Federal Court unveils new electronic era
Federal Court unveils new electronic era
February 11, 2009: After more than two years of debate and deliberation, the Federal Court regime for eDiscovery in Australia has been finalised.
Practice Note 17 has been released on the Federal Court Web site
The Practice Note provides a platform for the use of technology in the management of discovery and the conduct of litigation.
The document sets out a checklist for both parties in a federal court case to undertake before the process of discovery, and provides a basic document management protocol for matters that involve as few as 200 documents.
Designed to be easy to use and requiring no specialist litigation support software, this simple protocol applies to cases that involve from 200 to 5000 documents. An Advanced Document Management protocol will apply for large cases that require more sophisticated classification of documents.
One of the principles underlying the new Practice Note is the growth of email and electronic documents that need to be effectively managed to reduce costs. It emphasises that both parties in a proceeding should plan for discovery as early as possible, and any paper documents should be converted to searchable images (preferably PDF or TIFF).
A survey by the American College of Trial Lawyers found that discovery costs as a share of total litigation costs "have increased disproportionately due to the advent of electronic discovery."
Allison Stanfield, CEO of e.Law Australia, a company specialising in electronic discovery and e-trials, says that discovery is now more voluminous due to the fact that corporate information is now primarily created in electronic format, is easily duplicated, persistent and disorganized.
“When you consider that the average laptop computer today can hold the equivalent of a small library, it is evident that discovery involving electronic files is going to consist of many more documents than a traditional hard copy discovery. However, technology can be used to assist lawyers to find what is relevant much more efficiently compared with hard copy.
"Keyword searching and even concept searching will become standard tasks for an electronic discovery and this is where we will see the method of reviewing documents for discovery change between the hard copy and electronic paradigms. Legal review costs associated with discovery should start to go down as technology is used to its best advantage,” said Stanfield
The federal Court discourages the printing of electronic documents as a costly waste of time, it requires that requires that electronic documents are exchanged as searchable images or in their native format.
The pre-discovery checklist aims to have both parties agree on a timetable and estimated costs for discovery, including strategies for conducting a “reasonable search.”
The US-based Enterprise Strategy Group (ESG) ESG has studied the value of e-discovery technologies and found that email and document archiving is essential to reduce costs.
Senior analyst Brian Babineau said "The savings is measured in the corporate counsel time spent trying to gather relevant data as well as the avoidance of paying external counsel and consultants to perform e-mail and file collection.”