Avoiding Trial by Avalanche: Australian Law Reform Commission Consultation Paper on Discovery

The Australian Law Reform Commission has released a Consultation Paper for the Inquiry into Discovery of Documents in Federal Courts.

From the press release:

"The 2009 Access to Justice Taskforce report—established by the Commonwealth Attorney-General’s Department, which recommended that the ALRC conduct this Inquiry—noted that the high and disproportionate cost of discovery can impose a barrier to justice in court based dispute resolution. 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."

"ALRC President Professor Rosalind Croucher said '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."