The 2009 Access to Justice Taskforce report—established by the Commonwealth Attorney-General’s Department, which recommended that the ALRC conduct this Inquiry—noted that the high and disproportionate cost of discovery can impose a barrier to justice in court based dispute resolution. While the truth-seeking purposes of discovery may promote fairness in litigation, the commercial realities of contemporary discovery practice and procedure may threaten the very same fairness and justice sought to be achieved. 

For full details, see http://www.alrc.gov.au/news-media/media-release/alrc-releases-consultation-paper-discovery

This is a useful reference for assessing the level of ediscovery maturity in your organisation.  See full details of the EDRM alert below, along with links back to the EDRM website.

From: The Electronic Discovery Reference Model [mail@edrm.net]

“September 17, 2010 – Today we publish the third paper in the EDRM White Paper Series: The E-Discovery Maturity Model.

Prepared by Adam Hurwitz, BIA CIO, Business Intelligence Associates, Inc., this white paper examines the level of maturity of companies’ electronic discovery business processes:

E-Discovery has evolved and grown over the last ten years to become a necessary part of doing business. Companies have enormous quantities of electronically stored information that are clearly subject to discovery in legal and regulatory matters. Yet most companies struggle to incorporate e-discovery as a business process, mainly because of its vast scope and the evolving governing laws. Accurately accessing, searching and preparing the large volume of information that is stored on many different systems, created by numerous employees, working in different departments and diverse locations, in the short timeframe permitted, is a daunting task made more difficult by the stringent rules that govern how that process must occur to be legally defensible. more…

For the full EDRM White Paper Series listing, go to http://edrm.net/7596

All opinions expressed in the EDRM White Papers are those of the authors, of course, and not of EDRM, EDRM participants, the author’s employers, or anyone else.http://edrm.net/archives/8736“

You may view the latest post at

For the article itself, head over to  http://idm.net.au/article/008074-does-diy-ediscovery-measure

In this article commissioned by IDM Magazine, I explain the options that are available in Australia to gain assistance from specialist firms in responding to ediscovery requests.

The full article can be accessed online at IDM Magazine – http://idm.net.au/article/007901-australian-ediscovery-industry-grows.

According to their announcement, the draft EDRM Production Standard were prepared by Julie Brown of Vorys, Sater, Seymour & Pease LLP. The draft EDRM Production Standards document is intended to outline standards for production of electronically stored information in discovery. The standards are meant to be easily communicated by attorneys at a meet and confer by referring to the category of production.

Comments are welcome on the draft standards. They can be posted at the draft EDRM Production Standards page, edrm.net/5920, or sent to mail@edrm.net.

Australian e-discovery practitioners shuld take this opportunity to familarise themselves with the protocol edrm.net/5920, which reflects United States practice in this area.

The comments were made as part of a speech entitled “Billable Hours – past their use by date” given to open Law Week in Western Australia on 17 May, 2010.

His honour said that time-based billing discourages case planning, project management and cost benefit analysis.   It also encourages over-servicing and can lead to timesheet padding. 

His honour also noted that time-based billing reduces lawyer job satisfaction and builds distrust in the community.   He concludes that its dominance should diminish in favour of other billing methods which encourage efficiency and better allocate risk between lawyer and client.  He calls on the legal profession and regulators to take action in order to avoid consumers of legal services seeking alternative solutions.

The full text of His Honour’s speech is available at http://www.supremecourt.wa.gov.au/publications/pdf/Perth_Press_Club_Law_Week_20100517.pdf

For the terms of reference, see http://www.alrc.gov.au/inquiries/current/discovery/terms.html

THE government is considering law reform to the discovery process in civil litigation, and has called on legal experts to tell it what to do.

His honour well understands the issues raised by technology in the law and gave an excellent paper providing comprehensive coverage of the range of legal, ethical and practical issues arising.  Not least of these was the threat to the profession and the justice system caused by spiraling e-discovery costs.

The paper also looks at recent measures taken by the NSW Supreme Court, from the ‘pre-discovery conference’ through to the more frequent exercise of the principle of proportionality, to guide practitioners and protect their clients. 

With a broad review of the relevant rules, principles, practice notes, cases, judicial comment and the US experience this paper is an invaluable resource to anyone looking to gain or reinforce knowledge in this potentially complex area.

