When Discovery and Technology Meet: The Pre-Discovery Conference Michael Legg, Senior Lecturer, Faculty of Law, UNSW and C...
Overview <ul><li>What is a pre-discovery conference? </li></ul><ul><li>Pre-requisites for an effective conference </li></u...
Pre-discovery Conference <ul><li>&quot;meet and confer&quot;  </li></ul><ul><li>parties discuss the issues around discover...
Pre-requisites for an effective conference <ul><li>Know your case – what are the issues raised by the pleadings </li></ul>...
Pre-requisites for an effective conference <ul><li>Know your case – what are the issues raised by the pleadings: </li></ul...
Pre-requisites for an effective conference <ul><li>Know your client’s document retention/filing system, including their IT...
Topics for the Conference <ul><li>the scope of discovery; </li></ul><ul><li>strategies for conducting a reasonable search;...
Scope of Discovery <ul><li>What is the default position in the jurisdiction? </li></ul><ul><li>Does the judge have any kno...
Scope of Discovery <ul><li>During a pre-discovery conference, lawyers should seek to narrow the scope of their client's di...
Search Strategy <ul><li>keyword searches </li></ul><ul><li>concept searches </li></ul><ul><li>negotiation/agreement or uni...
Preservation <ul><li>steps taken to impose &quot;litigation hold&quot; </li></ul><ul><li>routine computer operations </li>...
Privilege <ul><li>Legal professional privilege attaches to: </li></ul><ul><li>communications, whether oral or in writing, ...
Privilege and ESI <ul><li>privilege is a fundamental common law right </li></ul><ul><li>&quot;privilege review&quot; preve...
NSW Practice Note SC Gen 7 <ul><li>12. Practitioners must ... meet to agree upon matters including … whether electronicall...
Quick-peek <ul><li>(1) the responding party makes potentially relevant information available to opposing counsel for revie...
Claw-back <ul><li>This differs from a &quot;quick peek&quot; agreement in that the parties agree to produce material in th...
Quick-peek and Claw-back <ul><li>The terms and conduct of an actual “claw back” or “quick peek” agreement will vary from c...
Waiver of Privilege <ul><li>In Australia waiver of privilege occurs where a party entitled to privilege &quot;performs an ...
<ul><li>Is discovery that includes privileged documents but on a without prejudice basis waiver: </li></ul><ul><ul><li>in ...
US Solution - FRE 502(d) <ul><li>&quot;A Federal court may order that the privilege ... is not waived by disclosure connec...
Co-operation <ul><li>Two levels: </li></ul><ul><li>honesty and good faith - comply with ethical and legal requirements </l...
Co-operation in Australia <ul><li>overriding/overarching purpose </li></ul><ul><li>Civil Procedure Act 2010 (Vic) s20: A p...
When Discovery and Technology Meet: The Pre-Discovery Conference Michael Legg, Senior Lecturer, Faculty of Law, UNSW and C...
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  • Supreme Court of Victoria, Practice Note 1 of 2007: Guidelines for the Use of Technology in any Civil Litigation Matter (2007) [2.8.2], [6.7], Supreme Court of New South Wales, Practice Note SC Gen 7 - Use of Technology , 9 July 2008 [12] and Federal Court of Australia, Practice Note CM6 - Electronic Technology in Litigation , 25 September 2009 [7].
  • Fed Court CM6 NSW SC Gen 7: 12. Practitioners must advise their opponents at an early stage of the proceedings of potentially discoverable electronically stored information and meet to agree upon matters including: the format of the electronic database for the electronic discovery, noting that metadata, mark-up or other “hidden” data will be automatically discovered if native format is used. Because of potential costs, the Court would ordinarily expect it should only be discovered where the relevance outweighs the cost the protocol to be used for the electronic discovery including electronically stored information the type and extent of the electronically stored information that is to be discovered how legacy or deleted data is to be dealt with. The existence of ESI that is not reasonably or readily accessible should be disclosed between the parties, but the Court would ordinarily expect that it would not need to be retrieved unless necessary for the conduct of the proceedings whether electronically stored information is to be discovered on an agreed without prejudice basis without the need to go through the information in detail to categorise it into privileged and non-privileged information and without prejudice to an entitlement to subsequently claim privilege over any information that has been discovered and is claimed to be privileged under s 118 and/or s119 of the Evidence Act 1995 and/or at common law. Such ESI could be produced separately on a CD-ROM or DVD and appropriately marked to enable the Court to determine any privilege issue.
  • In the Federal Court and Supreme Court of Victoria a party is required to discover documents that it is aware of at the time it makes discovery having conducted a reasonable search. A party must discover documents: that it relies on which adversely affect the party’s case and that support or adversely affect another party’s case. Federal Court Rules Order 15 rule 2(5).
