No disclosure in New South Wales Equity Division without exceptional circumstances

September 11, 2012

I have referred before to Practice Note SC EQ 11 in the Equity Division of the Supreme Court of New South Wales. Its key paragraph reads as follows:

The Court will not make an order for disclosure of documents (disclosure) until the parties to the proceedings have served their evidence, unless there are exceptional circumstances necessitating disclosure.

I refer to it again because I have two panels coming up involving Australian judges. On Wednesday of this week I am at IQPC’s Information Governance and eDiscovery for Financial Services Conference at Canary Wharf, London. My first panel consists of the UK’s Senior Master Whitaker and the Honourable Justice Robert McDougall of the Supreme Court of New South Wales.

Next week, I am at IQPC’s Information Governance and eDiscovery Strategy Exchange in Washington, where I am moderating a large judicial panel (with judges from the US, the UK, Ireland and Australia) which includes the Honourable Justice John Sackar of the Supreme Court of New South Wales. I intend to ask both of them about the Practice Note.

We obviously want to hear how it is working in practice – my understanding is that many, if not most, of the applications made under it have failed either because they were premature or because the applicant did not make a case for “exceptional circumstances”.

I also hope to provoke a discussion with wider implications – whilst it seems unlikely that many other jurisdictions will follow the lead taken by the New South Wales Equity Court, it will be interesting to challenge the opposite idea – that parties must collect and disclose large volumes of documents which no one will ever read, at prohibitive expense.

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Australia, New Zealand and Hong Kong claiming eDiscovery attention

May 2, 2012

Australia, New Zealand and Hong Kong only look close together when viewed from a long way away. They all have a common law eDiscovery tradition, but it is coincidence of timing rather than any specific commonality which groups them together in this post. A group of articles has bunched together in the electronic equivalent of my in-tray (Evernote, since you ask) and it is convenient to pick them off together.

So far as Australia is concerned, I have written recently about Practice Note SC EQ 11 which aims to limit disclosure of documents in the Equity Division of the New South Wales Supreme Court. That no doubt will be discussed at Chilli IQ’s 6th Information Management and eDiscovery Summit, due to take place in Sydney on 19 and 20 June. Confirmed speakers include Michelle Mahoney, Director of Legal Logistics at King & Wood Mallesons, and Browning Marean of DLA Piper US.

The subject headings cover the full range of current talking-points. The unambiguously named Predictive coding: what is it and how could it change the practice of law in Australia clearly aims to give this subject its due.  Michelle Mahoney knows more than most on on How to best manage outsourcing eDiscovery and hosting. Browning Marean is always lucid on legal holds. Add Nuix on Integrating legal technology into your organisation and you conclude that Chilli IQ are not stinting on quality speakers. Read the rest of this entry »


Australian Discovery Report stresses Case Management, Consistency and Understanding

June 12, 2011

The Australian Law Reform Commission published its final report Managing Discovery: Discovery of Documents in Federal Courts at the end of May. The net effect of the recommendations is conveniently set out in the final issue of the ALRC’s Discovery e-News:

The ALRC believes that the net effect of its recommendations will be that:

  • judicial officers are encouraged and supported in their role as robust case managers;
  • parties and practitioners will have a clearer understanding of what is expected of them in relation to discovery obligations;
  • the scope of discovery will be defined more clearly and in the context of an understanding of how information is stored and can be accessed; and
  • the clarity of expectations and certainty in obligations will help to maintain proportionality in discovery costs.

The Final Report runs to 384 pages and there is a convenient Summary Report which, at 28 pages, carries the main points of interest.

The key themes on page 10 of the summary will be recognisable to anyone interested in this area:

  • while the reform trajectory in the Court was applauded, there were inconsistencies in practice across the bench;
  • robust judicial case management is critical in facilitating the resolution of disputes in the Court;
  • rigid rules of general application impose unwanted restrictions on judicial discretion;
  • expectations of parties in the Court are not always clear—uncertainties that lead to inconsistency of practice and potentially an increase in costs; and
  • there is an uneasy tension between the time and money that discovery can involve and the right of parties for a reasonable opportunity to present their case. Read the rest of this entry »

ALRC Update on the Australian Discovery Inquiry

April 20, 2011

Patrick Collins, Senior Legal Officer of the Australian Law Reform Commission, made a presentation at an ediscovery conference in Melbourne last week. I don’t miss many common law ediscovery conferences, but I was not at this one, and I am obliged to Geoffrey Lambert of e.law for pointing me to a summary of Patrick Collins’ presentation.

