Managing Discovery: discovery of documents in federal courts Patrick Collins Senior Legal Officer
The Hon R McClelland MP Attorney-General Terms of Reference The Commission’s objective is to identify law reform options to improve the practical operation and effectiveness of discovery of documents
‘… bills, cross-bills, answers, rejoinders, injunctions, affidavits, issues, references to masters, masters’ reports, mountains of costly nonsense, piled before them’. Charles Dickens, Bleak House (1852)
The real voyage of discovery consists not in seeking new landscapes but in having new eyes Valentin Louis Georges Eugène Marcel Proust (10 July 1871 – 18 November 1922) French novelist, critic, and essayist
The trigger for review ‘ The cost of discovery continues to be very high, and often disproportionate to the role played by discovered documents in resolving disputes.’ Australian Government Attorney-General’s Department, Access to Justice Taskforce, A Strategic Framework for Access to Justice in the Federal Civil Justice System (2009)
Other activity ‘ Procedures and costs should be proportionate to the nature of the issues involved.’ R Jackson, Review of Civil Litigation Costs: Final Report (2009)
British Columbia Justice Review Task Force, Civil Justice Reform Working Group, Effective and Affordable Civil Justice: Report of the Civil Justice Reform Working Group to the Justice Review Task Force (2006)
Chief Justice’s Working Party on Civil Justice Reform (Hong Kong), Civil Justice Reform: Final Report (2004)
Lord Woolf, Access to Justice: Final Report (1996)
fairness to the parties decision-making ‘ Discovery helps to ensure that parties in the adversarial process can proceed on an equal footing and without ambush, and that relevant materials are before the court’. Australian Government Solicitor, Submission DR 27 , 11 February 2011
Judicial case management Federal Court of Australia Act 1976 Part VB—Case management in civil proceedings 37M The overarching purpose of civil practice and procedure provisions (1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes: (a) according to law; and (b) as quickly, inexpensively and efficiently as possible. ... (3) The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
Discovery in mega-litigation The breadth and complexity of issues disputed in mega-litigation set broad boundaries for the discovery of documents.
Information management Betfair v Racing NSW The records of over 2.5 million customers occupied some 21 terabytes of memory, growing at 70 gigabytes per day.
Seven Network Limited v News Limited  FCA 1062 ...borders on the scandalous! The parties spent about $200 million on legal costs. Seven’s damages claim was between $195 and $212 million. Some stakeholders estimated that discovery costs are typically around 20% of legal costs.
Discovery Costs: A Barrier to Justice the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible
Competing tensions requesting party vs discovering party right to present the case time and money client vs lawyer duty to client duty to court parties vs court more active judges more information about the case
Limiting discovery to crucial issues in dispute
Preparing a list of issues, in order of importance
Outlining crucial issues at an initial directions hearing
Outlining the evidence on which the parties will rely at trial