When Discovery and Technology Meet: The Pre-Discovery Conference

Michael Legg, Senior Lecturer, Faculty of Law, UNSW and Consultant, Clayton Utz

15 April 2011

© Michael Legg

Overview

• What is a pre-discovery conference?

• Pre-requisites for an effective conference

• Topics for the Conference

• Legal Professional Privilege/Client Legal Privilege

• Cooperation in an Adversarial system

Pre-discovery Conference

• "meet and confer"

• parties discuss the issues around discovery, especially if electronically stored information (ESI) is involved

• judge may or may not be present

• more informal environment compared to directions hearing - may still have transcript

Pre-requisites for an effective conference

• Know your case – what are the issues raised by the pleadings

• Know your client’s document retention/filing system, including their IT system

• Understand where the information relevant to the issues in the case can be found in your client’s systems

Pre-requisites for an effective conference

• Know your case – what are the issues raised by the pleadings:

• “It is ... the pleaded issues that will determine the outer limits of discovery obligations (assuming these obligations are not otherwise limited by an order of the Court)” – Sackville J in BT (Australasia) Pty Ltd v NSW

• “The scope of discovery is determined by the pleadings” – Spender J in Humphries v SAS Signage Accessories Supplier Pty Ltd

Pre-requisites for an effective conference

• Know your client’s document retention/filing system, including their IT system

• where is ESI stored? central server, individual desktop or laptop computer, bottom draw, non-descript brown box

• document retention policies

• use and recycling of backup tapes

• bring your helpful (but not too helpful) IT person

Topics for the Conference• the scope of discovery;• strategies for conducting a reasonable search;• management of electronic documents:

• a strategy for the identification, collection, processing, analysis, review and exchange of electronic documents;

• a strategy for management of electronic documents within databases, proprietary computer systems and other uncommon formats or repositories;

• a strategy for the preservation of electronic documents;• a timetable and estimated costs for discovery;• privilege;• the document management protocol to be used; and• areas of disagreement.

Scope of Discovery

• What is the default position in the jurisdiction?

• Does the judge have any known preferences? Eg hates categories, loves general discovery

• Judges have the discretion to tailor discovery to a particular case

• Don’t forget the overarching/overriding purpose – balancing justice, cost and delay

Scope of DiscoveryDuring a pre-discovery conference, lawyers should seek to narrow the scope of their client's discovery obligations by:

• narrowing the list of custodians of potentially relevant records,• limiting the relevant time frame,• considering alternative sources of information that may be

cheaper and easier to access,• understanding how a clients IT systems functioned so that

how and where information is stored can be used to explain why certain sources of data will or will not contain relevant information, and

• excluding irrelevant computer systems.

Search Strategy

• keyword searches

• concept searches

• negotiation/agreement or unilateral decision

• feedback loop

• expert evidence?

Preservation

• steps taken to impose "litigation hold"

• routine computer operations

• backup tapes

• need for / accessibility of legacy or deleted data

• policy on reuse of laptops/blackberry/iPhone etc

PrivilegeLegal professional privilege attaches to:

• communications, whether oral or in writing, made between a lawyer and a client (or in some cases, third parties); and

• documents (whether delivered or not) prepared by the lawyer or client;

that are:

• confidential in character; and

• made or prepared for the dominant purpose of either;

- enabling the client to obtain, or the lawyer to give, legal advice; or

- for use in actual, pending or anticipated litigation.

Privilege and ESI• privilege is a fundamental common law right

• "privilege review" prevents loss of privilege and client can keep legal advices, prospects of success in litigation, litigation strategy etc confidential

• ESI creates additional problems for privilege review - volume, metadata, email chains

• privilege review is costly and time consuming

NSW Practice Note SC Gen 7

12. Practitioners must ... meet to agree upon matters including … whether electronically stored information is to be discovered on an agreed without prejudice basis:

• without the need to go through the information in detail to categorise it into privileged and non-privileged information and

• without prejudice to an entitlement to subsequently claim privilege over any information that has been discovered and is claimed to be privileged under s 118 and/or s119 of the Evidence Act 1995 and/or at common law.

•

Quick-peek

• (1) the responding party makes potentially relevant information available to opposing counsel for review;

• (2) opposing counsel identifies which information is relevant to its requests; and

• (3) the responding party then conducts a responsiveness and privilege review of the identified information only

Claw-back

• This differs from a "quick peek" agreement in that the parties agree to produce material in the usual manner without any intention that privilege be waived. If a privileged document is inadvertently produced, the producing party must inform the receiving party, who in turn must return the document and not use it in the litigation.

Quick-peek and Claw-back

• The terms and conduct of an actual “claw back” or “quick peek” agreement will vary from case to case.

• For example, while no initial privilege review is necessary under a “quick peek” agreement, a party may still choose to conduct some form of review.

• A “claw back” agreement may adopt a range of requirements in relation to the amount of time after production privileged ESI has to be returned, the procedures for when privileged ESI is to be returned and the standard or method of review of the ESI to be undertaken prior to production

Waiver of Privilege

• In Australia waiver of privilege occurs where a party entitled to privilege "performs an act which is inconsistent with the confidence preserved by it". Mann v Carnell (1999) 201 CLR 1 at [28]-[29] and Osland v Secretary, Dept of Justice (2008) 234 CLR 275 at [35], [44]–[46] and [48]–[50]. and Uniform Evidence Law s 122.

• Where waiver occurs there is also a risk that there may also be subject matter or issue waiver whereby the privilege in related communications or ESI are lost.

• However, not every voluntary disclosure to a third party necessarily waives privilege. The law recognises that disclosure of privileged communications in certain circumstances, such as pursuant to a confidentiality regime, may avoid waiver.

Is discovery that includes privileged documents but on a without prejudice basis waiver:

in the instant litigation? in other disputes/litigation?

US Solution - FRE 502(d)

"A Federal court may order that the privilege ... is not waived by disclosure connected with the litigation pending before the court—in which event the disclosure is also not a waiver in any other Federal or State proceeding."

Co-operation

Two levels:

• honesty and good faith - comply with ethical and legal requirements

• parties work together to develop, test and agree upon the ESI being sought - reduce cost and delay

Co-operation in Australia

• overriding/overarching purpose

• Civil Procedure Act 2010 (Vic) s20: A person to whom the overarching obligations apply must cooperate with the parties to a civil proceeding and the court in connection with the conduct of that proceeding.

• self-interest?

When Discovery and Technology Meet: The Pre-Discovery Conference

Michael Legg, Senior Lecturer, Faculty of Law, UNSW and Consultant, Clayton Utz

15 April 2011

© Michael Legg