11.04.2011

List of Recommendations

3. Data Collection

Recommendation 3–1 The Australian Government should work with the Federal Court of Australia and other stakeholders to identify, where possible, relevant data sets, measures and indicators and the means of capturing and reporting relevant data so that an empirical basis is developed in relation to civil litigation costs.

This should include data on the proportionality of costs associated with the discovery of documents—in terms of the costs of discovery relative to the total litigation costs, the value of what is at stake for the parties in the litigation and the utility of discovered documents in the context of the litigation.

5. Access to Discovery and General Discovery

Recommendation 5–1 The Federal Court of Australia should monitor the operation of the overarching obligation on parties to disclose critical documents in s 26 of the Civil Procedure Act 2010 (Vic) to assess whether it would be an effective and efficient mechanism to introduce into all or any Federal Court proceedings.

Recommendation 5–2 Federal Court of Australia practice notes should highlight existing mechanisms that enable the production and inspection of documents prior to discovery in proceedings.

Recommendation 5–3 The Federal Magistrates Act 1999 (Cth) should be amended to clarify that a declaration pursuant to s 45 of the Act is not required for the disclosure obligations in family law matters under pt 24 of the Federal Magistrates Court Rules 2001 (Cth) to apply.

6. Limited Discovery and Discovery Plans

Recommendation 6–1 The Federal Court Rules (Cth) should provide that, before the Federal Court of Australia makes an order for a party to give discovery, a party may apply for an order that the parties file a practical discovery plan setting out the matters on which the parties agree or disagree in relation to the scope and process of any discovery (a discovery plan order).

Recommendation 6–2 Federal Court of Australia practice notes should draw the parties’ attention to the rule concerning a discovery plan order and provide that the Court will expect the parties to address, at the earliest practicable stage in proceedings, whether a discovery plan order is likely to be sought.

Recommendation 6–3 Federal Court of Australia practice notes should provide the factors likely to be relevant in an application for a discovery plan order. For example:

  1. the issues in dispute and the likely number of documents or volume of data that might be discoverable in relation to them;
  2. the format in which documents are stored or managed;
  3. the format in which documents would be produced; and
  4. the methods or technologies that might be used in the discovery process.

Recommendation 6–4 The Federal Court Rules (Cth) should provide that, if the Court makes a discovery plan order, the parties must discuss in good faith and endeavour to agree 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.

Recommendation 6–5 Federal Court of Australia practice notes should provide that, if the Court makes a discovery plan order, the Court will expect the parties to:

  1. take into account relevant guidelines on the formation and content of discovery plans; and
  2. attend the Court to resolve any areas of disagreement in a discovery plan, or to inform the Court of the reasonableness and proportionality of the proposed discovery plan.

Recommendation 6–6 Federal Court of Australia practice notes should provide a detailed set of best-practice guidelines on the formation and content of discovery plans.

Recommendation 6–7 The guidelines on the formation of discovery plans in Recommendation 6–5 should direct parties, when forming a discovery plan, to identify where practicable:

  1. likely repositories or custodians of relevant documents—for example, by completing a questionnaire or under pre-trial oral examination;
  2. crucial issues in dispute—for example, by outlining the evidence on which the parties intend to rely or by exchanging critical documents;
  3. search strategies the parties can use to carry out a reasonable search for discoverable documents—such as concept searches or predictive coding;
  4. repositories of documents that are not ‘reasonably accessible’, whether discovery of such documents is justified in the proceedings and, if so, whether the party seeking discovery should bear the costs of accessing the documents—for example, documents stored on backup tapes or data recovery systems;
  5. whether metadata should be discovered, and the methods and technologies that may be used to preserve the integrity of metadata;
  6. methods and technologies that may be used to identify and remove duplicate documents in the discovery process; and
  7. methods and technologies that can be used to estimate the likely time and cost of discovery.

Recommendation 6–8 The guidelines on the content of discovery plans in Recommendation 6–5 should direct parties to include in a discovery plan:

  1. the repositories or custodians of documents to be searched in the discovery process;
  2. specific categories of documents, relevant to the crucial issues in dispute, to be searched for in the discovery process;
  3. specific categories of metadata, relevant to the crucial issues in dispute, to be searched for in the discovery process, and the methods used to extract the metadata;
  4. the terms or functionality of any strategies to be used for carrying out a reasonable search in the discovery process—for example, the keywords or concepts to be used in automated searches;
  5. any repositories of documents to be excluded from the conduct of a reasonable search in the discovery process—for example, backup tapes or data recovery systems;
  6. the methods and technologies to be used to de-duplicate discoverable documents;
  7. the methods and technologies to be used to redact privileged documents;
  8. the form in which the party giving discovery will provide a list of documents;
  9. the format in which documents will be produced for inspection—including examples of document management protocols for the production of electronic documents in proceedings; and
  10. a timeframe and an estimate of the costs of discovery.

