In Crocodile Dundee, a teenager approaches Michael “Mick” Dundee on the streets of New York, seemingly to ask for a light. As Mick complies, the kid pulls out a switchblade and demands his wallet. Though his date suggests that Mick should acquiesce because the kid has a weapon, Mick chuckles, pulls out a massive bowie knife, compares the weapons, and quips, “That’s not a knife…that’s a knife.”
Although “amicable” under the circumstances, Mick’s resolution reflects an approach that won’t work in Australian litigation. In general, Australian rules are not unlike the American approach to discovery that requires cooperation; however, its data privacy regime, which resembles that present in the European Union, complicates the transfer of data.
Rules of Court
A number of Australian courts have set forth recommended practices for e-discovery. For instance, Practice Note CM 6 of the Federal Court of Australia, Electronic Technology in Litigation, establishes a framework that parties should follow in cases that involve at least 200 documents or where technology can “facilitate the quick, inexpensive, and efficient resolution of the matter.” The framework includes the following recommendations:
- Parties should discuss and agree upon a “practical and cost-effective discovery plan.” They should meet and confer regarding the “electronic exchange of documents and other issues relating to efficient document management.”
- Parties should consider using technology to manage documents and the proceeding itself, including listing discoverable documents and exchanging and inspecting discovery.
- Parties should exchange documents in their usual format, so that the receiving party can have “the same ability to access, search, review, and display the documents as the party producing the documents.”
The Practice Note also provides several documents as guidance for parties, including a pre-discovery conference checklist, a Default Document Management Protocol (for cases involving 200 to 5,000 discoverable documents), an Advanced Document Management Protocol (for cases with more than 5,000 documents), and a pretrial checklist.
Other Australian courts have issued Practice Notes governing e-discovery as well. Practice Note No. SC Gen 7 from the Supreme Court of New South Wales encourages parties to discuss the terms of a protocol for conducting e-discovery that addresses the type and extent of ESI discovery, format for production, and privilege issues, among other things. Practice Direction No. 10 of the Supreme Court of Queensland, Use of Technology for the Efficient Management of Documents in Litigation, encourages litigants to make use of technology “where possible to achieve efficiency,” in particular for identifying, collecting, and reviewing documents in discovery. Other states have similar enactments.
The common thread through all of these is cooperation. Parties that work together to develop a discovery plan that addresses the primary aspects of e-discovery can avoid creating internal disputes that require judicial intervention.
Data Privacy Regime
Australia has a number of data privacy principles that can complicate discovery where personally identifiable information is at issue. Australia law defines personal information as “information or an opinion . . . whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.” Sensitive information includes a person’s race or ethnicity, political opinion, membership in political organizations, religious beliefs or affiliations, philosophical beliefs, membership in professional or trade associations, membership in trade unions, sexual preferences or practices, criminal record, and health and genetic information.
As with many other nations, Australian rules limit the transfer of data outside the country unless certain parameters are met, including that the data subject gives his or her consent and that the data recipient is subject to a law or contract with provisions that echo Australia’s data privacy principles.
Steps to Take
As with all e-discovery, regardless of location, the best practice is to plan for potential litigation. Developing a litigation-readiness strategy well in advance can be a boon when lawsuits arise. One of the most important considerations is whether to retain personally identifiable information within Australian borders; in many cases, it may be more efficient to store that data elsewhere. In case this isn’t possible, organizations should consider an on-site solution for processing and reviewing data.
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