International Law

The use of technology in the management of discovery and the conduct of litigation

The Federal Court of Australia has announced the much-anticipated revised Practice Note No.17 regarding the use of technology in the management of discovery of electronic records and the conduct of litigation ("e-discovery").

The Practice Note applies to any proceeding in which the Court has ordered that:
(a) discovery be given of documents in an electronic format; or
(b) a hearing be conducted using documents in an electronic format.

The new Rule means that businesses will need to have procedures to preserve emails and other electronic messages. Businesses will need to have technology in place to ensure that discovery orders can be complied with.

Wherever possible, the Rule requires parties to exchange documents in a usable, searchable format or in the format in which the documents are ordinarily maintained. The exchange format should allow the party receiving the documents the same ability to access, search, review and display the documents as the party producing the documents.

The Practice Note contains Document Management Protocols: 

• the Default Document Management Protocol is to be used in all proceedings in which the number of Discoverable Documents is reasonably anticipated to be between 200 and 5,000, unless an alternative Document Management Protocol is agreed by the parties and accepted by the Court.
• Where the number of Discoverable Documents is reasonably anticipated to exceed 5,000 Documents, the parties should agree to an Advanced Document Management Protocol.

Full post as published by Australian Regulatory Compliance Review on February 03, 2009 (boomark / email).