I commend this paper to all but particularly to Australian and New South Wales legal practitioners. 

It may be accessed through Law Link at – http://www.lawlink.nsw.gov.au/lawlink/Supreme_Court/ll_sc.nsf/vwFiles/Macready040309.pdf/$file/Macready040309.pdf

The case was Porter v Australian Prudential Regulations Authority [2009] FCA 1148.

For the full text of the article, head over to http://idm.net.au/article/007791-cracking-solicitor-s-safe.

Along the way, he came to the conclusion that containers of electronic materials such as CD ROMs, computer hard drives and backup tapes containing voluminous electronic materials, some relevant and some irrelevant, could be considered individual documents in their own right.

Background

The applicants were record companies or exclusive licensees of sound recordings prosecuting infringement of copyright claims.  The respondents were three Australian universities who provided computing facilities to staff and students.

The applicants believed that certain persons using the university computing systems were copying music from CDs, uploading them to websites hosted on the university systems and facilitating their distribution through the internet, all in breach of copyright.  In addition, there may be third parties including the university itself committing acts which authorised, aided and abetted the process.

They sought access to a wide range of university electronic documents including music files, image files,  compressed files, emails, files responding to a list of keywords and activity logs.  The purpose of the exercise was to (a) identify prospective defendants and (b) ascertain whether it had a claim against them.

As a preservation measure, pending the hearing of the preliminary discovery application, the parties had agreed to create a set of of CD ROMs, computer hard drives and backup tapes containing snapshots of the contents of various university servers at specific times during 2003. 

At the application, the parties proposed different methodologies for searching through the preserved materials.

The applicants sought discovery of the entire contents of three DLT IV tapes and two Exabyte 160 tapes comprising various snapshots of the the entire Physics server, a copy of the “Lewis Computer” and backup copies of spool files. 

They proposed to then search these items to find the information sought by the preliminary discovery application. 

The University sought to search the tapes themselves according to their own methodology and then make verified discovery in the usual manner. 

The university search methodology appeared extensive.  It included a variety of file extension and keyword searches.  It included emails attaching music or image files or containing keywords. It also included web log transactions responding to keywords.

It wasn’t enough however for the applicant’s forensic expert who criticised the approach on several grounds including:

• certain digital music file extensions were missing;
• filetypes should be identified by reference to the file header not its extension which can be manually altered;
• text search for words such as “song” and “music” failed to take into account the terminology or slang used
• words such as “music”, “download” and “song” are insufficient to locate all relevant material
• any base 64 encoded information which can be used to identify user activity will be lost
• there were problems in identifying compressed music files
• preparatory processes could interfere with the analysis

In response, the university contended that the applicant’s search methods would lead to the retrieval of large amounts of irrelevant materials.

What is a Document?

As the applicants were asking for the entire backup tapes to be handed over they sought to identify each backup tape as a separate document.  The respondents countered that a backup tape could not be considered a document within the language of the court rules.

As a preliminary matter, his honour sided with the applicants finding that a collection of electronic records on media such as CD ROMs, backup tapes or hard drives could be considered to be an individual document in its own right and subject to the discovery rules.  This was despite the fact that only part of its contents may ultimately be found to be relevant to issues in the matter.

Discovery Orders

As previously noted, the real issue in the case was which of the two competing search protocols proposed by the applicant and respondent was to be used in making preliminary discovery. 

In considering the alternatives, the judge found that “the narrow search tools and methods proposed by the Universities” was likely to result in insufficient discovery. 

On the other hand, the applicant’s method whilst recovering relevant materials would recover a great deal of “extraneous and irrelevant material” which could not be “readily segregated”.  Furthermore, some of those materials could be subject to privilege claims or confidentiality obligations.

In order to use the applicant’s search protocol but still protect the interests of third parties who may have a legitimate privilege or confidentiality claim, he ordered the following discovery steps:

• the backup tapes be handed over the applicant’s forensic examiner for searching according to the applicant’s proposed protocol; 
• retrieved materials were to be handed back to the respondents; 
• the respondents would then review the materials and make discovery in the normal manner claiming privilege and confidentiality where appropriate; and  
• the applicant’s would inspect the discovered documents.

 The questions of costs was stood over.