Discovery is an important interlocutory procedure and arguably, one of the most important stages of litigation.1
As courts and practitioners alike increasingly turn to technological solutions to minimise the cost and burden of the discovery process, practitioners are reminded of their obligation to manage the delivery of both paper and electronic documents in a secure, proportionate and efficient manner.
This is reflected in the Supreme Court of Queensland Practice Direction No. 18 of 2018.2
Securing confidential information
It is essential for law firms to prioritise the security of sensitive information to protect against unauthorised access to data and mitigate the potential consequences of a security breach.
As the litigation process often requires the handling of large volumes of information, practitioners should approach the transfer of documents with caution.
The QLS Guide: Removable data storage best practice addresses the associated risks of using USB devices, and suggests for firms to integrate a policy that addresses three main areas of concern:
- USB devices can be used to copy large volumes of data which is then removed from the organisations’ control.
- USB devices are easily stolen or lost.
- USB devices may be infected with malware which can infect the network even if no files on the drive are opened.3
Best practice suggests that encryption is a mainstay of any information strategy, and additional protection requires the use of centrally managed USB devices where policies on the management and secure handling of such devices are enforced.
Efficient management of documents
Where discovery is necessary, the Court expects parties and their representatives to take all steps to minimise its burden.4 Practitioners and litigants are directed to adopt a proportionate and efficient approach to the management of both paper and electronic documents at all stages of the litigation.
In Fletcher and Fletcher,5 the court commented on the extraordinary legal costs incurred by the parties which were considered disproportionate to the matters in issue in the proceedings. O’Brien J reiterated the duty of practitioners to give sufficient consideration in preparing or presenting their case as to how they might best assist the court and to do all they reasonably can to ensure that proceedings are conducted in a timely and cost-efficient way in all litigation.6 Adducing only that evidence which is relevant to matters actually in issue is fundamental to the discharge of those duties. In this regard, practitioners must deliver legal services competently, diligently and promptly,7 which requires courtesy in disclosure, based partly relevance8, format and also security.
Supreme Court of Queensland Practice Direction No. 18 of 2018 notes that parties must ensure that all steps in relation to the transfer and security of documents are proportionate having regard to:
- The nature and complexity of the proceedings;
- The amount at stake or the relief sought;
- The real issues in dispute;
- The stage the proceedings have reached;
- The volume of potentially relevant documents;
- The ease with which documents may be retrieved or reviewed;
- The time and costs associated with the proposed steps; and
- The likely outcome or benefits to be derived by taking the proposed steps and the extent to which these are likely to have a significant impact on the outcome of the proceedings.
Practitioners are referred to Supreme Court of Queensland Practice Direction No. 18 of 2018 and the Federal Court of Australia General Practice Note: Technology and the Court for further information.
1 ‘Litigation 101: Discovery – Understanding the process and obligations’, Clayton Utz (Web Page, 9 June 2022) <https://www.claytonutz.com/knowledge/2022/june/litigation-101-discovery-understanding-the-process-and-obligations>.
2 Supreme Court of Australia, Practice Direction No. 18 of 2018: Efficient Conduct of Civil Litigation, 17 August 2018.
3 Queensland Law Society, QLS Guide: Removable data storage best practice for law firms (Reference Guide, March 2019) <https://www.qls.com.au/Practising-law-in-Qld/Resources/Cybersecurity>.
4 Federal Court of Australia, General Practice Note: Technology and the Court (GPN-TECH), 25 October 2016.
5  FCWA 149, . See also Re Morgan  VSC 133 at  where the court considered the overarching obligations imposed on parties and practitioners to use reasonable endeavours to ensure that legal costs and other costs incurred in connection with the civil proceeding are reasonable and proportionate.
6 Fletcher and Fletcher  FCWA 149, .
7 Queensland Law Society, Australian Solicitors Conduct Rules 2012 (at 1 June 2012) r 4.
8 Pearson v Denman  QDC 221, [19-21].