Seamus E. Byrne's - In Pursuit of Relevance

Guidance Software publishes a quarterly electronic newsletter, Real eDiscovery.
This insight appears in the Fall 2009 issue.

Please Note: The Federal Court of Australia's Practice Note 17 was recently re-issued.

Experts Geoffrey Lambert and Seamus E. Byrne provide insights regarding the Australian eDiscovery landscape. They are co-authors of the 'E-Litigation' chapter in the Federal Civil Litigation Precedents published by LexisNexis Australia.

Q: Looking at the recent Practice Note changes, how do they compare with other countries (generally)?

Lambert: Recent changes to the Australian eDiscovery landscape, by way of Practice Note amendments in both Federal and select State Supreme Courts, reflect favorably on Australian courts increasing need to efficiently manage document-intensive litigation.

Most notably, the Federal Court's revised Practice Note 17 has received significant attention by, in part, loosely adopting concepts introduced in the 2006 amendments to the U.S. Federal Rules of Civil Procedure, including the "meet and confer" requirement, taking form as the "Pre-Discovery Conference."

As a modern English common law jurisdiction, discovery in Australia is approached by balancing the principles of proportionality and reasonableness.

Q: What do you see as the biggest change the Practice Notes will bring to the Australian judiciary, and do you see them influencing other countries?

Byrne: The Federal Court's revised Practice Note 17 requires, as a general principle, that parties will electronically exchange electronic documents, where there are over 200 discoverable documents. Consequently, the Practice Notes bring both evolutionary and revolutionary changes to the Australian judiciary, and the wider legal profession.

The Practice Notes codify what has been the "standard practice" in many top-tier Australian law firms, and provides a compelling argument for small and mid-tier law firms to more fully understand and strategically use technology to efficiently manage their clients’ discovery.

Whilst Australia maintains a unique eDiscovery jurisdictional "identity" it also influences other common law jurisdictions, with Australian eDiscovery procedure and case law readily cited in Singapore and Hong Kong, as well as England and Canada.