Australian Law Reform Commission

Reference for Review of the Law of Discovery

Submission

Christopher Enright

and

Simon Lewis

Christopher Enright
Christopher Enright is qualified as a barrister, solicitor and chartered accountant. In his career he has practised law and taught law. His main research interest is directed at formulating method or techniques to obtain best practice in teaching, studying and working with law. He is currently completing a Master of Commerce degree in management at the University of New England.

Simon Lewis
Simon Lewis has worked for law firms in Sydney. He is now the proprietor of Sinch, which specialises in providing software for lawyers to enable them to work more effectively and more efficiently.

Contents

Part 1 Summary
Key Propositions		1
Introduction		3
Proposition 1: Discovery by Issues of Fact		3
Proposition 2: Identification of Issues of Fact		3
Proposition 3: Holistic Disclosure		3
Proposition 4: Examination of Parties		4
Proposition 5: Testing by Trial and Error		4

Part 2 Submission
Introduction		5

Background Matters		5
Introduction		5
Management		5
Courts		6
Adversarialism		6
Natural Justice		7

Discovery		8
Nature of Discovery		8
Problems		8
Solutions		9

Pleading the Case		9

Assembling the Case		10

Settling the Case		11

Appraising Proposals for Reform		11

Further Reading		12

Key Propositions

Introduction
Proposition 1: Discovery by Issues
Proposition 2: Identification of Issues
Proposition 3: Holistic Disclosure
Proposition 4: Examination of Parties
Proposition 5: Testing by Trial and Error

Introduction
The proposed reforms for discovery have five defining characteristics:
	#	discovery by issues of fact
	#	identification of issues of fact
	#	holistic disclosure
	#	examination of parties
	#	assessment of proposals by trial and error

Proposition 1: Discovery by Issues of Fact
Our proposal does not entail general discovery. Instead it proposes discovery for each of the issues of fact that make the dispute.

Proposition 2: Identification of Issues of Fact
If parties are going to engage in discovery by reference to issues of fact, it is important that those issues are identified correctly and early. We propose a renovated system of pleading to enable the parties to identify the issues of fact after the first exchange of pleadings. The system does this by using the elements and consequences of the cause of action as search and control mechanism for determining what are the material facts and for monitoring a pleading to check that it contains either an assertion or denial of the material facts. By this means it makes crystal clear what are the issue of fact. 

Proposition 3: Holistic Disclosure
The process for discovery is subsumed within a process that involves all means of disclosure. Parties engage in disclosure at an evidence conference that exercises all of the powers of the court on a directions hearing. Because all disclosure is done together the parties and the court can see the full picture, and in particular see how all the pieces of evidence relate to one another and to see if there are any gaps. It also creates efficiency by avoiding several separate applications and processes for the various types of disclosure.

Proposition 4: Examination of Parties
Both the court and the other party can question a party or a non-party as to the existence and location of evidence. Their answers in this regard may be taken as admissible evidence as to credibility.

Proposition 5: Testing by Trial and Error
There is no guarantee that any proposed reform will work no matter how apt it looks on paper and how well intentioned it is. Consequently, there is risk in a government selecting one means of dealing with a complex problem and implementing it across the board. The risk is that it may not work as planned. An alternative is for all reform proposals to be written up in a manual containing suggestions for lessening or eliminating the problems of discovery. Since judges already have wide powers to determine their own procedures they could implement most of these procedures in a case if they chose to do so. The idea is to allow the willing judges to trial the proposals and report the results to the Commission. This way, bit by bit, the best solution for discovery should emerge.

Submission

Introduction
Background Matters
Discovery
Pleading the Case
Assembling the Case
Settling the Case
Appraising Proposals for Reform
Further Reading

Introduction
We cannot solve problems by using the same kind of thinking we used when we created them.
This submission is an outline of the book Reforming the Law of Discovery. The book proposes some reforms to the procedures for hearing a case in a court. These reforms operate on the task of assembling the evidence for the case and communicating the nature of that evidence to the parties to the case and to the court. These procedures encompass the process of discovery, which is one of the major means of assembling evidence. The procedures also include other means of disclosure such as interrogatories and notices to admit facts. 

