E-Discovery - The New Zealand

Approach

• New principles introduced such as those of co-operation and proportionality. • New duties require the preservation of documents, often before

proceedings are commenced, and the disclosure of documents when pleadings are filed. • A discovery checklist is provided with which parties must consult and

they may then be required to make standard or tailored discovery. • A new listing and exchange protocol is introduced with inspection to

take place by way of electronic exchange. • The new rules came into force on 1 February 2012

OVERVIEW

• To reduce disproportionate costs and delays that are caused by discovery. • To reduce the tactical use of

discovery.

OBJECTIVES

• The parties must co-operate in order to ensure that discovery is proportionate and facilitated by agreement on practical arrangements – HCR 8.2.• As soon as litigation is reasonably contemplated, prospective parties

to that litigation must take all reasonable steps to preserve documents that are reasonably likely to be discoverable – HCR 8.3.• The party must make initial disclosure of documents referred to in a

pleading or used when preparing the pleading. The disclosure must be made at the time that the pleading is served – HCR 8.4.

WHAT THE RULES PROVIDE - 1

• The parties must discuss and endeavour to agree on an appropriate discovery order prior to the first case management conference, addressing a new discovery checklist set out in the rules – HCR 8.11.• At the case management conference the

Judge may • dispense with the discovery, or; • order standard discovery, or; • order tailored discovery – HCR 8.12.

WHAT THE RULES PROVIDE - 2

• The parties’ obligation to conduct a reasonable search for discoverable documents is now specified in the rules – HCR 8.14.• Documents must be listed in accordance with

a new listing and exchange protocol, unless the parties agree otherwise – HCR 8.15, 8.16.• Inspection now takes place by way of an

electronic exchange of documents, unless the court orders otherwise – HCR 8.27.

• This means that paper documents must be scanned electronically so that electronic copies can be exchanged.

WHAT THE RULES PROVIDE - 3

• Rules do not mandate the use of digital tools and methods to find, identify, locate, retrieve or review documents • But such tools and methods, when properly implemented, can lower

the monetary costs of the litigation and accord with cost and proportionality principles.• Rules recognise use of digital tools as an approach to e-discovery

DIGITAL TOOLS

• Comes into play at the beginning of proceedings. • Provides a roadmap for the discovery

process leading up to the first case management conference and beyond • Reflects the early discovery

obligations of the parties and of counsel.

THE DISCOVERY CHECKLIST

The ChecklistReflect aspects of the E-Discovery Reference Model

Reflect aspects of the E-Discovery Reference Model

1. assessing proportionality2. the extent of the search3. tailored discovery4. listing and exchange5. presenting documents at trial.

THE FIVE STEPS

• Review the pleadings to identify the categories of documents that would be required if a standard discovery order were made• Identify where those documents are likely to be located• Estimate the likely volume and cost of discovering the above material• Assess and discuss with the other parties whether that estimated cost

is proportionate to the sums in issue or the value of the rights in issue in the proceeding.• If disproportionate consider tailored discovery as opposed to standard

discovery

ASSESSING PROPORTIONALITY

• Parties must assess whether methods identified in the checklist may assist in efficient location of ESI• Consider whether it would be appropriate to seek a tailored discovery

order

THE EXTENT OF THE SEARCH

• Tailored discovery is presumed to apply instead of standard discovery if the costs of standard discovery are disproportionate to the matters at issue, if there are allegations of fraud or dishonesty, where the sums at issue exceed $2.5 million dollars, or where the parties agree – HCR 8.9. • Tailored discovery may involve more or less discovery than standard

discovery – HCR 8.8. • Tailored discovery requires discovery by category or by some other

method that facilitates the identification of particular documents – HCR 8.10.

TAILORED DISCOVERY

• endeavour to agree a proposal in relation to the discovery order that should be made• Must take into account

• Categories of documents to be discovered and limiting discovery to what is reasonable and proportionate by category

• Methods and strategies for locating documents including • specialist help – • Keyword searching, • concept searching, • clustering technology, • document prioritisation technology, • email threading, • duplicate identification • and any other new tool or technique;

• Discuss whether a staged approach may be appropriate

COUNSEL’S OBLIGATIONS

• To reduce unnecessary costs of listing documents, parties are encouraged to: • Use native electronic versions of documents as much as possible; and• Use the extracted metadata from native electronic documents instead of manually listing

documents; and• Convert documents to image format only when it is decided they are to be produced for

discovery; and• If document images are to be numbered, only number those images if they are to be

produced for discovery.‘

• Parties may consider whether this is appropriate and seek modifications• Parties may modify listing and exchange protocol in the Rules – by agreement in

writing

LISTING AND ENCHANGE

• The parties must—• (a) consider with the other parties how documents will be used efficiently and

effectively in preparation for and in the conduct of the trial (for example, whether an electronic bundle of documents will be used); and• (b) ensure the format adopted for listing and exchange of documents is

compatible with any such uses.

• Note that an Electronic Bundle Practice Note was released in 2013

PRESENTATION AT TRIAL

• It is implicit that all parties including the judicial officer should have the knowledge of the benefits, advantages and disadvantages of the various documents sorting and document review technologies that are available

• At times, depending upon the nature of the documents and their extent, such knowledge or awareness is going to have to be detailed and specific

• May have an impact upon a tailored discovery order

KNOW THE TECHNOLOGY!

• Emphasis upon cost-effectiveness and proportionality• A path to agreement about scope and extent of discovery• No mandated use of technology although its use is almost inevitable• Meet and confer – consult and co-operate requirements• E-discovery seen as a process• Case management conference – a step in the process – use as a focus

England and New Zealand - Similarities

• Detailed treatment of keyword searches – an example rather than a default?• Focussed questionnaire – can the English EDQ be staged?• More specific in some areas – reasonable search in cl 20 – 24.• NZ Rules have made Peruvian Guano an exception rather than a

default

England and New Zealand - Differences

• Particular methods of discovery will depend upon the case in hand

• Different products may be more relevant to the different parts of the discovery process

• Lawyers and Judges are going to have to become intimately aware of the technologies that are available and of the technological processes that can underlay the discovery process if the advantages of cost reduction and proportionality that underlie the rules are to be achieved

LOOKING AHEAD

• E-Discovery is process driven• Co-operation not adversarialism• Obligations start early• Meet, confer and co-operate throughout the process• Parties expected to be well down the track by case management

conference• Counsel and judges need to be aware of the technological as well as

the legal options

CONCLUDING THOUGHTS