Recommendation 6–9 The Federal Court of Australia should monitor and assess whether the reforms in Recommendations 6–1 to 6–8, if implemented, help achieve the overarching purpose of civil practice and procedure set out in s 37M of the Federal Court of Australia Act 1976 (Cth).

7. Judicial Case Management and Training

Recommendation 7–1 The Federal Court of Australia, in association with relevant judicial education bodies should develop and maintain a continuing judicial education and training program specifically dealing with judicial management of the discovery process in Federal Court proceedings.

Recommendation 7–2 The program referred to in Recommendation 7–1 should cover, among other things:

  • the technologies and practices used to discover electronically-stored information;
  • the circumstances in which it might be appropriate to order the parties to prepare a discovery plan (see Recommendation 6–1);
  • how to evaluate a discovery plan;
  • the circumstances in which it might be appropriate to direct a Registrar to make orders in relation to discovery (see Recommendation 8–1);
  • the circumstances in which it might be appropriate to order pre-trial oral examination for discovery (see Recommendation 10–2); and
  • the availability of costs orders to control discovery (see Recommendation 9–1).

Recommendation 7–3 The Federal Court of Australia should ensure that all judges are actively encouraged and supported to participate in the judicial training program referred to in Recommendation 7–1.

8. Registrars and Referees

Recommendation 8–1 Registrars in each registry of the Federal Court of Australia should be trained and equipped to hear applications in relation to discovery, especially in large or complex proceedings where discovery of electronically-stored information may prove burdensome by way of cost or delay to the parties. This training should include how to prepare and critically interrogate discovery plans and make discovery orders.

Recommendation 8–2 The judicial education and training program in Recommendation 7–1 should address the circumstances in which it may be appropriate for the Federal Court of Australia to direct Federal Court registrars to hear applications in relation to discovery. The training should address the circumstances in which such directions may be appropriate—for example, for complex discovery matters that may require discovery of very large quantities of electronically-stored information.

Recommendation 8–3 Section 54A of the Federal Court of Australia Act 1976 (Cth) and Order 72A of the Federal Court Rules (Cth) should be amended to provide expressly that the Court may refer discovery questions and issues to a referee for inquiry and report.

9. Costs Orders and Reasonable Fees

Recommendation 9–1 Federal Court of Australia practice notes should provide that the Court will expect practitioners to ensure that they have complied with their duty to assist the parties to give discovery and take inspection in accordance with the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth). The practice notes should also outline how the court, when awarding costs, may take into account a failure to comply with the duty.

Recommendation 9–2 The Federal Court of Australia Act 1976 (Cth) should be amended to provide that, without limiting the discretion of the Court or a judge in relation to costs, the Court or judge may make an order that:

  1. some or all of the estimated cost of discovery be paid for in advance by the party requesting discovery;
  2. a party requesting discovery give security for the payment of the cost of discovery; and
  3. specifies the maximum cost that may be recovered for giving discovery or taking inspection.

Recommendation 9–3 Federal Court of Australia practice notes should provide that practitioners may be expected to address whether an order in Recommendation 9–1 should be made. The practice notes should outline relevant circumstances the practitioners may be asked to address, including:

  1. the parties’ financial resources;
  2. the likely cost of retrieving relevant documents;
  3. the proportionality of the likely cost to the importance and complexity of the matters in dispute; and
  4. the potential for the order to focus the scope of discovery.

Recommendation 9–4 Federal Court of Australia practice notes should provide that the Court will expect practitioners to ensure that they have complied with their duty to assist the parties to give discovery and take inspection in accordance with the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth). The practice notes should also outline how the court, when awarding costs, may take into account a failure to comply with the duty.

10. Pre-trial Oral Examinations

Recommendation 10–1 The Federal Court of Australia Act 1976 (Cth) should be amended to provide expressly that the Court or a judge may order pre-trial oral examination about discovery.

Recommendation 10–2 The Federal Court Rules (Cth) should be amended to provide expressly the limited circumstances in which the Court or a judge may order pre-trial oral examination about discovery, for example to:

  1. identify the existence and location of potentially discoverable documents;
  2. assess the reasonableness and proportionality of a discovery plan;
  3. resolve any disputes about discovery.

12. Professional and Ethical Discovery

Recommendation 12–1 Legal professional associations should address discovery in commentary to professional conduct rules. The commentary should explain the application of the rules to discovery, including electronic discovery and outsourced discovery, and should include practical examples.

Recommendation 12–2 Continuing legal education and in-house training programs should include the law, practice and ethics of discovery. Such programs should address the technologies and practices used to discover electronically-stored information and how to prepare discovery plans.