eDiscovery and TAR – Reforming Discovery in Western Australia

Western Australia is one of the few jurisdictions in the country that does not have any rules or guidelines regarding the use of electronic discovery or Technology Assisted Review (TAR) in litigation before the courts.

 

Discovery, improperly managed, can be a costly exercise. This is particularly so in circumstances where the courts provide little guidance on innovative ways to manage discovery and reduce the burden on the parties.

At Lavan, we take a proactive approach to discovery, utilising the best processes, technologies and protocols from other Australian jurisdictions that are setting the standards for conducting complex discoveries. Some examples of the approaches in other jurisdictions are summarised below.

South Australia

In 2020, South Australia introduced a set of Uniform Civil Rules to standardise civil procedure in each of its major courts (Supreme, District and Magistrates). One area of significant reform was in relation to the discovery process. These new rules provide standardised protocols for the exchange of documents in an electronic format for both simple and complex discoveries.

The Simple Electronic Protocolis used in circumstances when it is desirable for each party to have an electronic database identifying each discovered document but where the use of the complex electronic protocol is not needed or justified. A Complex Electronic Protocolis applicable where there will be a relatively large number of disclosed documents, or it is anticipated that there will be an electronic trial.

In complex discoveries, the protocol prescribes how documents should be indexed, numbered, de-duplicated, formatted, how the files should be structured and the quality of the documents.

Federal Court of Australia

Since as early as 2009, the Federal Court of Australia has offered a practice note mandating the discovery of documents electronically.

Today, the Court’s Technology and the Court Practice Note (GPN-TECH), together with Central Practice Note (CPN-1), deal with the use of technology in discovery and provide comprehensive guidelines for electronic discovery.

As in South Australia, the Federal Court sets out two protocols: one for standard and one for advanced discoveries, intended to outline the agreement between the parties in relation to the scope, means and format in which electronic documents are to be exchanged and delivered to the Court. The Federal Court’s Advanced Document Management Protocol3 is as close to an industry standard protocol as any court protocol has become.

The Federal Court also recognises the use of TAR in electronic discovery. TAR uses predictive coding to review and identify discoverable documents. Although Australian and international law firms have used TAR for many years, it was not endorsed in any Australian court until 2 December 2016 when the Victorian Supreme Court delivered its decision in McConnell Dowell v Santam4.

Although reference is not made in his final judgment, on 7 November 2016, Murphy J of the Full Federal Court made ordersthat the applicant provide a report “describing with particularity the manner in which the respondent has applied technology assisted review (TAR) for the purposes of giving discovery”. Murphy J specified that the report must include the following information:

  1. the nature and technical parameters of the TAR algorithm used;
  2. the process for selecting and coding the training set of documents;
  3. the process for selecting and coding the validation set of documents;
  4. the process for training the algorithm to identify relevant documents for production, including the level of relevance applied;
  5. the process for validation and testing, including disclosure of analyses relating to the accuracy, validation or quality of documents produced;
  6. the number of documents in the complete data set identified as relevant and irrelevant following the application of TAR and, with respect to the relevant documents, the number of documents withheld on the basis of privilege;
  7. the search terms applied in conjunction with TAR; and
  8. the process followed with respect to potentially privileged documents.

TAR, and the parameters set out above, have since been deployed in a small number of Federal Court proceedings6 and in the Supreme Courts of Victoria7 and Queensland.

Lavan's comment 

The use of electronic discovery and also TAR to capture relevant documents reduces the manual work required in the course of discovery and reduces the costs associated with discovery in larger litigation matters. 

Western Australian courts have yet to publish any rules or guidelines regarding the use of electronic discovery or TAR. This can be troublesome for litigants who are burdened with having to undertake the task of discovery. However, other jurisdictions provide guidelines and protocols which can be effectively used within this jurisdiction.

We have significant experience assisting our clients to undertake both simple and advanced or complex electronic discoveries using TAR to assist our clients to efficiently and economically acquit their discovery obligations.

If you would like to discuss the status of your current dispute or any of the innovative options for discovery, please contact Iain Freeman, Cinzia Donald or Millie Richmond-Scott.
AUTHOR
Iain Freeman
Partner
AUTHOR
Cinzia Donald
Partner
AUTHOR
Millie Richmond-Scott
Special Counsel
AUTHOR
James Barrett
Associate
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Corporate Disputes & Investigations
Litigation & Dispute Resolution


FOOTNOTES

[1] Uniform Civil Rules 2020 (SA) Schedule 4 Part 2 and Forms 73B and 74B.

[2] Uniform Civil Rules 2020 (SA) Schedule 4 Part 3 and Forms 73C and 74C.

[3] Practice Note CM 6: Example of an Advanced Document Management Protocol.

[4] McConnell Dowell Constructors (Aust) Pty Ltd v Santam Ltd & Ors (No 1) [2016] VSC 734.

[5] Order of Murphy J in Money Max Int Pty Limited, as trustee for the Goldie Superannuation Fund v QBE Insurance Group Limited (Federal Court of Australia, VID513/2015, 7 November 2016).

[6] Petersen Superannuation Fund Pty Ltd v Bank of Queensland Limited (No 2) [2017] FCA 1231.

[7] Vickery J in Victoria, published Standard Operating Procedure No 5 on 1 September 2016 with respect to the use of TAR in the Technology, Engineering and Construction List of the Supreme Court. It has now been incorporated in the Supreme Court Practice Note SC Gen 5, paragraphs 8.7 to 9.9; McConnell Dowell Constructors (Aust) Pty Ltd v Santam Ltd (No 2) [2017] VSC 640.