Post Process

Everything to do with E-discovery & ESI

E-Shredding: The View from Down-Under

Posted by rjbiii on October 16, 2007

Australian IT looks at the challenges posed by electronic discovery, and briefly compares the U.S. and Australian responses.

US courts have taken a dim view of failure to produce electronic documents in a timely fashion. Morgan Stanley faced a mind-focusing $US1.45 billion bill – including $US850 million in punitive damages – in a 2005 case. (Although the judgement was overturned in March, it is still subject to appeal.)

Other corporations penalised over electronically stored information non-compliance include UBS Warburg ($US29 million), Microsoft ($US27 million) and Philip Morris ($US2.75 million).

In Australia, the Victorian Supreme Court became the first to make a move, introducing an e-litigation Practice Note in February.

The note deals with the use of technology in litigation, including the electronic exchange of court documents, discovery lists and discovered documents. At present the note applies when the parties agree to it, or subject to a court order.

The article concludes that courts in Australia have not yet come to appreciate the “scale of the problem posed by ESI.” That may be, but a news report out of the country announce that new rules for handling electronic discovery will be released before Christmas.

Seamus Byrne, director of forensic technology at Vincents Chartered Accountants and a member of the court’s working party on e-discovery, said the planned Practice Note would be a turning point.

It is expected to emulate the US model, the 2006 Federal Rules of Civil Procedure, which imposes strict obligations on companies on their handling of electronically stored information and ensuring its availability for commercial litigation.

Mr Byrne said the revised note “will bring e-discovery to the masses”, and re-level the playing field that has in recent years been skewed in favour of large corporations and top-tier law firms.

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