Disclosure & Discovery in Australian Courts

Queensland Young Lawyers (QYL) and the barristers at Level Twenty Seven Chambers curated a series of four CPDs spanning 2022 to provide young lawyers with knowledge essential to their role.

The final installment ‘Disclosure’ was facilitated by Sarah Spottiswood and Oliver Cook. Sarah and Oliver are barristers practising from Level Twenty Seven Chambers (Brisbane, Australia) but prior to commencing at the Bar they were solicitors in government departments and an international law firm respectively. They will draw from a deep understanding of the litigation process to highlight: 

1. What disclosure is from a legal and technical perspective 
2. The different obligations in Australia's State and Federal Courts 
3. When disclosure is/not appropriate in litigation
 
They also answer common questions about practical issues for those subject to disclosure obligations.

Who should listen?

All lawyers with litigation practices, especially those 1-5 PQE.

PRESENTERS

Sarah Spottiswood (Barrister, Level Twenty Seven Chambers)

Since coming to the Bar, Sarah has been instructed in a wide range of commercial disputes. Her practice spans a broad spectrum of industries, including aviation and transport, construction and infrastructure, finance, government, IT, property, environment and resources. With seven years' experience working as a solicitor in public law litigation for both the UK and Australian governments, Sarah draws on her experience in constitutional and administrative law cases. She has a significant background in international law, having advised a UK government department on international trade issues and represented the UK at the UNCITRAL Working Group on Investor-State Dispute Settlement..

Oliver Cook (Barrister, Level Twenty Seven Chambers)

Advising and appearing for parties in a variety of sectors, including franchising, insurance, consumer protection, construction, government and insolvency in a wide range of commercial matters, Oliver draws on his experience as a commercial disputes solicitor at Herbert Smith Freehills in Brisbane and Tokyo. While a solicitor, he was involved in large-scale and cross-border disputes. As such, he is familiar with heavy and complex matters requiring the coordination of large teams of lawyers and experts, often requiring the adoption of eDiscovery, litigation databases and remote hearing technology.

MATERIALS
This was recorded live as a seminar/webinar. The video recording, PowerPoint and transcript are available here.

Did you miss previous seminars? Check out the seminar archive on Level Twenty Seven Chambers' website for the video recordings and associated materials produced by the speakers.

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Website: www.level27chambers.com.au

Transcript

WHY IS DISCOVERY IMPORTANT?

Oliver Cook (OC): It does gives you an opportunity to make an impression on senior associates, partners and members of the counsel team. When you know the documents you are able to speak with authority about the case. I think that is something that is really valuable, particularly as a junior solicitor. To illustrate the importance of discovery to a matter generally, we have a very sophisticated chart here on the screen [slide 3], to illustrate the centrality of discovery to this process. This is how I see a matter developing and resolving. 

You start with your case theory, your theory of the world, how you see things going. You then need to think about how it is that you are going to prove that case theory. Of course, whatever your view of the world is, there are going to be issues that you need to overcome and prove in order to be able to succeed in the proceeding. 

In doing that, you need to think about where you are going to find material that supports what you say, the view of the world is or what your case theory is. There are countless repositories of documents now, emails are the obvious one, but text messages, WhatsApp messages, specific project based communication software, things like Hik-Connect. You are going to need to sift through all of that material to find the documents and the material that is relevant to the issues that you have identified. 

Then you need to filter through all of that stuff in order to work out what is actually relevant. Now, anecdotally, despite there being millions of documents that could be plausibly relevant in a case, often cases turn on ten or fifteen documents. I have heard that so many times from Silks and partners and other senior people. It is difficult to believe when you are at the outset of the discovery and there are a million documents that you need to go through, it is a strange proposition that a bit of litigation that is worth hundreds of millions of dollars can turn on ten or fifteen documents but that does seem to be the case. Now, that is not to say there aren't other cases where points can be drawn from patterns of communication across a period of time between multiple different people. You can use lots of documents to demonstrate recording lines, informal reporting lines, all of that sort of stuff. But I suppose what I am driving at is that you need to interrogate the universal documents in order to be able to make good what you say, what your case theory is. As part of that, your case theory evolves, you find things that cut across what your case theory might be, you find things that are challenging or present problems for your argument. You need to know what they are in order to successfully prosecute your case. 

