documents

4.5 The obligation to discover documents in Federal Court proceedings is fettered by provisions in the Federal Court Rules 1979 (Cth). The Rules require that, in all cases, a party must have the leave of the Court to file and serve a notice for discovery.^[6] The Court must interpret and apply civil practice and procedure provisions, such as the requirement for leave of the Court for discovery, in the way that best promotes the overarching purpose of civil practice and procedure—the just resolution of disputes according to law, as quickly, inexpensively and efficiently as possible.^[7]

4.6 In addition, the Federal Court Rules state that the Court shall not make an order for the filing or service of any list of documents, or for the production of any document, unless it is necessary at the time the order is made.^[8] The word ‘necessary’ in this context has been interpreted as meaning ‘reasonably necessary in the interests of a fair trial and of the fair disposition of the case’.^[9]

4.7 In determining whether to make orders for the discovery of documents, Practice Note CM 5 states that the Court will have regard to the issues in the case and the order in which they are likely to be resolved, the resources and circumstances of the parties, the likely cost of the discovery and its likely benefit.^[10]Practice Note CM 5 also provides guidance by setting out the types of questions that a judge would expect to be answered by a party seeking leave for discovery—such as, is discovery necessary at all and, if so, for what purpose?^[11]

4.8 Where leave for discovery is granted—and a notice for discovery is served—the party required to give discovery must do so within the time specified in the notice, not being less than 14 days after service, or within such time as the Court directs.^[12] Unless the Court otherwise orders, the party must give discovery by serving a list of documents required to be disclosed and an affidavit verifying that list.^[13]

4.9 Where orders for discovery are made by the Court, the party’s discovery obligation is ongoing in the sense that the party must continue to discover any documents not previously disclosed which would be necessary to comply with the order.^[14]

Proposed rules

4.10 On 24 December 2010, the Federal Court released a consultation draft of the Federal Court Rules 2010(Cth). The proposed Rules would not require parties to obtain leave of the Court to file and serve a notice of discovery. Instead, the proposed rules would prohibit a party from giving discovery unless the Court has made an order that the party give discovery.^[15] In addition, the proposed Rules would impose a cost sanction on parties who give discovery without being ordered to do so by the Court—in these circumstances, the party would not be entitled to any costs or disbursements for the discovery.^[16] The draft rules provide that a party may apply to the Court for a discovery order, only if it is necessary for the just determination of issues in the proceeding.^[17]

Range of discoverable documents

4.11 In the Federal Court, the Peruvian Guano test of relevance has been replaced with broad categories of documents ‘required to be disclosed’, pursuant to O 15 r 2(3) of the Federal Court Rules. The documents required to be disclosed in the Federal Court are any of the following documents of which the party giving discovery is, after reasonable search, aware at the time discovery is given:

(a) documents on which the party relies;

(b) documents that adversely affect the party’s own case;

(c) documents that adversely affect another party’s case; and

(d) documents that support another party’s case.^[18]

4.12 A number of matters are specified by O 15 r 2(5) as matters which may be taken into account by a party in making a ‘reasonable search’, namely:

(a) the nature and complexity of the proceedings;

(b) the number of documents involved;

(c) the ease and cost of retrieving a document;

(d) the significance of any document likely to be found; and

(e) any other relevant matter.

4.13 Order 15 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.

4.14 Orders for discovery of documents as contemplated in O 15 r 2 are referred to as orders for ‘general discovery’.^[19] The rules do not expressly prohibit orders for broader discovery of documents outside these general categories, for example, orders for discovery of all relevant documents within the Peruvian Guano test.^[20] However, the Court has held that, not only should discovery be constrained by the general categories in O 15 r 2,^[21] in the normal course of events discovery should be limited to the specific documents or classes of documents contemplated in r 3. In Racing New South Wales v Betfair Pty Ltd, Buchanan, Jagot and Foster JJ stated that:

as apparent from Order 15 r 2(3) of the Federal Court Rules, discovery ordinarily should be limited to the documents on which the party relies and the documents that adversely affect or support that party’s case or the case of another party. Moreover, Order 15 rr 3(1) and (2) indicate that, if anything, discovery by order should be restricted rather than expanded.^[22]

4.15 If the party does not search for a category or class of document, the rules require that party to include in their list of discoverable documents a statement of the category or class of document not searched for, and the reason why.^[23]

4.16 A party is required by the Federal Court Rules to discover documents which are or have been in that party’s possession, custody or power.^[24] For the purposes of discovery, ‘possession’ means physical or corporal holding of a document pursuant to the legal right to deal with it; ‘custody’ means the mere actual physical or corporal holding of a document, regardless of the right to its possession; and ‘power’ means an enforceable right to inspect or obtain possession or control of the document from the person who ordinarily has it in fact.^[25]

4.17 It is not necessary to disclose a document if the party giving discovery reasonably believes that the document is already in the possession, custody or control of the party to whom discovery is given.^[26]

4.18 The Federal Court Rules also exclude from the ambit of discovery additional copies of documents, which are not discoverable purely because the original or any other copy is discoverable.^[27]

4.19 While the Rules require a party giving discovery to identify in their list of discoverable documents any document which they claim is privileged,^[28] the party can rely on a privilege claim to refuse production of the document for inspection.^[29]

Proposed rules

4.20 The proposed amendments to the Federal Court Rules would prescribe a range of discoverable documents in substantially similar terms to the existing provisions. Draft r 20.14(1) restricts the ambit of ‘standard discovery’ to those documents:

(a) that are directly relevant to the issues raised by the pleadings or in the affidavits; and

(b) of which, after a reasonable search, the party is aware; and

(c) that are, or have been, in the party’s control.

