Seamus E. Byrne's - In Pursuit of Relevance

Preliminary

A widely debated issue for those involved in the Federal Court's recent consultative drafting process for a replacement to Practice Note 17 (20 April 2000) was whether the concept of 'making a reasonable search' should be specifically revised to deal with electronically stored information (ESI).

Discovery

Discovery is generally conducted, and granted, on notice per Order 15, rule 2(3):

(3) Without limiting rule 3 or 7, the documents required to be disclosed are any of the following documents of which the party giving discovery is, after a reasonable search, aware at the time discovery is given:

(a) documents on which the party relies; and
(b) documents that adversely affect the party's own case; and
(c) documents that adversely affect another party's case; and
(d) documents that support another party's case.

Interpretation - Document

It is widely accepted that the definition of a 'document' includes ESI, i.e. electronic documents and e-mail, whether in part or whole. This proposition was most notably supported by Justice Tamberlin in Sony Music Entertainment (Australia) Ltd v University of Tasmania [2003] FCA 532, 48:

"Electronic records, such as computer files and CD-ROMs have been the subject of discovery orders in this Court".

It is also accepted that metadata expressly falls within this definition (again per Justice Tamberlin in Jarra Creek Central Packing Shed Pty Ltd v Amcor Limited [2006] FCA 1802, 16):

"It is clear that embedded electronic information in relation to relevant documents, including the information embodied in electronic metadata, is discoverable".

'Making a Reasonable Search' - Theory

Order 15, rule 2(5) provides the matter-specific variables a party may consider in 'making a reasonable search':

(5) For subrule (3), in making a reasonable search, a party may take into account:

(a) the nature and complexity of the proceedings; and
(b) the number of documents involved; and
(c) the ease and cost of retrieving a document; and
(d) the significance of any document likely to be found; and
(e) any other relevant matter.

Order 15, rule 2(6) provides that a party must document the limitations of their search(es) in their 'List of Documents' (Form 22).

(6) If the party does not search for a category or class of document, the party must include in the list of documents a statement of the category or class of document not searched for and the reason why.

The obligation to verify the accuracy of the List of Documents, including statements as to any search limitations, extends to the party's solicitor per Order 15, rule 6(8):

(8) Where a party making a list of documents has a solicitor in the proceeding, the solicitor shall certify on the list that, according to his instructions, the list and the statements in the list are correct.

Sidenote: The current Practice Note 17 encourages parties, by agreement, to draft (e.g. using a spreadsheet or database with the appropriate fields) and electronically exchange their List of Documents in place of using the traditional numbered Schedules 1 and 2 of Form 22.

Consideration should also be given to Practice Note 14 (12 February 1999):

2. In determining whether to order discovery, the Court will have regard to the issues in the case and the order in which they are likely to be resolved, the resources and circumstances of the parties, the likely cost of the discovery and its likely benefit.

'Making a Reasonable Search' - In Practice

How may you, as a practitioner, adduce evidence to support (or to argue against) the reasonableness of searches conducted for electronic documents and e-mail in your matter?

BT Australasia Pty Ltd v State of New South Wales & Anor [1998] FCA 363

Sackville J

NT Power Generation Pty Ltd v Power and Water Authority [1999] FCA 1669

Mansfield J

Slick v Westpac Banking Corporation (ACN 007 457 141)(No 2) [2006] FCA 1712

Jacobson J

Cosdean Investments Pty Ltd v Football Federation Australia Limited (No 2) [2006] FCA 1775

Mansfield J

Galati v Potato Marketing Corporation of Western Australia (No 2) [2007] FCA 919

Siopis J

See also:

Leighton Contractors Pty Ltd v Public Transport Authority of Western Australia [2007] WASC 65

Le Miere J

[...]

Fast Track List

Practitioners with matters in the Victorian District Registry of the Federal Court may be allocated to the 'Fast Track List' pilot. The Fast Track List Directions limit the scope of discovery and redraft the provisions of Order 15, rule (2)5 to introduce the:

1. Concept of a "good-faith proportionate search"; and
2. Obligation for a party to be able to describe, on demand, the methodology of their "good-faith proportionate search".

7.2 Reasonable Search Effort –

(a) Parties are required to provide discovery of any document within the Limited Discovery categories that a party knows of at the time of the Scheduling Conference, or that the party becomes aware of at a later point in the pre-trial or trial process, or that the party discovers in the course of a good-faith, proportional search of its documents and records.
(b) A “good-faith proportionate search” is a search undertaken by a party in which the party makes a good-faith effort to locate discoverable documents, while bearing in mind that the cost of the search should not be excessive having regard to the nature and complexity of issues raised by the case, including the type of relief sought and the quantum of the claim.
(c) If requested by any party, a party must describe briefly the kind of good faith proportionate search it has undertaken to locate discoverable documents.

[...]

Closing Remark

The adversarial process champions those able to deliver evidence to successfully support a proposition. However, the increased presence of ESI to facilitate commercial correspondence and transactions adds complexity to the role and duties of a practitioner and their client.

Practitioners who enjoy 'winning' must thoroughly understand, and be able to clearly express to the Court, how searches they conduct are reasonable against the constraints of the matter and their client's 'technology infrastructure'.