In short, I guess, discovery is at the heart of litigation. It may not be the most exciting thing all the time but it absolutely is right at the center of the litigation cycle. Doing discovery really does allow you the opportunity to spend time with the documents, which as I said earlier, is a luxury that more senior members of the team who are involved in strategic decision making might not have and so your work really informs the strategic decisions that they are making.

Sarah Spottiswood (SS): Just to add to what Ollie said, when it comes to the evidence in a trial, contemporaneous documents can be some of the most important evidence that you have because the other kind of evidence, testimony from witnesses, is often unreliable, because people do not recall things as well as they ought to. Whereas the documents are often some of the most important proof that you can have in a proceeding. So it is a very important process. 

[Slide 4] On to what we plan to speak about tonight. First of all, we will discuss the discovery and disclosure regimes in Queensland courts and in the Federal Court. Unfortunately for us, in Queensland, we have to not only get used to two sets of rules but two different words for describing the same thing. In Queensland, we use the word ‘disclosure’ which is the same as the UK does. In the Federal Court they use the word ‘discovery’ which is an American term to describe the process. So, it is disclosure and discovery, we will just use the words interchangeably throughout the session tonight. 

First of all, when we talk about discovery regimes, we will talk mainly about the basic rules of discovery. There are lots of matters in the rules that we will not cover tonight, such as pre-litigation discovery and nonparty disclosure. We will not look at those sorts of things but we can deal with them in another session or answer any questions if you have questions about those. What we are really focusing on is the standard rules of discovery in each different jurisdiction. 

The second topic we will speak about tonight is going into the process of technology assisted review and how the courts have responded to using e-disclosure exercises, e-disclosure platforms in discovery exercises. There is quite a bit of case law on that now, Ollie will talk to that point. 

Thirdly, we will speak about some of the practical issues and questions that arise relating to discovery. I should say, please feel free to chime in and ask questions at any time throughout this evening. Ollie is a pretty friendly guy and I will do my best, or we can answer questions at the end as well.

OC: For those online, please also feel free to type questions into the chat and we can address those at the end.

QUEENSLAND COURTS & FEDERAL COURTS DISCLOSURE PROCESSES

SS: [Slide 5] Okay, onto the rules. Under the Uniform Civil Procedure Rules in Queensland, it is called disclosure. You will find the rules in chapter seven of the UCPR. Disclosure rules apply automatically in proceedings started by a claim. How do you know if your proceeding is valid by a claim? Just look at the file and you look at the claim but usually it is cases where there are pleadings. In Queensland you can get discovery or disclosure in proceedings started by originating application but the court has to audit that. The key rule in Queensland for discovery is rule 211 and that relates to the parties duty of disclosure. Each party has a duty to disclose each document in their possession or under their control that is directly relevant to an allegation in issue. What do I mean by directly relevant? It is basically something that tends to prove or disprove an allegation in issue. How do you work out the allegations in issue? You go back to your pleadings and you see what matters are not admitted or what matters are denied, those are the allegations or the issues that have been joined issue in the reply are also in issue in your proceedings. What you are looking for are documents that prove those matters or undermine those matters in the pleadings.

In Queensland as well the duty of disclosure is an ongoing duty, that is a very important thing to advise your clients of at the outset. In addition to informing them that, inform them that they will need to provide directly relevant documents throughout the course of the litigation. The reason you need to explain to your clients fully the obligation of disclosure relates to two things. There are various consequences of not complying with your disclosure obligations in Queensland, including that you cannot rely on those documents without leave, could be in contempt of court, costs consequences but also more serious consequences like even if it disrupts the other party's ability to have a fair trial. So, you need to explain that it is a very important process to your clients but also, at the trial, the solicitor needs to sign a certificate to say that they fully complied with the duty of disclosure. So, it is really important to protect yourself in a trial, that you are able to certify that you told them of their obligations and, that to the best of your knowledge, they have performed them. In Queensland the disclosure is performed by providing a list of documents which sets out the documents and also sets out documents to which privilege is claimed and that you deliver to the other party a copy of those documents.

