Comments for Discovery of documents in Federal Courts http://talk.alrc.gov.au Inquiry blog by the Australian Law Reform Commission (ALRC) Mon, 06 Sep 2010 10:03:21 +0000 hourly 1 http://wordpress.org/?v=3.0 Comment on Terms of Reference by Inquiry blog – Discovery of Documents in Australian Federal Courts « e-Disclosure Information Project http://talk.alrc.gov.au/?page_id=5#comment-63 Inquiry blog – Discovery of Documents in Australian Federal Courts « e-Disclosure Information Project Mon, 06 Sep 2010 10:03:21 +0000 http://talk.alrc.gov.au/?page_id=5#comment-63 [...] 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 [...] [...] 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 [...]

]]> Comment on The challenge of mega-litigation by Patrick Collins http://talk.alrc.gov.au/?p=14#comment-19 Patrick Collins Tue, 06 Jul 2010 05:50:59 +0000 http://talk.alrc.gov.au/?p=14#comment-19 The ‘train of inquiry test’ for discoverable documents as propounded in the <em>Peruvian Guano</em> case was devised in 1882 and remains applicable in modern, complex litigation in the federal courts 128 years later. Technological developments during that time have changed the nature of discovery of documents, with the advent of email and other electronic documents. While the federal courts might not ordinarily order such broad discovery as a matter of course, the courts retain discretion to require disclosure of all relevant documents including those relevant only because it would lead to a train of inquiry. Is it time to depart from the classic test for discovery of documents in the federal courts and, if so, what should be the test for determining whether a document is discoverable? The ‘train of inquiry test’ for discoverable documents as propounded in the Peruvian Guano case was devised in 1882 and remains applicable in modern, complex litigation in the federal courts 128 years later. Technological developments during that time have changed the nature of discovery of documents, with the advent of email and other electronic documents.

While the federal courts might not ordinarily order such broad discovery as a matter of course, the courts retain discretion to require disclosure of all relevant documents including those relevant only because it would lead to a train of inquiry.

Is it time to depart from the classic test for discovery of documents in the federal courts and, if so, what should be the test for determining whether a document is discoverable?

]]> Comment on The challenge of mega-litigation by Camille Cameron http://talk.alrc.gov.au/?p=14#comment-16 Camille Cameron Mon, 05 Jul 2010 09:30:42 +0000 http://talk.alrc.gov.au/?p=14#comment-16 Effective case management is one answer, but the challenge is to sort out what we mean by "effective case management". In the context of concerns about mega-litigation and disproportionate discovery and costs, a very robust, interventionist case management is required. We need more information about judicial case anagement styles, what works and what does not work. While case management has come a long way in Australia and in other common law jurisdictions, I think we have to revisit the discussion and descend to the level of specific questions, for example: what are examples of good case management practices? why? why are they effective? what are examples of less than fully effective case management practices? why ineffective? how can case management practices be improved? what added resources are required to implement effective case management training for judges (we cannot assume they are all born case managers)? I suspect there are still many judges who are not comfortable with the degeree of intervention that is required by modern complex litigation and the increasing demands it is putting on limited court resources. I will offer one example here of the kind of interventionist case management that I have in mind.One of the issues that requires more consideration in the context of discovery, whether in mega litigation or not, is the connection between discovery and pleadings. As long as we allow pleadings practices to continue in their present form, we will not succeed in making otherwise unmanageable litigation manageable. Here I endorse the sentiments expressed by Roger Forbes (see "Excess or Necessity? Lawyers reflect on C7 litigation") [see Links menu, right] about the need for more judicial intervention at an early stage to define issues. In my view, pleadings of the length found in the C7 case should not be allowed. Early intervention by a judge at the issue identification stage is one essential step to control the excesses of modern, complex litigation. Limting the issues at an early stage will have an impact on the time, cost and duration of other stages - dscovery, expert and other evidence, trial, closing submissions. There is another issue that is fundamental but rarely dealt with as directly as is needed - the incentives created by how lawyers bill for their time and how costs are apportioned, and the impacts these have on the conduct of litigation. As many commentators have observed, economic activity follows the most rewarding path. Perhaps we have to thnk seriously about alternative financial models. Any consideration of discovery reform will be incomplete if these costs issues are not also considered. Finally, while the binding arbiration model is attractive, the danger is that we will choose this option because it is too hard to address the problems of modern litigation. There is arguably a trend in recent government policy satatements - for example, the Commonwealth Access to Justice Report - to favour ADR and to give inadequate attention to a vital question: what resources do our courts, as community institutions playing a fundamental role in a democratic society, need to do their job effectively? Thanks for this opportunity to comment. Effective case management is one answer, but the challenge is to sort out what we mean by “effective case management”. In the context of concerns about mega-litigation and disproportionate discovery and costs, a very robust, interventionist case management is required. We need more information about judicial case anagement styles, what works and what does not work. While case management has come a long way in Australia and in other common law jurisdictions, I think we have to revisit the discussion and descend to the level of specific questions, for example: what are examples of good case management practices? why? why are they effective? what are examples of less than fully effective case management practices? why ineffective? how can case management practices be improved? what added resources are required to implement effective case management training for judges (we cannot assume they are all born case managers)? I suspect there are still many judges who are not comfortable with the degeree of intervention that is required by modern complex litigation and the increasing demands it is putting on limited court resources.

I will offer one example here of the kind of interventionist case management that I have in mind.One of the issues that requires more consideration in the context of discovery, whether in mega litigation or not, is the connection between discovery and pleadings. As long as we allow pleadings practices to continue in their present form, we will not succeed in making otherwise unmanageable litigation manageable. Here I endorse the sentiments expressed by Roger Forbes (see “Excess or Necessity? Lawyers reflect on C7 litigation”) [see Links menu, right] about the need for more judicial intervention at an early stage to define issues. In my view, pleadings of the length found in the C7 case should not be allowed. Early intervention by a judge at the issue identification stage is one essential step to control the excesses of modern, complex litigation. Limting the issues at an early stage will have an impact on the time, cost and duration of other stages – dscovery, expert and other evidence, trial, closing submissions.

There is another issue that is fundamental but rarely dealt with as directly as is needed – the incentives created by how lawyers bill for their time and how costs are apportioned, and the impacts these have on the conduct of litigation. As many commentators have observed, economic activity follows the most rewarding path. Perhaps we have to thnk seriously about alternative financial models. Any consideration of discovery reform will be incomplete if these costs issues are not also considered.

Finally, while the binding arbiration model is attractive, the danger is that we will choose this option because it is too hard to address the problems of modern litigation. There is arguably a trend in recent government policy satatements – for example, the Commonwealth Access to Justice Report – to favour ADR and to give inadequate attention to a vital question: what resources do our courts, as community institutions playing a fundamental role in a democratic society, need to do their job effectively?

Thanks for this opportunity to comment.

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