Black Saturday continues to burn

A  multi-million dollar dollar class action lawsuit over the 2009 Victorian “Black Saturday” bushfire has thrown up some major ediscovery challenges

More than 1000 bushfire survivors and their families are suing power distributor SPI. A trial is scheduled to take place in January, 2013.

The claimants allege SPI was negligent when a 43-year-old powerline owned by the power company fell and sparked the Kilmore bushfire.

The Kilmore bushfire killed 119 people and destroyed 1242 homes.

SPI has denied any liability, and sued Victoria Police, the Department of Sustainability and Environment and the Country Fire Authority over their role in Black Saturday.

The survivors are being represented by law firm Maurice Blackburn. Lawyer Rory Walsh told the Herald Sun newspaper that costs of the legal action could run into the hundreds of millions.

A not insignificant part of this cost will be the pretrial process of discovery of all documents which must be accomplished by March 2012 before court-ordered mediation in November.

The extent of the discovery and its challenge for document management were outlined in a judgement handed down in the Supreme Court of Victoria on 30 August 2011.

Justice Rita Zammit was ruling in the case brought by Carol Ann Mathews,, whose son perished in the bushfire, and SPI, as well as another case between SPI and another utility that it had engaged to maintain its powerline network, Utility Services Corporation (UAM).

One of the many discovery questions that had to be dealt with in this case included the question whether searches extending 40 years are oppressive.

Lawyers for Ms Mathews allege the Kilmore bushfire was started as the result of a failure between wire conductors on a powerline. SPI had engaged UAM in 2007 to maintain its powerline network.

SPI alleges that if the Kilmore fire was associated with a breach in the conductor in the Valley Span (which it denies), then the Kilmore fire was caused by the UAM’s breaches.

In her October 30 ruling, Justice Zammit notes “The applications before the Court highlight the current challenges of using discovery as a court procedure.”

“The vast amount of data created and stored by electronic means poses a new challenge for the use of discovery as a court procedure. Discovery is a topic that attracts a great deal of attention due primarily to the exorbitant costs that are incurred by the parties and the delay caused in litigation.

“The Court has long recognised that discovery disputes, large scale unfocussed discovery exercises and the resulting costs, work against the interests of the parties to the litigation, the operation of the civil justice system and ultimately the interest of the community.”

On January 1 2011, new rules were introduced into Victorian courts introducing the concept of a “reasonable search, requiring a consideration of proportionality.” These mirror rules introduced into  Australia’s Federal Court.

In addition to more than 1500 pages of evidence and documents that had already been made available to the Victorian Bushfire Royal Commission, which concluded in 2010, UAM wanted discovery of material going back to 1994 in order to see what other contracts were in place between SPI and other inspection maintenance/service providers.

Freehills associate Ruth Overington, acting on behalf of SPI, maintained that extending dicovery beyond the existing terms would require searching approximately 15,700 archive boxes and could  take several years.

Justice Zammmit ruled “The time and cost of such an exercise is not proportionate to the likely benefit.

The discovery will be limited to a plan agreed to by both parties in July 2011.

According to Freehill’s estimate, this will still involve retrieval and review of approximately 155,000 documents comprising:
- 45,000 from electronic shared drives;
- 50,000 from the mailbox;
- 60,000 from individuals, board and sub-committee;
• 250 boxes of archived material; and
• 7 database extracts.

UAM applied to the court to also gain discovery of documents relating to the actual inspection and maintenance records of the Pentadeen Spur for the entire existence of the line, that is, some 40 years.

“While the state of the assets and their inspection prior to the fire on 7 February 2009 is relevant, discovery over such a period is not reasonable. I am satisfied that embarking upon such a discovery exercise would be unduly burdensome and costly,” ruled Justice Zammit