What America can Learn from E-Discovery in Australia

How ya going, mate? That’s the customary greeting in the Land Down Under, and it encapsulates why I love coming to Australia for my annual talkabout. Oz is friendly and familiar, but (like its A/C outlets) just twisted enough to be ever interesting.  I’d happily use this space to gush about the luminous night sky in Bateman’s Bay or the polyglot of cultures in incomparably lovely Sydney; but, you didn’t come here for a Rick Steves travelogue; you want the down low on e-discovery where the water drains counterclockwise.

In contrast to our British cousins–who are content to cede e-lunacy to the Yanks–Australians aspire to the American e-discovery experience.  Of course, Aussies met at e-disclosure and information governance confabs tend to earn their livings from e-discovery, and understandably envy America’s digital profligacy.  But, there’s more afoot than just dollars.  A segment of the Australian legal community “gets it” in ways I only dream of seeing back home.  And much like America, those who get it have had little success bringing along those who don’t.  

The best example is Australia’s brilliant Federal Court Practice Note CM6, entitled, “Electronic Technology in Litigation.”  “CM” stands for “Case Management,” and the practice notes are a low key way by which the Chief Justice of the Federal Court of Australia, acting upon the advice of the Judges of the Court, exercises the Court’s inherent authority to control its own processes.

While in Sydney last week to serve as a keynote speaker at the 9th Annual Information Governance and EDiscovery Summit, I had the pleasure of listening to the Honorable Justice James Stevenson of the Supreme Court of New South Wales ruminate about CM6.  My takeaway from his remarks was that Australia equaled the U.S. e-discovery experience in at least one way: Thoughtful guidance present in the rules is typically winked at and ignored in practice.

It’s a shame because CM6 is just so sensible, and enviable in its simple clarity.  Nearly a decade ago, I wrote a Ball in Your Court column for Law Technology News called, “A Golden Rule for E-Discovery.”  I implored, “

A level playing field means that the form in which information’s produced to me isn’t more cumbersome or obscure than what’s available to you. The elements needed to sort, read, classify, search, evaluate and authenticate electronic evidence—elements like accurate text and relevant metadata—should be in my hands, too.

In short, it shouldn’t be much harder to use or understand the information you’ve produced when it’s on my system than when it’s on yours. This digital Golden Rule has yet to find its full expression in the Sedona Guidelines or the new Federal e-discovery rules, but it’s a tenet of fairness that should guide the hand of every Solomon grappling with e-discovery

So, imagine my joy at seeing the following in CM6:

“Wherever possible, parties should exchange documents in a usable, searchable format or in the format in which the documents are ordinarily maintained. The exchange format should allow the party receiving the documents the same ability to access, search, review and display the documents as the party producing the documents.”

The Australian “Golden Rule” recognizes that there is more to fairness in forms of production than simple searchability.  Utility matters, too.  Exchange formats should allow the requesting party the same ability as the producing party, and note that CM6 speaks to the party, not the party’s attorney (who may be using creaky tools wedded to static image formats).

The U.S. Federal Rules read like an IRS form, where the Australian Practice Notes carry the homespun clarity of a Warren Buffet shareholder letter.  Here are the provisions that precede that quoted above:

“5.1 This Practice Note and the Related Materials are based upon the following observations concerning efficient document management:

(a) Electronic documents, including email, form an increasing proportion of Documents in proceedings before the Court. 
(b) Electronic documents must be managed efficiently to minimise the cost of discovery and the cost of the trial. 
(c) Printing electronic documents for the purpose of discovery will generally be a waste of time and money. 
(d) Photocopying paper documents multiple times for the purpose of discovery will generally be a waste of time and money.” 

There are other salient differences in discovery down under that grow out of there being more lawyers in Texas than in all of Australia, and that juries are, almost without exception, not permitted in civil actions. Litigation generally, and e-discovery particularly, are less aggressively pursued in Australia than in the States.  A smaller bench and bar prompts a greater sense of personal accountability when counsel fail to produce relevant evidence, but tends to chill adoption of new ways of litigating.  As Judge Stevenson wryly observed, the Practice Notes dictate that documents lodged with the Court be electronic instead of bound up as paper court books; but, His Honor has yet to encounter an electronic court book in his years on the bench.  Not once.

Another distinction in Australian e-discovery practice is the near-universal use of the locally-developed Ringtail review platform and heavy reliance on Adobe PDF as a production format.  While competing products like Relativity are not unknown in Australia, they’ve achieved little market penetration against FTI’s Ringtail platform compared to their dominance in the United States.

PDF is a more efficient and cost-effective form than TIFF imagery; but, both lack the economy and utility of native production.  PDF is little better than TIFF in terms of its limited support for fielded data–a feature lawyers ignore but one essential to functional search and practical cross-application data exchange.

Finally, I’d be remiss if I failed to note that, despite its limited appetite for e-discovery domestically, Australia is probably the worldwide leader in the development of top drawer e-discovery processing tools.  Nuix, Prooffinder and Vound’s Intella were all born and bred in Sydney, and all have seen spectacular market penetration and feature integration in the last few years.

And now for the experiment I’ve been waiting to do my whole life:

Yes, it’s true, the water really does drain the other way!