Background Matters
Introduction
There are some background matters that need to be explained before the book deals with discovery. These concern management, courts, adversarialism and natural justice.

Management
The discipline of management centres on the study of goal seeking behaviour by organisations and institutions. Therefore, one of the core notions in management is that everything those in authority can control regarding an institution should be directed at helping the institution to achieve its goals. This is relevant to our inquiry because, like any other institution, a court is established to pursue a goal.

Management, however, does not rest on effectiveness alone. In a world where resources are scarce an institution must not only seek to be effective by achieving it goals, but to be efficient. It is efficient to the fullest possible extent when it achieves its goals with the least cost.

All of this can be encapsulated in some simple propositions. A rational institution or organisation seeks to achieve the best outcome or performance. This entails being effective by achieving the goals of the institution as far as humanly possible, and being efficient by doing so at the least cost.

Courts
When this thinking is applied to a court that is deciding a question of fact we can see that effectiveness has two parts. (i) A court should try to obtain, by whatever means, as much of the relevant evidence as it can. This is a task where a court can achieve in a major way unless some evidence is just beyond its grasp. Our later discussion of discovery is aimed directly as this part of effectiveness. (ii) A court seeks to obtain all the relevant evidence as a prelude and basis for the second and most important part of its effectiveness, namely making a correct finding of fact. In this task, however, a court’s effectiveness is limited because there is little science involved - inevitably it incorporates great uncertainty. 

Adversarialism
Traditionally courts have functioned in a manner that is highly adversarial. Adversarialism is a means of conducting a case where the court is largely a passive referee of proceedings and the dispute is largely in the hands of the parties. In recent times, however, an array of procedural changes has lessened the adversarial nature of proceedings to some extent.

The adversarial system fits in here because if it has any relevance at all, it is a means that can help the institution to achieve its goals. As our discussion of management has emphasised, the task of an institution such as a court is to pursue its designated goals with as much effectiveness and efficiency as it can muster.  Thus advesarialism can properly be only a means to an end not an end or goal in its own right. 

Clearly, this consideration alone should determine its use. If adversarialism is to be retained, and the extent to which it is to be retained, depends not on the attraction it has for lawyers but on functional adequacy. This asks a simple question. Does adversarialism help courts to deliver their goals of in a way that is both effective and efficient?

Our answer rests on an analysis that divides adversarialism into two types, protective and tactical. Protective adversarialism operates when a lawyer can represent a client as of right and in the hearing can call evidence, question a witness and put submissions to the court on any question that is before it. Protective adversarialism enables a barrister to wield a sword of honour in pursuit of justice. This must be preserved and protected. Tactical adversarialism occurs where the rules and practices allow a lawyer to attempt to win the case by means of tricks and stratagems that have no connection with the merits of the case. It is an inherent denial of justice and should be limited as far as is humanly possible. 

Under the proposals here this happens in two ways. First, the court engages in considerable case management in the process of assembling the evidence for the trial. It controls and directs the proceedings. Second, much of the ambush, camouflage, stalling and manoeuvring that tactical adversarialism engenders can take place because there is uncertainty about the issues in the case and the evidence that will be used. Our proposal seeks to fix both of these uncertainties and to do so early. Thus it leaves less scope for lawyers who may be inclined towards these seedy practices.

Natural Justice
The rules of natural justice apply to a proceeding where the decision maker can make a decision that can be adverse to a party. There are two basic rules. First, a decision maker must neither be biased nor display bias. This does not directly concern us here. Second, a party is entitled to a reasonable opportunity to present their case. This part of natural justice concerns us very much.

Revealing Evidence
To present their case a party ideally should have access to all the relevant evidence that is available. Sometimes, though, a party may be hindered by two factors. First, they do not know for sure the entirety of the evidence. Someone else may know but they do not. Second, they do not possess all relevant evidence because someone else does.