I noted in a recent post about a Singapore case that those of us concerned with the development of eDisclosure / eDiscovery rules watch closely what is happening in other jurisdictions. Some of us who were involved in the new UK e-Disclosure Practice Direction 31BSenior Master Whitaker, Vince Neicho of Allen & Overy and me – were pleased to be invited to give some input into the consultation phase of the Australian Discovery Report, and will be equally pleased, in due course, to see what recommendations emerge and find favour – it all helps inform our next round of discussions.

I see, incidentally, that our Ministry of Justice has a pretty new web site, and has redirected existing urls to an archived copy. I am sure that makes sense for them, but those of us with links into the site will have to change them all. Since I make a point of linking to the rules and the PD every time I refer to them, that is somewhat tiresome.

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Consultation paper on Discovery in Australian Federal Courts

November 16, 2010

If Lord Justice Jackson’s review of Civil Litigation Costs included the most important summary of disclosure and e-disclosure of 2010, the Australian Law Reform Commission’s Discovery Review will be the key analysis of 2011. The Attorney General’s terms of reference attracted my attention because of the reiterated phrase “as early as possible”, which seems the right priority for all jurisdictions which require discovery of documents.

The ALRC has now published a Consultation Paper. The closing date for submissions is Wednesday 19 January 2011. So far, I have skimmed it rather than read it in my short gap this week between conferences in London and in Washington. My quick skim was sufficient to see that there is much useful thinking in it and I look forward to reading it properly on the plane.

I did, however, pick up two references in it to things which I have written. One of them, read out of its context, has the potential to misrepresent my views in much the same way as a few carefully chosen words from a play review on a theatre billboard can subvert the original sense. I stand by the quotation, but its words were something I had set up in order to knock them down, not my own opinion. Read the rest of this entry »


Inquiry blog – Discovery of Documents in Australian Federal Courts

September 6, 2010

An Inquiry into the law, practice and management of the discovery of documents in litigation before Australian Federal Courts was launched by the Attorney-General in May 2010. I wrote about it at the time (see Terms of Reference for Australian Discovery review), and see it as one of the most important pending developments in discovery (and therefore necessarily in electronic discovery / e-disclosure) in hand anywhere in the world at the moment. The other, of course, is the UK’s e-disclosure practice direction and electronic documents questionnaire which will take effect on 1 October 2010.

Masters Conference for legal professionalsThese two initiatives have significance, even for the US as it struggles with the implications, in time and in costs, of handling electronic documents proportionately. I am moderating a panel at the Masters Conference in Washington on 4 to 6 October which will consider these UK and Australian developments and will suggest that even the US has something to learn from them.

The duty of consulting and reporting on discovery falls on the Australian Law Reform Commission (ALRC). The ALRC has set up a blog called Discovery of Documents in Federal Courts to report on its progress, to raise subjects for discussion and to capture comments. The Attorney-General’s Terms of Reference can be found there; as I said in my original post, the reiterated use of the words “as early as possible” points the enquiry in what is obviously the right starting place. Read the rest of this entry »


Australian ediscovery round-up

June 28, 2010

My conclusion after my recent visit to Sydney was that every jurisdiction which engages in ediscovery thinks that it is behind the others. This is certainly not true of Australia, and  Master Whitaker and I were not merely being polite when we said that we had come to find out what is happening there for our own benefit, as well as bringing news of developments in the UK.

There is enough going on down there at the moment to warrant a quick summary. My own accounts of our visit to Sydney are here and here,  and I wrote before I went of the Attorney General’s Terms of Reference for a Discovery review.

Since then, Geoffrey Lambert of e.law has tipped me off about a further development, the Civil Dispute Resolution Bill 2010 (Bill) which, if enacted, will require a “Genuine Steps” process by which parties must show formally that they have tried to settle a dispute, with costs implications if they do not do so. I am slightly chary of developments like this – the experience in England & Wales of court-driven settlement is that the mechanics of managing the dispute take second place to attempts to impose a rapprochement which is itself expensive and not necessarily what the parties want.  There is a distinction (for which we must thank Professor Dame Hazel Genn QC) between “a just settlement” and “just a settlement”, and there is a difference too between mediation to resolve a dispute and co-operation to conduct it efficiently.  If judges spent less time on the former and more time imposing the latter, we might see the costs of litigation come down whilst allowing the parties to have their day in court. It will be interesting to see if Australia can take the benefits of alternative dispute resolution without losing the drive towards more efficient procedures for managing contention. Read the rest of this entry »


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