[Slide 6] Moving on to the Federal Court rules. Discovery is in part 20 of the Federal Court rules. A key difference between Queensland and in the Federal Court is that in the Federal Court discovery is not available as of right. It must be from the just resolution of proceedings, that is in rule 20.11 and it must be ordered by the Court, that is in rule 20.12. The Court can order discovery by consent orders, the parties can disagree “Hey, this is a really big documents case. We're going to do disclosure or discovery”, or you can make an application for discovery. 

In the Federal Court there are two kinds of discovery, standard discovery and non-standard discovery. 

Standard discovery is set out in rule 20.14. Basically, you disclose documents that are directly relevant to the issues raised in the pleadings or affidavits, that after a reasonable search the party is aware of and that are in the party’s or have been in the party’s control. That looks similar to the duty of disclosure in Queensland, except first must be ordered. But then in the Federal Court there is also another layer of requirements about what documents to disclose. Those are documents that the party intends to rely on, documents that adversely affect the party’s case, or support another party's case. So, there are a few more layers to get through about what documents to disclose in the Federal Court. 

Moving on to non-standard discovery, in rule 20.15, basically, non-standard discovery just modifies the standard discovery process. The most obvious way that is done in the Federal Court is through developing categories of discovery so you are not disclosing documents that are directly relevant to every single issue in dispute, you are agreeing with the other side, particularly categories that are most relevant and most important to your case. The idea is that that would, oftentimes, reduce the amount of discovery. Although of course, it could extend what is provided, depending on the case.

OC: I suppose, just to jump in Sarah, that the process of conferring about categories for discovery in the Federal Court, whilst it can have the effect of narrowing the material you produce to the other side, it is another interlocutory step that can itself give rise to satellite litigation. I have been involved in a case recently where the parties were unable to agree on the scope of categories for discovery, the consequence of that has been that we have been to court twice now to fight basically about the categories. The court has ordered the parties to confer and try and resolve them. But that just has not been possible because the parties are at loggerheads over what it is that is actually central to the matters in dispute. So, whilst it is a more flexible approach, I would say, than the Federal Court rules in that the parties that are able to come to that sort of narrower view about what is to be disclosed, it can become the source of some dispute which can draw things out further.

SS: It is very common to have this category rights approach in the Federal Court which can create timetabling and procedural issues. But, just as in Queensland, there is an ongoing obligation of discovery. So once the court has ordered that you provide discovery, you need to comply with that obligation. With all proceedings you also give discovery by serving a list on all parties, that includes the categories of documents provided, as well as those that you have not searched for, or claimed privilege over. 

I should say, I am going to backtrack a little bit to Queensland. In both jurisdictions, there are practice directions that you need to be aware of when you are doing a discovery exercise. In Queensland, you need to be aware of, I put them on my notes but I printed off a different version. I think there are two or three practice directions to be aware of, 8/2018 is one about the efficient conduct of litigation and that has a bit about document management. Then there is another one about effective document management in the Supreme Court, sorry I do not have the precise numbers. Then there is one in the District Court as well to be aware of when you are conducting litigation in the District Court. In the Federal Court there are three key practice notes to be aware of. Practice note 1 has something to say about discovery and discovery applications. Technology and the court practice note is also relevant when you are doing the litigation and the e-disclosure platform. The commercial incorporations practice note also has some sort of innovative suggestions on discovery things like Redfern schedules and ways to deal with large commercial litigation. You will see a little bit more detail with those practice directions.

OC: I hope everyone was taking notes and paying close attention because Sarah is now going to take a quiz.

SS: I hope this is going to be more fun than fearful. I should say there is no wrong answer and no one is looking. It is all okay even if you do get every single answer wrong. The important thing is to have fun. For this quiz tonight, if the answer is ‘in the Supreme Court’ put your hands on your head. If the answer is the ‘Federal Court’, put your hands on your back. If the answer is ‘both’, put your hands like this [one hand on head, one hand on back]. I won't be looking, there is no judgement. Play along if you would like. 

The first question, in which court do the rules speak of “a duty of disclosure”? It is the Supreme Court. Unanimously, everyone agrees it is the Supreme Court. 

OC: I am sure everyone at home got that. 

SS: In which court must disclosure be ordered before it can be given? Correct, the Federal Court. I would have accepted this [one hand on head, one hand on back] because in the Supreme Court in an application you need an order directing disclosure. 

