New case management powers in Victoria for discovery and disclosure provide an even stronger case for government agencies to ensure compliance with the standards issued by Public Record Office Victoria.
“The one great principle of the English law is, to make business for itself. There is no other principle distinctly, certainly, and consistently maintained through all its narrow turnings. Viewed by this light it becomes a coherent scheme, and not the monstrous maze the laity are apt to think it. Let them but once clearly perceive that its grand principle is to make business for itself at their expense, and surely they will cease to grumble.”
―Charles Dickens, Bleak House
In August this year, the Justice Legislation Amendment (Discovery, Disclosure and Other Matters) Act 2014 came into effect. The Victorian legislation is the capstone in a longstanding push by members of the legal community to reduce costs and delays associated with discovery and disclosure of documents required in court proceedings. It comes in the wake of modern-day Dickensian litigation such as Seven Network Limited v News Limited, where the estimated cost of discovery ($200 million respectively) has been grossly disproportionate to the amount of relief sought (in that case, a damages estimate of between $195–$212 million).
The amendments introduce a range of additional mechanisms targeted towards better case management. Most relevantly, it arms the courts with more sophisticated legal tools under the Civil Procedure Act 2010 in a bid to:
- minimise the production of voluminous documents (and in doing so reduce the burden associated with sifting through them for evidence);
- aid in the discovery of relevant documents.
As a result, the provisions will likely open up records management practices and systems of businesses and government to greater scrutiny during pre-trial processes.
Scope of discovery
First, courts can order a statement of issues which identifies and summarises the key issues in dispute in a proceeding. If the parties cannot agree on the contents of the statement, it may be determined by the court. Second, a court can limit discovery to a class or classes of documents specified in the order; or to documents relating to one or more specified facts or issues in dispute. Courts are also empowered to order that a party pay the costs of discovery of another party, creating an incentive for parties to avoid extraneous requests for documents.
Discoverability of documents
Under new section 55A where there is the agreement between the parties, courts can order that all relevant documents to a matter in the possession of one or more parties are handed over. Parties can still opt to exclude documents protected by privilege from discovery. A court can only make the order where it is comfortable that:
- the documents can be identified and located by the person providing the documents without incurring unreasonable costs in the process;
- the documents are able to be identified by a general description or category; and
- the party providing the documents will not be substantially prejudiced in giving the other party access to the documents.
What’s apparent is that the key benefits arising from use of these powers are prefaced on evidentiary documents being managed under an effective records or document management system. That is, under a 55A order the providing party will not be required to review each of its documents for relevance prior to production, saving it time and money. But by the same token, a robust records management system must be in place to enable cost-effective retrieval. This assumption is reinforced by additional powers which enable courts to direct that documents are provided in a searchable electronic format, or any other format that the court requires.
Affidavit of document management
The amendments also introduce section 55B powers by which courts can require parties to a proceeding produce an ‘affidavit of document management.’ This affidavit can include the volume, manner of arrangement or storage, type or location of discoverable documents. It can also pertain to a party’s ‘processes of document management.’ In addition, the court can order that the deponent (person giving evidence in the affidavit) or an appropriate person (for example a records or information manager) be orally examined about the affidavit of documents management. Notably, the court can order that any party has to pay for the costs of an oral examination. Parties therefore have an incentive to prepare full, accurate and reliable affidavits of document management.
So what to expect? It is hoped is that discovery requests will become more targeted as the scope of discoverable documents will be commensurate with the matters at issue. At the same time, arguments that documents have not been sufficiently described in a request for discovery so as to identify them; or that the documents are ‘hidden’ in an organisation’s document management system, are less likely to hold water. Orders for the release of all relevant documents, coupled with orders to reveal the organisation’s document/records management system create expectations of fewer barriers to accessing and retrieving records.
Against this new set of expectations, government agencies can better weather pre-trial discovery processes through ensuring compliance with the standards and specifications issued by Public Record Office Victoria. In particular:
- Having a standards-compliant records management framework already in place will reduce cost and effort associated with complying with section 55A or 55B orders.
- Standards cover the complete spectrum of records management activities and facilitate access to hardcopy and electronic records. Records management policies and strategies developed under the standards can be readily reproduced in an affidavit context, avoiding the need to capture and describe these retrospectively.
- Finally, an agency can demonstrate compliance with the standards to show that records have been managed and disposed of in a legally responsible way.
Public Record Office Victoria welcomes the introduction of the amendments and emphasises the role that good records management in increasing access to justice in our Courts and reducing costs associated with discovery.