Discovery, along with other means of disclosure, seeks to provide some solution to these problems by revealing evidence. It seeks to arm a party with knowledge of and access to relevant evidence. While this directly assists the party, at the same time it assists the court because a court can make a proper decision only if it has all of the relevant evidence before it.

Explaining the Relevance of Evidence
While the obvious role of natural justice is to reveal evidence as just described, there is another important aspect. This has particular significance when a party hands over a document to another party in the disclosure process. To comply with the rules of natural justice the party handing over the document must do as follows. They must use their best endeavour to advise the receiving party and the court of any information they possess that explains how the document is relevant to the case, unless the relevance is totally obvious from the nature of the document.

Discovery
Nature of Discovery
To enable a court to make its decision on issues of fact in the most effective way it must have before it all the available evidence. By the same token, for a party to best present their case they also need access to the available evidence. To facilitate access to this evidence the rules of procedure of courts typically provide various standard devices requiring disclosure or evidence by both parties and non parties. The major forms of these devices are as follows:
(1)	Discovery
(2)	Interrogatories
(3)	Notices to admit
(4)	Requiring production of property
(5)	Disclosure of expert evidence
(6)	Subpoenas
(7)	Special procedures

Problems
If these devices for disclosure comprise a family, discovery is the problem child, especially in larger cases. It is not very effective because it does not clearly identify to what extent if at all, each discovered document is relevant to a case. It is not very efficient because it consumes if not devours both time and money since it is a major source of cost and delay. It is also open to abuse by parties. 

Solutions
Various attempts have been made to solve the problem but so far these have not been effective. Our proposal seeks to provide a solution that does work. It possesses several defining characteristics:
(1)	Court Control. The court largely controls the proceedings.
(2)	Discovery for Issues. The court does not engage in discovery for the evidence en masse (as happens with general discovery). Instead the court does discovery by reference to each issue of fact.
(3)	Renovated System of Pleading. If parties are to engage in discovery by reference to issues of fact, it is important that those issues are identified correctly and early. Our proposal achieves this with a renovated system of pleading that enables the parties to identify the issues of fact early in the case and in many instances after the first exchange of pleadings. 
(4)	Holistic Disclosure. The court performs discovery as part of a holistic process of assembling all the available evidence using all means of disclosure together. So the process for discovery is subsumed within a process that involves all means of disclosure as part of a comprehensive attempt to gather all relevant evidence and to ascertain the part each piece of evidence plays in proving one or other side of the case. 
(5)	Examination of Parties. The court and an opposing party are empowered to examine the other party, their lawyers and third parties in their search for relevant evidence. They can question the person as to the existence and location of evidence. The person’s answers in this regard may be taken as admissible evidence with regard to credibility.

Pleading the Case
In the past discovery has commonly involved general discovery in which the disclosing party hands over all documents relevant to the case. Since this involved more documents than were needed, and the relevance of any document was not readily apparent, this process was akin to searching a haystack for a needle.

Courts sought to rectify the problem by limiting discovery. One way to do that was by reference to the issues in the case. This is the logical way to go. That said, there was a problem because the current system of pleading is not very good at identifying the issues of fact in a case. This meant that any solution to the problem of discovery entailed redesigning the method of pleading currently used.

This redesigned system of pleading rests on a proper understanding of the relationship between the law, in particular the elements of the cause of action, and the material facts. There are two core propositions:
(1)	Element as a Generalisation of a Material Fact. Each element of a cause of action defines a category of facts. Therefore in litigation the type of fact that satisfies an element of a cause of action is a fact that falls within this category. Put another way, each element consists of a generalisation of the specific facts to which it applies.
(2)	Visibility of Relationship. The relationship between an element of a cause of action and a material fact that satisfies the element (that is, fits within it) is highly visible. For example if the element refers to a “weapon” it is immediately clear that a thing such as a dagger, a sword, a pistol, a rifle or a crossbow is a weapon. The telling point is that in each case we would not hesitate to say that these are weapons. In other words, the factual possibilities bear the same label as the element, namely “weapon”. (The main difficulty in this area, we can usefully note, will arise from questions of interpretation. For example there may be a doubt as to whether a screwdriver is a weapon. It is made as an instrument for carpentry but can be used as a weapon.)

