The document discusses options to reform discovery procedures in federal courts to improve efficiency and reduce costs. It notes discovery costs are often disproportionate and outlines various reviews and reports recommending reform. Reform options discussed include limiting discovery to crucial issues, preparing discovery plans, increased judicial case management and scrutiny of discovery, and using technology like electronic document management systems.

1. Managing Discovery: discovery of documents in federal courts Patrick Collins Senior Legal Officer

2. 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

4. ‘… 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)

5. 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

6. 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)

7. 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)

16. Appointed experts Part-time Commissioners The Hon. Justice Arthur Emmett The Hon. Justice Bruce Lander The Hon. Justice Susan Kenny The Hon. Justice Berna Collier

19. Discovery in mega-litigation The breadth and complexity of issues disputed in mega-litigation set broad boundaries for the discovery of documents. Law Institute Journal vol 48(5) (2010)

20. 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.

21. Seven Network Limited v News Limited [2007] 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.

22. Discovery Costs: A Barrier to Justice? the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible

23. 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

29. Electronic Document Management Systems