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.
Geoffrey drew my attention also to a pending Civil Procedure Act in Victoria which will have as its target the “just, efficient, timely and cost-effective resolution of disputes” with “overriding obligations” and codes of “sensible conduct”, plus early discovery and clearer case management powers. I am not sure what lies behind the conclusion that “legislation carried more clout than practice notes issued by a court”. What matters is whether the judge will pull his or her weight in imposing the obligations, whatever their source.
An article by David McGrath of e-Litigation Solutions called Australian ediscovery industry grows up gives a useful survey of the market and includes rather good photographs of some of the people whose names turn up here from time to time – Allison Stanfield of e.law, Eddie Sheehy of Nuix and Beth Patterson of Allens Arthur Robinson.
The products referred to as being in use in Australia include Ringtail, Nuix, Equivio, Clearwell, Relativity and eDiscovery Tools, all familiar in other jurisdictions, as are the big consultancy firms like Ernst & Young and KPMG. It is a trite observation, perhaps, but one nevertheless worth making, that the problems, the legislative and procedural solutions, and many of the service providers are the same everywhere. It is that which warrants the time which I spend flitting between all the relevant jurisdictions – not that I have to justify that to anyone.
If you are interested in all this, you ought to know about the Law Firm Knowledge Management Conference being organised by Janders Dean in Sydney on 12 August. Janders Dean seems to have its feet planted in the UK as well as Australia, and the conference is being run in conjunction with ILTA.
This Janders Dean blog entry is a nice example, incidentally, of how small this world is and how quickly news passes round it. Information is a currency, and Twitter and Google alerts are its exchange mechanisms. It does not make any difference if you are across the road or the other side of the world if you have interests in common with others.