Paying for discovery? Disclosing privileged documents? The new Discovery Act
The Justice Legislation Amendment (Discovery, Disclosure and Other Matters) Act 2014 Vic (commenced 12 May 2014) aims to improve the efficiency of the discovery process.
The Act (among other things) amends the Civil Procedure Act 2010 (Vic) and aims to further the overarching purpose of civil litigation by promoting the just, efficient, timely and cost-effective resolution of the real issues in dispute by giving the courts power(among other things) to:
- Order parties to provide an affidavit of document management:
- to assist the court in making directions relating to discovery; and
- requiring details of volume, type and location of documents; and
- requiring details of manner or arrangement of storage (s 55B); and
- requiring the deponent to attend for oral examination (s 55C).
- Order parties to prepare a statement summarising the key issues in dispute:
- Which may be used in relation to pre-‐trial procedures; and
- Which may be used in the conduct of proceedings at trial (s 50, 50A).
- Order a party requesting discovery to pay the discovery costs of another party (s 55(4).
- If all parties consent, order a party to provide all documents in their possession or control (on the basis that privilege is not waived) relevant to the issues in the proceeding, beyond those required by the Rules of the court (s 55A).
The amendments raise a number of concerns for practitioners including:
- The content of a ‘key issues in dispute’ statement, the power of the court to settle that statement and the relationship of the statement to pleadings.
- Under what circumstances will the requesting party be liable (in advance) for the discovery costs of another party and on what basis will those costs be recoverable?
- What will be the long‐term and wider impact on the law of privilege of permitting parties, by consent, to disclose privileged documents (on the basis that, under this Act privilege is not waived)?