Third question, in which court is the duty of disclosure ongoing? Everyone has got it right, both in the Supreme Court and Federal Court you have an ongoing duty of disclosure. 

In which court is there an obligation to disclose documents which are directly relevant to the issues in dispute? Well done. That is both. 

In which court is the method of disclosure discharged by providing a list of documents?

OC: A lot of concerned faces.

SS: The answer is actually both. You have an obligation to provide a list of the documents that sets out all the documents in which the duty applies and to which privilege is claimed over. 

Next question, which rules expressly provide for a standard of disclosure or specific disclosure? For instance by categories. I should say, in the Supreme Court, the rules are flexible enough. I would have accepted both. You can get orders to modify the usual discovery rules if it is in the best interest of a particular case.

OC: Sarah Quizmaster, question for you. Which are the superior rules?

SS: Hmmm [hand on head and back, laughs].

TECHNOLOGY ASSISTED REVIEW

OC: Alright, I am going to talk quickly now about technology assisted review. Before I begin, I am interested to know, a show of hands in the audience, has anyone been involved in matters whether it is a predictive coding or algorithmic sort of review processes? For the benefit of those online, one or two people putting their hands up – there are a 100 people here [laughs]. 

For those who don't know, technology assisted review basically involves an initial review of a set of documents from which coding is derived and then applied to conceptually similar documents within the data set. In simple terms, it involves reviewers effectively training an algorithm to recognise what a conceptually relevant document is within a dataset. It is a relatively new area, I say relatively because it has been around for a while but it is only being applied relatively recently in a litigation context. 

The judicial treatment of technology assisted review, or TAR, is something that is evolving but I suppose the foundational case for TAR is a 2016 Victorian Supreme Court decision. For those interested, it is McConnell Dowell Constructors (Aust) Pty Ltd v Santam Ltd & Ors [2016] 51 Victorian reports 41. Sure there are a lot of people at home Googling that right now or plugging those citations into LexisNexis. That is the first case in which there was detailed judicial consideration of technology assisted review as a means by which a party could discharge their obligation of disclosure. [Slide 7] I think it is a useful example of what technology assisted review can do and how it operates. It was a relatively novel circumstance. The case, I mean this part of it is not novel, it related to it an insurance claim which related to a contract for the design and construction of a natural gas pipeline in Queensland. I do not think that is particularly novel. What was novel is that the parties agreed about the task of discovery was going to be manifestly disproportionate to the value of the claim. That is, the cost and time associated with completing discovery. The additional document gathering process in that case, identified approximately 4 million documents for review, that is the universe of documents that are plausibly irrelevant to the claim. With that 4 million documents the parties applied search terms in the ordinary way, by date range, so they are looking at a snapshot. Sure, it was a relatively large snapshot but a snapshot nonetheless of relevant material. 

The parties also applied deduplication analysis or deduplication tools to reduce that set of documents further. I am sure everyone here is familiar with deduplication in document review. It is what it sounds like. For documents that are duplicates, they are removed from the data sets so you are not reviewing one document twice. There are obviously some unavoidable duplicates that one has to review, often an email will be forwarded from one person to another, it is the same email, there is no additional text but the fact that it has been forwarded to another person might ultimately be relevant. It is difficult to knock out duplicates in that way but for proper duplicates it is possible to eliminate those from the pool of material that you are meant to look at.

SS: The forwarded email situation can commonly be threaded into a long line as well which is very intelligent.

OC: It makes viewing it easier. Another thing that you can do with that duplicate analysis is that the documents that are near duplicates, at that sort of situation where it may be forwarded to one person or it is basically the same text but it appears in a different context, you are able to group all of those documents together and the person who is reviewing the head document can then review all the near duplicates to ensure that the coding of those documents, the redactions, all of that stuff is consistent throughout the review. 

If we go back in time to 2016 to McConnell Dowell v Santam, we started with 4 million documents, we are now down to 1.4 million documents. That is 1.4 million documents has been reached by applying the search terms, applying the date range limiters and applying the deduplication analysis. The parties realised and agreed that reviewing 1.4 million documents again was not going to be proportionate to the dispute. The cost and time associated with doing that simply was not something that was acceptable to the parties. Justice Vickery noted in the judgment that even assuming that the deduplication analysis was applied again a junior solicitor taking one minute to review and catalogue each of the 1.4 million documents - just pausing, that is perhaps an unrealistic assumption to assume that you can review comprehensively a document in one minute because some documents are one page, other documents are hundreds of pages - assuming that one document equals one minute of review time, a junior solicitor would take more than 23,000 hours to review all those documents, that is 583 weeks, which is roughly over 11 years. Which is, I do not think is the fast track partner route to success. 

