Representative sample of cases involving discovery

10 The ALRC is interested in a wide range of cases involving discovery in the federal courts—irrespective of the size or complexity of the proceeding or what is potentially at stake for the litigants. This includes large-scale discoveries in the context of high-stakes litigation, as well as small or mid-sized discoveries in straight-forward cases or moderately complex proceedings. While concerns about the disproportionality of discovery costs may be most evident in large and complex proceedings, the ALRC does not intend to limit this questionnaire to such cases or to practitioners acting only in these matters.

11 The focus of the ALRC’s Inquiry is on the discovery of documents between parties to litigation before a federal court. This covers the disclosure or discovery of documents for inspection by one party to another party in civil proceedings before the High Court, Federal Court, Family Court or Federal Magistrates Court.

12 However, practitioners’ experiences of discovery or disclosure in other jurisdictions—in other courts or tribunals, in Australia or overseas—may be comparable or may provide interesting contrast. For example, discovery of documents in a proceeding before a State Supreme Court could be comparable to the cost and scale of discovery in Federal Court proceedings. Where responses to this questionnaire are based on experiences of discovery other than in a federal court, this should be noted at an appropriate point.

13 At the same time, responses to this questionnaire should not rely on experiences with other information-gathering processes in litigation: such as subpoenas, interrogatories or ‘preliminary’ discovery under Order 15A rule 3 of the Federal Court Rules. The Terms of Reference for this Inquiry are only concerned with the discovery of documents between parties to civil litigation.