For these and other reasons our system makes the elements of the cause of action an integral part of the pleadings. The advantage is that the elements, being a generalisation of a material fact, and visibly so, are devices for monitoring pleadings to ensure that they have incorporated the material facts either by asserting them in the case of a plaintiff or denying one or more of them in the case of a defendant. By this means the elements are a mechanism of search and control. By this means the pleadings make crystal clear, generally after the first exchange of documents, precisely what are the issues of fact.

Assembling the Case
The process of assembling the case takes place at a conference, which exercises wide powers and incorporates all aspects of disclosure. The salient features are as follows:
(1)	Statement of Proof No 1. Each party to the case brings to the conference a draft Statement of Proof, which describes in summary how they intend, as they now understand the position, to prove their case. This assists and guides the process of discovery. Later, when discovery is complete, the parties revise their Statement of Proof to incorporate the evidence disclosed at the conference. Obviously this Statement assists the parties in presenting their case, but it also assists the court when it tries the case.
(2)	Duty of Disclosure. Parties and non parties are under a duty of disclosure. This incorporates a duty to hand over any evidence in their possession, to indicate actual or possible sources of other evidence of which they know and to explain as far as they are able the relevance to the case of any evidence that they disclose. If needs be, a party amends their statement of facts to facilitate or accommodate this explanation.
(3)	Disclosure Based on Issues. Disclosure is directed towards issues. It is not done for the case overall (which, in the context of discovery, is called general discovery). A revised method of pleading identifies the issues of fact after the first exchange of documents in the pleadings. The pleadings achieve this identification by using the elements and consequences of the cause of action as devices for search and control.
(4)	Holistic Disclosure. Discovery is done as part of a holistic exercise that attends all matters of disclosure at a directions hearing whose purpose is to assemble all the evidence that will be used in the case.  This should achieve greater effectiveness - because all disclosure is done together the parties and the court can see the full picture, and in particular see how all the pieces of evidence relate to one another and to see if there are any gaps. This also creates efficiency by avoiding several separate applications and processes for the various types of disclosure. It also facilitates the court’s management of the trial.
(5)	Examination of Persons. The court itself and the opposing party can examine a party or a non party as to their knowledge and possession of relevant evidence. Their answers to these questions are made admissible in the case as evidence on credibility. 
(6)	Statement of Proof No 2. At the conclusion of the conference each party makes any necessary amendments to their Statement of Proof and then files it. This assists all involved, the court and the parties, in management of the trial.

Settling the Case
The book is not seeking to explain how a case might be settled. However, some of the proposals made here would bear on attempts at settlement. Consequently for the sake of completeness there is a brief mention of how this could occur.

Appraising Proposals for Reform
This proposal, along with other proposals, need to be tested. Typically courts possess procedural powers that are wide enough to allow a judge to try out our proposal and probably many other proposals as well. Given this, our proposal (and possibly some others) could be tested by the following means.

The Australian Law Reform Commission could draw up a list of suitable proposals and circulate them to judges of senior courts in Australia. It could then invite responses from judges. These responses could take several forms. For example, they may consist of comments on the proposals, additional proposals, suggestions for modifying a proposal and the response of any judge who tries out a proposal. In the next phase the Commission circulates the list of proposals with appropriate amendments that incorporate the previous batch of feedback. In describing a proposal the Commission should report any judicial responses. It should also make appropriate comments. For example, if a judge encountered a problem when implementing a problem these comments may include a suggestion for avoiding the problem. The idea is that the collective intelligence of the judiciary – the wisdom of the crowd in sociological parlance - can eventually work out a model for best practice as they try out solutions to the problem of discovery and communicate the results to other judges via the Commission.

Further Reading
This submission is a summary of and incorporates extracts from a book published in January 2011. The authors of the book are the authors of this submission. The book is entitled “Reforming the Law of Discovery”.