In that case, the court appointed a special referee to address the questions that arose in relation to discovery, that I think is a relatively novel intervention. That was something that in this case the parties agreed to. It was a cooperative process rather than an adversarial one. Perhaps that can be explained by the fact that there was some acknowledgement from both parties that the costs of not proceeding down this path would be prohibitive and disproportionate. Ultimately, the referee recommended that the parties proceed using predictive coding, which the parties had agreed in any event, and the way that played out was that solicitors from both sides were presented with sets of documents, they were quite senior solicitors on both sides, that they would review. Then the coding that can be derived from that review is then applied across the broader data set. 

The matter went back to court a year later after this process had been taken place. There had been six what are called ‘training rounds’ where solicitors from both sides reviewed the documents and the results are applied across the dataset. Obviously, the more documents one reviews, you would expect that the results are that the computer gets smarter, if I can put it that way, that the results of the algorithm are more accurate and more closely aligned with what your view of what is relevant will be. 

To get down a little bit into the weeds there, there are two metrics that are interesting and relevant and they guide and inform an assessment of how successful this technology assisted review might be. The first is recall. That is a measure of how many relevant documents in a discovery collection have been found. For example, if you had a 40% recall rate, that means that 40% of all the relevant documents in the data set have been found but there are still 60% of documents within the data set that are relevant that have been missed. You can think of that as a complete assessment of how complete is the algorithms review before it is relevant. 

The second measure is precision. That measures the level of non-relevant documents that are captured in a discovery process. You can think of that as the accuracy measure. If you have a precision rate of 65% that means that 65% of the documents that you have retrieved are relevant and 35% of the documents that you have retrieved are the guff, the irrelevant material that you do not need to review. 

Going back to McConnell Dowell v Santam, we started with 4 million documents, we then reduce that dataset to 1.4 million documents. After six rounds of technology assisted review which involves solicitors reviewing sets of documents and applying that coding to prove the data set, the parties were able to reduce the pool of documents to 208,000, which is a lot less than 4 million documents. Certainly, it is still a major task to review 208,000 documents for privilege, for confidentiality, some of those documents might in fact not be relevant but it is obviously markedly narrower and I suppose a more manageable task than reviewing 4 million documents and it is certainly more manageable than reviewing 1.4 million documents. 

TAR has been considered in a number of cases since that McConnell Dowell v Santam case, including in the Federal Court and in the Supreme Court here. There are cases where one party presses to use TAR and the other party resists it. There are cases like McConnell Dowell v Santam where both parties agree that is a great way forward. It seems to be, to me, a likely direction in which at least the large-scale litigation discoveries are going to go. I think there are really significant efficiencies that can be derived from the use of this technology. It also, as solicitors, makes your life easier, I think, in some sense, in that you are able to leverage your knowledge of a case over a small set of documents and then it is exponentially magnified over this broader set of documents. So, the work that you are doing becomes even more important than the law reviewers in that any mistakes you make are manifested over the whole set of documents but at the same time I think it forces you to really engage with what is relevant and what is not relevant. 

I have been involved in a couple of discoveries where we use this technology. I found that it was difficult to use, in some of those cases, because they were schematic heavy cases. They were cases that involved documents that had plans and for whatever reason the system was not particularly good at recognising differences in plans and identifying relevant concepts within those plans. But I think as the technology develops, and it is developing, it certainly I am sure moved on from what it was like when I used it. I think that it will just become more commonly used and become normalised. I expect that this is the way that discovery is going to go as time goes on. 

PRACTICAL ISSUES & QUESTIONS

OC: [Slide 9] We might move on to the next topic then.

SS: Practical issues and questions.

OC: We thought this would be a good opportunity for people to ask questions. We have some questions that commonly arise that we encountered both as solicitors and now as barristers. But to the extent that people have burning questions about discovery and disclosure, I am sure everyone does, now is an appropriate time to ask those questions, so long as they do not relate to specific documents. 