  • how to avoid loss of privilege? search strategies can find privileged documents eg search on &amp;quot;privilege&amp;quot; and known lawyer&apos;s names - but not perfect
  • At common law, a client who would otherwise be entitled to the benefit of legal professional privilege, might waive that privilege and that waiver might be express or implied. See Mann v Carnell (1999) 201 CLR 1 at [28]-[29] and Osland v Secretary, Dept of Justice (2008) 234 CLR 275 at [35], [44]–[46] and [48]–[50]. The Evidence Act 1995, s 122 also provides for waiver and has been amended to adopt the test in Mann. See Explanatory Memorandum, Evidence Amendment Bill 2008 (Cth) at 27.
  • FRE 502(e) Controlling effect of a party agreement.— An agreement on the effect of disclosure in a Federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.
  • Sedona Conference Cooperation Proclamation
  • Federal Court Fast Track 5.1    The Court expects the parties and their representatives to cooperate with, and assist, the Court in ensuring the proceeding is conducted in accordance with the Fast Track Directions so that the real issues in dispute are identified as early as possible and are dealt with in the most efficient way possible.
  • Michael Legg

    1. 1. When Discovery and Technology Meet: The Pre-Discovery Conference Michael Legg, Senior Lecturer, Faculty of Law, UNSW and Consultant, Clayton Utz 15 April 2011 © Michael Legg
    2. 2. Overview <ul><li>What is a pre-discovery conference? </li></ul><ul><li>Pre-requisites for an effective conference </li></ul><ul><li>Topics for the Conference </li></ul><ul><li>Legal Professional Privilege/Client Legal Privilege </li></ul><ul><li>Cooperation in an Adversarial system </li></ul>
    3. 3. Pre-discovery Conference <ul><li>&quot;meet and confer&quot; </li></ul><ul><li>parties discuss the issues around discovery, especially if electronically stored information (ESI) is involved </li></ul><ul><li>judge may or may not be present </li></ul><ul><li>more informal environment compared to directions hearing - may still have transcript </li></ul>
    4. 4. Pre-requisites for an effective conference <ul><li>Know your case – what are the issues raised by the pleadings </li></ul><ul><li>Know your client’s document retention/filing system, including their IT system </li></ul><ul><li>Understand where the information relevant to the issues in the case can be found in your client’s systems </li></ul>
    5. 5. Pre-requisites for an effective conference <ul><li>Know your case – what are the issues raised by the pleadings: </li></ul><ul><li>“ It is ... the pleaded issues that will determine the outer limits of discovery obligations (assuming these obligations are not otherwise limited by an order of the Court)” – Sackville J in BT (Australasia) Pty Ltd v NSW </li></ul><ul><li>“ The scope of discovery is determined by the pleadings” – Spender J in Humphries v SAS Signage Accessories Supplier Pty Ltd </li></ul>
    6. 6. Pre-requisites for an effective conference <ul><li>Know your client’s document retention/filing system, including their IT system </li></ul><ul><li>where is ESI stored? central server, individual desktop or laptop computer, bottom draw, non-descript brown box </li></ul><ul><li>document retention policies </li></ul><ul><li>use and recycling of backup tapes </li></ul><ul><li>bring your helpful (but not too helpful) IT person </li></ul>
    7. 7. Topics for the Conference <ul><li>the scope of discovery; </li></ul><ul><li>strategies for conducting a reasonable search; </li></ul><ul><li>management of electronic documents: </li></ul><ul><ul><li>a strategy for the identification, collection, processing, analysis, review and exchange of electronic documents; </li></ul></ul><ul><ul><li>a strategy for management of electronic documents within databases, proprietary computer systems and other uncommon formats or repositories; </li></ul></ul><ul><li>a strategy for the preservation of electronic documents; </li></ul><ul><li>a timetable and estimated costs for discovery; </li></ul><ul><li>privilege; </li></ul><ul><li>the document management protocol to be used; and </li></ul><ul><li>areas of disagreement. </li></ul>
    8. 8. Scope of Discovery <ul><li>What is the default position in the jurisdiction? </li></ul><ul><li>Does the judge have any known preferences? Eg hates categories, loves general discovery </li></ul><ul><li>Judges have the discretion to tailor discovery to a particular case </li></ul><ul><li>Don’t forget the overarching/overriding purpose – balancing justice, cost and delay </li></ul>
    9. 9. Scope of Discovery <ul><li>During a pre-discovery conference, lawyers should seek to narrow the scope of their client's discovery obligations by: </li></ul><ul><li>narrowing the list of custodians of potentially relevant records, </li></ul><ul><li>limiting the relevant time frame, </li></ul><ul><li>considering alternative sources of information that may be cheaper and easier to access, </li></ul><ul><li>understanding how a clients IT systems functioned so that how and where information is stored can be used to explain why certain sources of data will or will not contain relevant information, and </li></ul><ul><li>excluding irrelevant computer systems. </li></ul>
    10. 10. Search Strategy <ul><li>keyword searches </li></ul><ul><li>concept searches </li></ul><ul><li>negotiation/agreement or unilateral decision </li></ul><ul><li>feedback loop </li></ul><ul><li>expert evidence? </li></ul>
