ALRC President Professor Rosalind Croucher stated
A particular feature of contemporary litigation is the massive exponential growth and storage of documents in the electronic age. Discovery can be an important process in litigation to avoid ‘trial by ambush’, but the vast amount of electronically-stored information which litigants might be required to disclose can lead to ‘trial by avalanche’. The impact of information and communication technologies can also exacerbate the inherent tension between the party requesting discovery—seeking to ascertain facts material to the case; and the party giving discovery—bearing the burden of retrieving, reviewing and disclosing documents in response to discovery requests. The task in this Inquiry is to develop proposals and ultimately, recommendations for reform that balances these tensions fairly and practically.The 2009 Commonwealth Attorney-General’s Access to Justice Taskforce report indicated that an awareness that high and disproportionate discovery costs may impose a barrier to justice in litigation.
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.The ALRC’s Terms of Reference for the Inquiry encompass broad examination of procedures alternative to traditional discovery, which may facilitate information exchange and fact-finding, including the introduction of pre-action protocols and pre-trial oral examinations, encouraging disclosure of information and documents, narrowing the facts in issue and settlement of disputes.
The consultation paper highlights matters on which the Commission seeks feedback. The ALRC for example proposes reforms "aimed at clarifying the core issues in dispute between the parties, and focusing the scope and conduct of discovery on those issues that really matter", thereby ensuring that the cost and time required for discovery is proportionate to the matters in dispute.
Professor Croucher commented that "The role of judges as case managers is crucial in this regard, and many of the ALRC’s proposed reforms seek to remove obstacles and make changes to enable judicial control over the discovery process". She went on to indicate that -
While these alternative procedures may offer a measure of efficiency and streamlining of the litigation process, the implications for front-loading of costs must also be taken into account. Therefore any reforms proposed in these areas of civil practice and procedure must be flexible to accommodate the size, complexity and nature of the dispute.The closing date for submissions is 19 January 2011.