DOCUMENTS GENERALLY COVERED BY DISCLOSURE

OC: I might ask you a question first Sarah, what sorts of documents are generally covered by disclosure?

SS: Well, the definition of document in the Queensland rules and the Federal Court is really extraordinarily broad. It includes things like any material or data or information, anything on which there is writing or figures or symbols, or materials from which sounds or images can be produced either with or without assistance of another device. It is really broad. What you need to be telling your client and being aware of is that really it is just anything except for things in your clients and witnesses heads. That would include things like text messages, WhatsApp messages, even though they are encrypted, you still have to produce them on discovery.

OC: What about WeChat?

SS: WeChat, same thing. Same thing for photographs, voicemail messages stored on a phone, all that sort of thing. As long as it is directly relevant it is the sort of thing that needs to be disclosed. 

OC: I should explain, before we go ahead, that the reason I brought up WeChat is that I a matter recently where message on WeChat were disclosed and much of the correspondence between the parties was on WeChat.

SS: Cool.

OC: That was my first exposure to it.

COUNSEL & SOLICITOR ROLES IN DISCOVERY

SS: Ollie, what is the role of counsel and solicitors in a discovery exercise?

OC: Well, counsel simply never engages in discovery so generally we do not have to worry about it [laughs]. Generally, the matters I have been involved in are usually relatively large matters so you see a tiered approach. There is the first level of review, or FLR. Those are the people who are frontline. Then there is the second level of view, they are the verification stage. Then you for, I suppose, the stage at which counsel engages in the review processes when there are particularly tricky documents. So, documents where you might not be sure about the privilege call, documents where you might not be sure about the confidentiality call that has been made, or if it is a particularly sensitive document interrogating whether or not it is actually relevant. That is something that I have been involved in. 

Generally, I would say counsel gets involved where client instructions are required on specific documents or if there is a particular category of documents. For instance, correspondence with a politician or something like that where there might be some specific questions about privilege, whether or not you are obliged to disclose it, what use the document can be put to if it is disclosed, those more specific questions that are on a document-by-document basis. I think the other role that counsel has in, at least in the Federal Court, I have been involved in this, is in crafting those categories for discovery. So, when you have specific discovery, coming up with the categories, identifying what it is that is actually relevant. 

I don't know if you [Sarah] have had a different experience since coming to the Bar and being involved in discovery processes.

SS: That is about right. I think it is a really helpful thing if you are a solicitor involved in an eDiscovery exercise, as Ollie was discussing earlier, because you see a greater range of the documents at that early stage, you get a better sense of what is out there and what could be problematic and what could support your case. You might be asked by counsel to provide a bit of a summary of what you have seen and what it is looking like and what things we should be thinking about. That happened to me in one of my cases recently. A whole lot of documents have been provided and I have not seen them at all but we have asked the solicitors to provide a summary of everything that they have seen and what are looking like our difficult points that we will have to manage. It is great that the solicitor was able to have a general oversight of all the documents before it gets to the counsel teams, very early on I should say, in the litigation. Eventually, the counsel team also have to be very across the documents but in the discovering exercise usually the solicitors have control and make a lot of really important decisions before it gets to us.

OC: Another thing that I have seen solicitors do really well is identify the gaps where you expect to see information but there is not information, or that you would expect to see documents but there are not documents. That is something that I think is really valuable and you are only able to do that effectively when you know what has been disclosed, once you have been through the material. That can often be a really important part of the case, if there is no documentation or any particular decision that is said to have been taken, for instance, that can become critical. That is something that, as I said, you need to know what is coming in order to know what is not there or what seems to be missing. 

CRAFTING DISCOVERY CATEGORIES

OC: Sarah, could you tell us about a recent discovery experience you have had? 

SS: I can. I was going to talk briefly about this idea of bringing discovery categories because I recently had a discovery application in the Federal Court where the parties tried their best to agree some discovery categories but there were a few that were not agreed. We ended up having to go to court to ask the court to give discovery. It was an interesting experience for me because it taught me the importance of thinking about crafting categories in a way that focuses on the core issues in a dispute because when we got to the discovery application all the court wanted to know about was how to narrow the categories further. The court looks at things like the date ranges, is that cheaper or to ask for all documents across all time on this issue? What about you just focus on that month, is that not too narrow or is it too broad? Should we just have correspondence between the parties on this issue or is it all documents on this issue? That became very important in my particular application, convincing the court that one, the categories were directly relevant but two, that they were as narrow as they needed to be to avoid being overly burdensome or oppressive, particularly in the Federal Court where you need an order from the Court for discovery. 

