Supreme Court of Victoria, Practice Note 1 of 2007: Guidelines for the Use of Technology in any Civil Litigation Matter (2007) [2.8.2], [6.7], Supreme Court of New South Wales, Practice Note SC Gen 7 - Use of Technology , 9 July 2008 [12] and Federal Court of Australia, Practice Note CM6 - Electronic Technology in Litigation , 25 September 2009 [7].
Fed Court CM6 NSW SC Gen 7: 12. Practitioners must advise their opponents at an early stage of the proceedings of potentially discoverable electronically stored information and meet to agree upon matters including: the format of the electronic database for the electronic discovery, noting that metadata, mark-up or other “hidden” data will be automatically discovered if native format is used. Because of potential costs, the Court would ordinarily expect it should only be discovered where the relevance outweighs the cost the protocol to be used for the electronic discovery including electronically stored information the type and extent of the electronically stored information that is to be discovered how legacy or deleted data is to be dealt with. The existence of ESI that is not reasonably or readily accessible should be disclosed between the parties, but the Court would ordinarily expect that it would not need to be retrieved unless necessary for the conduct of the proceedings 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. Such ESI could be produced separately on a CD-ROM or DVD and appropriately marked to enable the Court to determine any privilege issue.
In the Federal Court and Supreme Court of Victoria a party is required to discover documents that it is aware of at the time it makes discovery having conducted a reasonable search. A party must discover documents: that it relies on which adversely affect the party’s case and that support or adversely affect another party’s case. Federal Court Rules Order 15 rule 2(5).
how to avoid loss of privilege? search strategies can find privileged documents eg search on "privilege" and known lawyer's names - but not perfect
At common law, a client who would otherwise be entitled to the benefit of legal professional privilege, might waive that privilege and that waiver might be express or implied. See 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]. The Evidence Act 1995, s 122 also provides for waiver and has been amended to adopt the test in Mann. See Explanatory Memorandum, Evidence Amendment Bill 2008 (Cth) at 27.
FRE 502(e) Controlling effect of a party agreement.— An agreement on the effect of disclosure in a Federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.
Sedona Conference Cooperation Proclamation
Federal Court Fast Track 5.1 The Court expects the parties and their representatives to cooperate with, and assist, the Court in ensuring the proceeding is conducted in accordance with the Fast Track Directions so that the real issues in dispute are identified as early as possible and are dealt with in the most efficient way possible.
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