    11. 11. Preservation <ul><li>steps taken to impose &quot;litigation hold&quot; </li></ul><ul><li>routine computer operations </li></ul><ul><li>backup tapes </li></ul><ul><li>need for / accessibility of legacy or deleted data </li></ul><ul><li>policy on reuse of laptops/blackberry/iPhone etc </li></ul>
    12. 12. Privilege <ul><li>Legal professional privilege attaches to: </li></ul><ul><li>communications, whether oral or in writing, made between a lawyer and a client (or in some cases, third parties); and </li></ul><ul><li>documents (whether delivered or not) prepared by the lawyer or client; </li></ul><ul><li>that are: </li></ul><ul><li>confidential in character; and </li></ul><ul><li>made or prepared for the dominant purpose of either; </li></ul><ul><ul><li>- enabling the client to obtain, or the lawyer to give, legal advice; or </li></ul></ul><ul><ul><li>- for use in actual, pending or anticipated litigation. </li></ul></ul>
    13. 13. Privilege and ESI <ul><li>privilege is a fundamental common law right </li></ul><ul><li>&quot;privilege review&quot; prevents loss of privilege and client can keep legal advices, prospects of success in litigation, litigation strategy etc confidential </li></ul><ul><li>ESI creates additional problems for privilege review - volume, metadata, email chains </li></ul><ul><li>privilege review is costly and time consuming </li></ul>
    14. 14. NSW Practice Note SC Gen 7 <ul><li>12. Practitioners must ... meet to agree upon matters including … whether electronically stored information is to be discovered on an agreed without prejudice basis: </li></ul><ul><li>without the need to go through the information in detail to categorise it into privileged and non-privileged information and </li></ul><ul><li>without prejudice to an entitlement to subsequently claim privilege over any information that has been discovered and is claimed to be privileged under s 118 and/or s119 of the Evidence Act 1995 and/or at common law. </li></ul>
    15. 15. Quick-peek <ul><li>(1) the responding party makes potentially relevant information available to opposing counsel for review; </li></ul><ul><li>(2) opposing counsel identifies which information is relevant to its requests; and </li></ul><ul><li>(3) the responding party then conducts a responsiveness and privilege review of the identified information only </li></ul>
    16. 16. Claw-back <ul><li>This differs from a &quot;quick peek&quot; agreement in that the parties agree to produce material in the usual manner without any intention that privilege be waived. If a privileged document is inadvertently produced, the producing party must inform the receiving party, who in turn must return the document and not use it in the litigation. </li></ul>
    17. 17. Quick-peek and Claw-back <ul><li>The terms and conduct of an actual “claw back” or “quick peek” agreement will vary from case to case. </li></ul><ul><li>For example, while no initial privilege review is necessary under a “quick peek” agreement, a party may still choose to conduct some form of review. </li></ul><ul><li>A “claw back” agreement may adopt a range of requirements in relation to the amount of time after production privileged ESI has to be returned, the procedures for when privileged ESI is to be returned and the standard or method of review of the ESI to be undertaken prior to production </li></ul>
    18. 18. Waiver of Privilege <ul><li>In Australia waiver of privilege occurs where a party entitled to privilege &quot;performs an act which is inconsistent with the confidence preserved by it&quot;. Mann v Carnell (1999) 201 CLR 1 at [28]-[29] and Osland v Secretary, Dept of Justice (2008) 234 CLR 275 at [35], [44]–[46] and [48]–[50]. and Uniform Evidence Law s 122. </li></ul><ul><li>Where waiver occurs there is also a risk that there may also be subject matter or issue waiver whereby the privilege in related communications or ESI are lost. </li></ul><ul><li>However, not every voluntary disclosure to a third party necessarily waives privilege. The law recognises that disclosure of privileged communications in certain circumstances, such as pursuant to a confidentiality regime, may avoid waiver. </li></ul>
    19. 19. <ul><li>Is discovery that includes privileged documents but on a without prejudice basis waiver: </li></ul><ul><ul><li>in the instant litigation? </li></ul></ul><ul><ul><li>in other disputes/litigation? </li></ul></ul>
    20. 20. US Solution - FRE 502(d) <ul><li>&quot;A Federal court may order that the privilege ... is not waived by disclosure connected with the litigation pending before the court—in which event the disclosure is also not a waiver in any other Federal or State proceeding.&quot; </li></ul>
    21. 21. Co-operation <ul><li>Two levels: </li></ul><ul><li>honesty and good faith - comply with ethical and legal requirements </li></ul><ul><li>parties work together to develop, test and agree upon the ESI being sought - reduce cost and delay </li></ul>
    22. 22. Co-operation in Australia <ul><li>overriding/overarching purpose </li></ul><ul><li>Civil Procedure Act 2010 (Vic) s20: A person to whom the overarching obligations apply must cooperate with the parties to a civil proceeding and the court in connection with the conduct of that proceeding. </li></ul><ul><li>self-interest? </li></ul>
    23. 23. When Discovery and Technology Meet: The Pre-Discovery Conference Michael Legg, Senior Lecturer, Faculty of Law, UNSW and Consultant, Clayton Utz 15 April 2011 © Michael Legg

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