The Court is particularly concerned to avoid waste of cost and time associated with discovery. We all know it is one of the most expensive stages in litigation and the Federal Court is really keen to keep a very tight leash on that. I think what worked really well in our discovery application was that the solicitors who had initially crafted the categories paid a lot of attention to the pleadings when they were crafting those categories and really focused on coming up with a justification for what was directly relevant right from the beginning. They had a great table set out. This is the category, this is why we say it is directly relevant, this is the paragraph of the pleading. That made it really easy to do the submissions, to make oral submissions. It all went really smoothly because the whole time that we were thinking about this process, direct relevance was at the forefront of everyone's mind. 

ISSUES CONCERNING PRIVILEGE

SS: Ollie, are there any common questions that have come up for you concerning discovery or disclosure?

OC: I am glad you asked. 

SS: It is almost as if we planned this [laughs]. 

OC: Yes, there are questions that come up in every case. I am sure many of you who have confronted them or been involved in cases where these issues have come up.

Corresponding with your experts, draft expert reports, that seems to always be an issue when people are concerned to not create extra material that might ultimately be discoverable. I think there has previously been a CPD in this session on engaging with experts. I might be wrong about that but it is its own area and I don't want to get into it in too much detail. That is something that commonly arises. 

Privilege is another issue that seems to come up in pretty much every case. Sometimes people have a practice of putting a privilege banner on their correspondence despite not having any discernible basis to do so. That happens all the time. The other issue that commonly arises for privilege is when you are reviewing a document and it reads like legal advice but you don't know if the person has a practising certificate or not or if they are indeed a lawyer. That happens in big corporates. That is the sort of issue that you can resolve pretty early on when you are collecting all of the material. At the same time, you might ask the client for a list of all the people who were practicing as lawyers or who had a practicing certificate because then you will know that when you are reviewing an email from that person you are applying a different mindset when you are approaching material considering whether or not it might be privileged. That is something that seems to come up all the time. 

I don't know if there are any common questions that seem to have arisen in your practices. We are more than happy to have a chat about them now. I think that might be a good opportunity to throw out to questions. I am getting the nod from Tamara that there are no questions online, as yet. I am sure people are typing away furiously because there is a lot to talk about. Does anyone in the in person audience have any particular questions?

RELEVANCE & DOCUMENT MANAGEMENT PROTOCOLS

Audience: I have one, not so much a question, more a comment and I am not quite sure about it. When you have a chain of emails, so many emails are irrelevant and a lot of them are just garbage. Then I have to attach all the emails because the court will see if they are looking at it or someone will see that there was something that was being referred to previously but it is just garbage, but the chain of emails forms one piece of correspondence. If you redact that, does it look a bit fishy? Is it better to be on the safe side and have the garbage? Something that I often ponder.

SS: I think the general rule is that you disclose the whole document. If it is a chain then the general rule is that you do not redact the irrelevant stuff, you do not make redactions for relevance. That can lead to a lot of big documents that do not need to be there but that is the general approach that you take to disclosure or discovery. It is a judgment call, depending on that particular matter. Sometimes you need to disclose the whole chain to understand the timing of the conversation. If the first email is relevant and the last one is, is it irrelevant that there has been all this other discussion between the parties? Possibly. It all really depends on the case.

OC: In some cases, I think in most cases now, you usually have an electronic document exchange protocol or document exchange protocol, however it might be called. That is the document that generally will say you either redact irrelevant material in relevant documents and you just disclose a redacted version, or that there has to be no redactions for relevance and only redactions for privilege. There is a lot of granularity, it is a technical document. 

