The Australian Law Reform Commission (ALRC) has said it would support moves to encourage companies to adopt document management systems to help ease the legal discovery process. However, the commission said it couldn't put its weight behind a recommendation to force all businesses that wanted to litigate to have such systems.
The commission last week released a report on moves the government could make to ease the burden of discovery on litigants. With information relating to cases running into the terabytes and being added to everyday, the cost to conduct a full discovery process can be prohibitive and disproportionate to the benefit the parties receive from the case.
The Association of Legal Support Managers had proposed that corporate litigants should be forced to adopt "appropriate" record management systems, saying that the "root cause" of discovery problems is how many litigants keep their records.
"When a lawyer wishes to undertake a review of records for the purpose of case preparation or discover, the lawyer often encounters large numbers of disorganised records and is tasked with having to create a system for managing those records before any consideration can be given to commencing a review," the association had said.
The Australian Lawyers Alliance also said that businesses organised their information how best it suited them, with no thought of litigation, adding that it might not be possible for a respondent to provide documents if they're scattered over a number of computers without a system to retrieve them.
The ALRC noted that effective information management was necessary for an efficient discovery process, and said it supports initiatives to encourage litigants to adopt document management systems. However, the commission thought that any reform to impose systems on litigants would be beyond the scope of the review it was conducting as it would impact all businesses' conduct on information management.
The report recommended that guidelines for the creation of a discovery plan should identify search strategies to carry out a "reasonable search" for discoverable documents, which document repositories (such as backup tapes or recovery systems) are not "reasonably accessible", whether metadata should be discovered and strategies to preserve the integrity of metadata, as well as technologies to de-duplify documents and estimate the likely time and cost of discovery.