Electronic Discovery Issues: Disclosure Requirements in Britain, Canada and Australia
Tyler, Mark L., Neill, David R., Clark, S. Stuart, Defense Counsel Journal
There is little authority on discovery of electronically stored material, but these countries have rules supporting the duty of broad disclosure
AGAINST the backdrop of fast-developing information technology, the proliferation of electronic communications and the use of increasingly sophisticated computerised document management systems, U.S. case law and commentators have led the way in drawing attention to the implications for confidentiality and the dangers that lie in wait for litigants in the discovery process.1 Other jurisdictions have been slower to come to terms with the ramifications of procedural rules and the way in which lawyers approach discovery.2
The law on discovery of material in electronic media is undeveloped in these jurisdictions, and few firm conclusions can be derived from existing case law. However, it is settled law that the definition of document encompasses media such as photographs, films and computer discs. An English court said as long ago as 1908, "There is a document wherever there is writing or printing capable of being read, no matter what the material may be upon which it is impressed or inscribed."3 The courts are likely to protect documents or other information from disclosure in circumstances where privilege would be upheld if the records were held in the form of paper.
In Britain, Canada and Australia, the rules relating to discovery and inspection of documents are found in the procedural rules of the courts and the associated body of case law.
In the High Court of England and Wales, procedure is governed by the Rules of the Supreme Court (RSC). The county courts have an overlapping jurisdiction, although in the main, actions with a value of L50,000 or more will be in the High Court. The County Court Rules (CCR) are broadly the same as the RSC.4
The rules of civil procedure for Ontario provide the source of all Canadian examples to follow. Notwithstanding that the rules vary within the common law provinces (Quebec is governed by the civil law), they remain fairly consistent throughout Canada. The Ontario rules roughly reflect the Canadian position on documentary discovery.
In Australia, each court has its own set of rules, which are largely similar. Separate rules exist for the High Court, Federal Court, and the state supreme courts. In addition, the lower courts in each state (the district court and local court or equivalent) also have their own rules. However, the position in New South Wales in relation to its state Supreme Court Rules is now different because of recent amendments, aspects of which will be discussed. In addition, in Australia, the common law has been modified by virtue of Evidence Acts enacted in 1995 by the Commonwealth of Australia and the New South Wales parliaments.
In these jurisdictions, parties generally are required to disclose all relevant documentary materials, unless they are subject to privilege, in contrast to the U.S. procedure of providing discovery in response to an opponent's requests. This frequently requires lawyers having to advise and make judgments about the relevance of individual documents or classes of documents to the issues pleaded. An English court stated:
. . . any document must be disclosed which it is reasonable to suppose contains information which may enable the party applying for discovery either to advance his own case or to damage that of his adversary or which may fairly lead him to a train of inquiry which may have either of these two consequences. Discovery is thus not necessarily limited to documents which would be admissible in evidence.5
This will include documents adverse to the client's case, as explained by Sir John Donaldson, Master of the Rolls, in Davies v. Ely Lilly & Co., when he observed that:
The right [to discovery] is peculiar to the common law jurisdiction. In plain language, litigation in this country is conducted "cards face up on the table. …