This chapter explores the potential for gamesmanship in technology-assisted discovery.1 Attorneys have long embraced gamesmanship strategies in analog discovery, producing reams of irrelevant documents, delaying depositions, or interpreting requests in a hyper-technical manner.2 The new question, however, is whether machine learning technologies can transform gaming strategies. By now it is well known that technologies have reinvented the practice of civil litigation and, specifically, the extensive search for relevant documents in complex cases. Many sophisticated litigants use machine learning algorithms – under the umbrella of “Technology Assisted Review” (TAR) – to simplify the identification and production of relevant documents in discovery.3 Litigants employ TAR in cases ranging from antitrust to environmental law, civil rights, and employment disputes. But as the field becomes increasingly influenced by engineers and technologists, a string of commentators has raised questions about TAR, including lawyers’ professional role, underlying incentive structures, and the dangers of new forms of gamesmanship and abuse.4

The laws and rules governing the professional obligations of lawyers, including the allocation of legal costs, vary between different Australian jurisdictions. This chapter will explain the different types of legal costs and discuss generally how courts deal with costs disputes between lawyers and their clients (solicitor-client costs). This chapter will also consider how courts allocate costs between parties in litigation (party-party costs and indemnity costs), including the important impact of settlement offers on costs consequences and the growing role of litigation funders. This chapter will also consider the use of costs as both a compensatory and deterrent mechanism, including in the context of interlocutory skirmishes and personal liability of legal practitioners for costs.

Courts, practitioners, and academics alike have long considered corporate officers and directors to be fiduciaries of the public corporation and its shareholders. As corporate law has evolved, however, with the business judgment rule strengthening, the duties of care and loyalty narrowing in scope, and executive compensation schemes further introducing self-interest into corporate decision making, the fiduciary paradigm is no longer an accurate description of the nature of the relationship between corporate managers and the corporation. Corporate officers and directors have significant latitude to make decisions that take into consideration their self-interest while still satisfying their duties to the corporation. Further, the “best interests” of the corporate entity and its multitude of stakeholders are highly variable and often ill-defined, such that it would be impractical to pursue those interests as a singular goal. This Article argues that corporate officers and directors are not governed by fiduciary duties in the truest sense of the term. This misconceptualization inhibits an accurate understanding of the dynamics underlying corporate decision