Judicial education and training

7.22 Effective case management skills are necessary for judges to narrow the issues in dispute and control the scope and process of discovery. Providing training that encourages judges to use their existing powers more actively and effectively is another potential way to control discovery. The need for judicial education and training in case management skills was recognised by the Access to Justice Taskforce, in making the following recommendation:

The Attorney-General should work with the courts and the National Judicial College of Australia (NJCA) to ensure that judicial education includes measures aimed at enhancing the understanding and use of … case management techniques.^[22]

7.23 The Law Council expressed ‘strong support’ for this recommendation of the Access to Justice Taskforce.^[23] Training on the use of computer technologies in the production of ESI may be particularly necessary. The need for effective training for judges managing an e-discovery process was specifically targeted in the United Kingdom by Lord Jackson in his Review of Civil Litigation Costs:

E-disclosure as a topic should form a substantial part of … the training of judges who will have to deal with e-disclosure on the bench.^[24]

7.24 Currently, there are a number of avenues open to judges for training in case management skills. The National Orientation Program for new judges conducted by the National Judicial College of Australia includes a session on case management, examining ‘the role of judges dealing with busy application lists, the identification of cases requiring management and the referral of cases for alternative dispute resolution’.^[25]

7.25 Continuing education for judges includes modules on pre-trial case management, under the national curriculum for professional development for Australian judicial officers.^[26] This program covers the challenges and problems that can arise from discovery and using alternative dispute resolution techniques in the management of cases, including settlement.^[27]

7.26 While the curriculum includes a module on information and other technologies, there is currently no express inclusion of e-discovery in the national curriculum.^[28] Programs in this module are focused on technologies used in the court room—the design of electronic courtrooms, the use of audiovisual technologies and electronic filing—and computers as a research tool for writing judgments—rather than those used in the discovery process.

7.27 Judicial education at a national level may be lacking a particular focus on the management of large-scale discovery that involves masses of ESI. This might reflect the fact that such discovery processes are largely confined to the Federal Court, and a few state Supreme Courts. It may also be difficult to take a national approach on this topic, since each court has its own case management system to deal with discovery issues.

7.28 Professional development specifically for Federal Court judges may be provided through the Federal Court itself, the Judicial Education Committee or the Practice Committee. The Practice Committee, together with the Law Council, was jointly responsible for organising the workshop held in 2008 on the Federal Court’s case management system—which paid particular attention to the management of discovery issues.^[29] The ALRC understands that plans for a further case management workshop are in train.

7.29 The Australian Institute of Judicial Administration (AIJA) holds regular conferences and seminars for judicial officers. In the past, some of these have covered discovery issues—including the use of computer technologies.^[30]

7.30 Another source of information on case management for Federal Court judges is the Court’s bench book. It includes a chapter on discovery covering the general principles and rules for making discovery orders, with model orders. However, the ALRC understands that the bench book has fallen out of date—for example it does not refer to the requirements of Practice Note CM 6—and is not widely used. The ALRC also understands that work is progressing in the Federal Court on a replacement benchbook. This may be a timely opportunity for the dissemination of up-to-date information across the Federal Court with a particular focus on effective case management of the discovery process.

Submissions and consultations

7.31 In the Consultation Paper, the ALRC proposed that the Federal Court develop and maintain a continuing judicial education and training program specifically dealing with judicial management of the discovery process in Federal Court proceedings, including the technologies used in the discovery of ESI.^[31] This proposal was widely supported by submissions,^[32] many of which stressed the importance of robust case management, the judicial understanding of the implications of ESI and related judicial training.

7.32 The Law Council expressed its concern that the Court ‘does not always provide firm and consistent management of discovery’. Docket judges ‘should be prompt and robust in relation to making decisions on discovery disputes’.^[33] A group of large law firms submitted that more informed judges ‘will exercise greater control over the process and create a new culture of active judicial case management’.^[34]

7.33 The Association of Legal Support Managers (Qld) submitted that, in their experience, parties and their representatives were slow to change their practices, but that more rapid change was required. Accordingly,

there will need to be a greater level of engagement in, and management of, discovery processes by the judiciary from the commencement of proceedings.^[35]

7.34 Many submissions stressed the importance of educating the judiciary about information technology and other electronic discovery matters. One submitted that, without understanding the technology issues, a judicial officer cannot meaningfully engage with the electronic discovery process.^[36] A group of large law firms submitted that judges ‘do not always test practitioners on the proposed conduct of electronic discovery’:

The method employed to retrieve, review and produce the material is generally left to the parties. Unless the issue is raised by a party, judges do not always balance the cost of retrieving and reviewing the material with the probative value of the documents sought to be obtained. Greater knowledge of the discovery process may lead to judges further engaging with these issues.^[37]

7.35 Elements of electronic discovery that it was suggested should be taught in judicial education programs included: data storage (including new developments such as ‘cloud computing’); data searching (keyword searches and ‘concept’ searches); data retrieval or restoration; standard document retention policies; standard legal databases; and the use of outsourcing.^[38] The Association of Legal Support Managers (Qld) submitted that judicial education should ‘clearly encompass training in relation to technology and practices that can be used to assist in litigation and discovery generally (not just discovery of electronic information)’.^[39] The Association went on to say that:

A judiciary that is well educated in available technology and practices can ask the hard questions of parties and their representatives who are proposing approaches to discovery that may not be proportionate or efficient.^[40]

7.36 Submissions noted that it was not only judges that required this training, but also clients and lawyers,^[41] and that training needs to be ongoing as technology changes.^[42]

7.37 Information systems and searching can make discovery easier—but not always. The Law Society of NSW submitted that:

keyword searches can often take many days to run particularly over large repositories of documents and can return vast numbers of results all of which need to be reviewed by a party and its solicitors to determine whether the material is discoverable. These issues have a significant cost implication. Basic information of this nature should be available to the Court to ensure that the complexities of technology and the costs of using such technology are taken into account when considering the scope of discovery.^[43]

ALRC’s views

7.38 There are already many opportunities for Federal Court judges to develop their case management knowledge and skills—including those required to manage the discovery process effectively—through continuing education, training and the information resources of the Court. However, in the ALRC’s view, existing case management training and education for Federal Court judges should give greater focus to the discovery process. The training should encourage judges to manage discovery confidently and robustly, and so facilitate the just resolution of disputes according to law, as quickly, inexpensively and efficiently as possible.^[44]

7.39 Regular training of this kind—properly resourced, of high quality and professionally appropriate—is an essential aspect of long term cultural change. Accordingly, the ALRC also recommends that all judges are actively encouraged and supported to participate in this training.

7.40 There appears to be a particular need for Federal Court judges to be given regular and continuing education in electronic discovery, in line with developments in information and communication technologies. This is especially important so judges are able to interrogate detailed discovery plans.

7.41 The focus of this chapter has been on judicial case management, but this Report considers a number of tools the Court might use to manage discovery, such as discovery plans and pre-trial oral examinations. Those tools are discussed throughout the Report, but in this chapter the ALRC recommends that judicial training on discovery address the circumstances in which it might be appropriate to use these tools.