Other alternatives

Interim disclosure orders

5.119 The VLRC Report recommended another alternative to traditional discovery, which it called ‘interim disclosure orders’.^[187] Under the proposal, in order to reduce the delays and costs arising from discovery, a court would have the discretion to order a party to provide another party with access to all documents in the first party’s possession, custody or control that fall within a general category or general description of issues in dispute in the proceedings, subject to:

• the documents falling within a category of documents where such a category or description is approved by the courts;

• the documents are able to be identified and located without unreasonable burden or unreasonable cost to the first party;

• the cost of the first party differentiating documents within such a general category or description which are (i) relevant or (ii) irrelevant to the issues in dispute between the parties are in the opinion of the court excessive or disproportionate;

• access to irrelevant documents is not likely to give rise to any substantial prejudice to the first party which is not able to be prevented by way of court order or agreement between the parties; and

• access is to facilitate the identification of documents for the purpose of obtaining discovery of such identified documents in the proceedings.^[188]

5.120 Access does not allow the other party to copy, produce or make records of, photograph or otherwise use—either in connection with the proceedings or in any other way—documents or information examined as a result of such inspection, except to the extent that would allow the other party to describe or identify an examined document for the purposes of obtaining discovery of such an identified document in the proceedings.^[189]

5.121 Other safeguards include that, access would be limited to lawyers for a party, and any disclosure to this provision does not give rise to a waiver of privilege.^[190]

5.122 The VLRC considered that such interim access would: facilitate access to documents quickly; avoid the party in possession spending time reviewing such documents prior to the determination of what documents should be produced by way of discovery and the necessity of preparing a list of documents; and transfer the cost of initially reviewing the documents to the party seeking the documents.^[191]

Civil jurisdictions

5.123 The ALRC also notes that there is some suggestion that reforms should also consider civil law jurisdictions, such as that in Germany, as one possible alternative to discovery in federal courts.^[192] However, the ALRC considers that a review of the civil law system, and how it deals with discovery, is beyond its Terms of Reference.^[193]

Current courts processes

5.124 The VLRC’s recommendation bears similarities to the Practice Note SC Eq 3, which applies in the Commercial List and Technology and Construction List in the NSW Supreme Court’s Equity Division.^[194] Under the practice direction, parties may ‘take a peek’ at their opponents database of documents on a without prejudice basis.^[195] The parties may then call for the production of particular non-privileged documents they wish to obtain, and the court may grant discovery.^[196]

5.125 The ALRC notes that creative judicial case management can initiate the use of alternatives to discovery. For example, the ALRC heard in consultations that instead of granting leave for discovery of documents relating to the corporate structure of an organisation, judicial officers can ask the party to tender an affidavit outlining the structure of the organisation. Further examples include that, under the Federal Court Rules, the court has the power to order the production of documents for inspection where it appears on a list of documents filed by a party or where a document is referred to in the pleadings.^[197] Under the Evidence Act 1995 (Cth), where the parties make agreement as to facts in writing,^[198] then discovery in relation to those issues is not required.

5.126 Such powers, when used in conjunction with other case management processes discussed in Chapter 3—such as pre-trial conferences, requiring the parties to tender a list of issues in dispute, or a ‘discovery plan’ setting out where and how a search for documents relating to those issues is to be conducted—may achieve the same aims of facilitating quick access to documents, and identifying which documents are to be discovered.

5.127 The ALRC is interested in stakeholder views about whether there is a need for a new procedure for access to information in civil proceedings, such as interim disclosure orders. If the current alternatives are adequate, the ALRC is interested in view about the best way of ensuring that the federal court considers such alternatives.