4.21 The test of ‘direct relevance’ is particularised in draft r 20.14(2), which specifies in identical terms those documents ‘required to be disclosed’ under current O 15 r 2(3). The proposed rules also replicate the list of matters that may be taken into account by a party in making a ‘reasonable search’.^[30] Further, the word ‘control’ is defined in the Dictionary as ‘possession, custody or power’—as currently provided in O 15 r 6.

4.22 The draft Rules do not, however, include an equivalent provision to current O 15 r 2(4), which excludes from discovery obligations those documents reasonably believed to be in the possession, custody or control of the party to whom discovery is given.

4.23 Current provisions for ‘limited discovery’ under O 15 r 3—which allow the Court to limit discovery to specific documents or classes of documents, or in relation to specific matters in question in the proceeding—are not replicated in the proposed Rules. Instead, draft r 20.15 would apply where a party seeks ‘non-standard discovery’ or ‘more extensive discovery’ than is required by a reasonable search for the standard categories of documents.

4.24 A party seeking ‘non-standard discovery’ under the proposed rules would be required to identify what criteria should apply instead of standard discovery. A party seeking ‘more extensive discovery’ under proposed r 20.15 would be required to provide an affidavit stating why the order should be made.

Process of discovery

4.25 The following section of this chapter describes the procedures through which orders for discovery are sought, made and carried out—as specified in Federal Court Rules and practice notes.

Pre-discovery practice

4.26 Practice Note CM 5 implies that, before approaching the Court for orders, practitioners are expected to consider carefully any application for discovery, 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:

(i) is discovery necessary at all, and if so for what purposes?

(ii) can those purposes be achieved:

• by a means less expensive than discovery?

• by discovery only in relation to particular issues?

• by discovery (at least in the first instance—see (iii)) only of defined categories of documents?

(iii) particularly in cases where there are many documents, should discovery be given in stages, e.g. initially on a limited basis, with liberty to apply later for particular discovery or discovery on a broader basis?

(iv) should discovery be given in the list of documents by general description rather than by identification of individual documents?^[31]

Application for discovery

4.27 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.^[32] 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.^[33]

4.28 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.^[34]

Orders for discovery

4.29 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.^[35] 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).^[36] However, r 3 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.^[37]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 allow general discovery.^[38] 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.^[39]

4.30 When making orders for discovery, the Court must have regard to the overarching purpose provision of the Federal Court of Australia Act 1976 (Cth)—to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.^[40]

Serving a list of documents

4.31 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.^[41] 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.^[42]

4.32 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.^[43] If the party is represented by a solicitor, the solicitor must certify that the list and the statements in it are correct.^[44]

Production of documents

4.33 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.^[45] The party to whom a document is produced may make copies at their own expense.^[46] 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.^[47]

4.34 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.

4.35 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 the Court for inspection to decide the validity of the privilege claim or objection.^[48]

Discovery of electronically-stored information

4.36 Where a significant number of discoverable documents—in most cases, 200 or more—have been created or are stored in an electronic format, the Court may order that discovery be given of documents in an electronic format.^[49]Practice Note CM 6 states that, before the Court will make such orders, 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.^[50]

4.37 Parties are also expected to reach an agreement on protocols for the management of electronic documents in litigation.^[51]Practice Note CM 6 provides a Default Document Management Protocol that 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.

4.38 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 the resolution of any areas of disagreement concerning their discovery plan or document management protocol.^[52]

4.39 A checklist of the issues that 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.^[53]

4.40 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.^[54] 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.^[55]

4.41 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.^[56]

4.42 ‘Information management’ is the way in which potential litigants organise their electronic information, so that documents can easily be found. ‘Identification’ 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 pinpoint 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, backup tapes or disaster recovery systems may be identified as potential sites of relevant information. 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.

4.43 ‘Preservation’ and ‘Collection’ comprise the processes 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. 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.

4.44 ‘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. ‘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. ‘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).

4.45 ‘Production’ 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. ‘Presentation’ 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.

Supplementary discovery

4.46 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.^[57]

Particular discovery

4.47 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.^[58]

Enforcement of discovery obligations

4.48 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,^[59] also possesses such inherent power as is necessary to regulate processes such as discovery and to prevent abuse of process.^[60]

4.49 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.^[61]

Proposed rules

4.50 Procedures for discovery of documents under proposed Federal Court Rules 2010are prescribed in pt 20 and closely follow the current provisions outlined above. Parties would give discovery by serving a list of documents, together with an affidavit verifying the list.^[62] The Court may order a party to produce for inspection any document mentioned in the party’s list of documents, and parties would be under a continuing obligation to discover documents in compliance with court orders.^[63]