To take your example, if there is an email that has some irrelevant stuff at the bottom of the chain but it is relevant at the top level, then you would, generally, you might disclose the whole document. But say there are some irrelevant attachments, for example, to the email, you might have a document exchange protocol that says you only need to disclose the relevant post and relevant attachments. Other document protocols might say you have to disclose the entire family if there is a relevant host. Another example might be if there is a relevant attachment but then the rest of the chain is totally irrelevant. The exchange protocol might say you just need to disclose the attachment and the host, you do not need to disclose all the other irrelevant guff. There is a real art to crafting those documents. There is a precedent on the Federal Court website, in one of those practice directions there is a template document exchange protocol.

SS: I think it encourages parties to come up with the document management plan or protocol that deals with that sort of thing.

OC: Another thing that arises in the Supreme Court is whether or not you are going to be disclosing native files or if you are going to print everything out, scan it and give it to people in PDF format. There are obviously advantages to having a native file because there is additional data that you cannot get from the content from the scanned document. That is just something to consider as an issue that might arise.

SS: There are so many things around disclosure and discovery that you can really tailor for a particular matter. That is what the document plan idea really supports. You can really think, how would this matter run most efficiently? At the outset, if you can be quite strategic, you can provide a protocol for commercially sensitive information to be provided just to solicitors and not to clients. You can do a whole range of things, you can be quite creative in them. As long as the other side agrees, then you can really advance your client's interests right at the outset by agreeing a discovery plan.

OC: Does anybody else have any other questions? They do not even have to be burning questions?

DISCLOSING COMPLEX DRAWINGS, MODELS & SPREADSHEETS

Audience: You mentioned plans before, for example architectural drawings or structural diagrams, to disclose from a client and it is in those drawing... 

OC: Like a CAD drawing?

Audience: Yeah. As a solicitor, how are you meant to review that before you put it into the document?

OC: With extreme detail and diligence

Audience: Because it's just a bunch of lines.

OC:  I totally understand. It is difficult. It is a type of document that we are not familiar with as lawyers necessarily. One thing, this is just a tiny thing, it will probably demonstrate my ignorance about plans and schematics and that sort of stuff. Generally, on a proper plan or schematic, there will be a little key at the bottom, on the right hand side or the left hand side, which sets out the date the drawing was produced, who produced the document and the iteration of that schematic. Sometimes that will be a guide as to whether or not it is going to be relevant for your purposes. Sometimes you need to get specific instructions on particular documents. So, the client gives you 15 CAD files, you can just ask them “What are all these documents? Why are you giving them to me?” Maybe that is blunt to the client but sometimes specific documents do require specific instructions from the client.

Audience: Jumping off from that. In addition to drawings and things, I also was wondering about when you have models. I feel like models are living documents where they are constantly input with new data, it changed, then they take a model from that time and they use it for the purpose but then they can keep changing the model and you do not get to see the different versions.

OC:  That is a really good example of a document that you absolutely need to have produced to you in its native form because if someone tries to render a really sophisticated Excel model into a PDF form you cannot play around with it and do other things with it. 

I have been involved in a case where the model about a particular mine plan was an issue, whether or not a particular mine plan was the most economically or the most remunerative way of dealing with getting stuff out of the ground. The model became a source of real contention between the parties because you are able to input certain values into the model and get a totally outrageous result. There was a fight about which version of the model was used at what time. That is the sort of case where, obviously, everything is disclosed electronically. Helpful in that case, there were emails that said “Here's the model for this scenario. Here's the model for that scenario.” It is an example of what Sarah mentioned earlier about being strategic from the outset. If you agree to get that stuff electronically then you can do things with the documents to tell a different story or to tell a story that is more aligned with your case theory or version of events. Requiring that that stuff is produced to you electronically is the first step in doing that. It requires some strategic thinking at the outset in order to be able to know that that is something that is going to be important.

SS: That has come up in one of my matters. We wanted a map of this particular site. We could have asked for all documents showing where things were on this particular site. In the end, we did not want to have 1000s and 1000s of documents showing where different pieces of equipment are on this site. What we really wanted was “How did this site look at various times?” We agreed with the other side just to provide that document. We knew that they would have IT systems that would track their equipment on their site at various times. We just said to them, “You can produce 1000s and 1000s of documents showing us this, or you can put together a map that we agree is the map of the site.” That was a really effective way of dealing with that sort of thing.

OC: Any questions? None online either? All right, thanks everyone for coming this evening. Really appreciate people coming in person. For all those who attended online, he says very much staring directly into the camera, thanks very much.

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