Recently I have pointed clients in the direction of the UK Electronic Documents Questionnaire to assist them undertake discovery under the new NZ court rules. Tools from other jurisdictions (like the Electronic Documents Questionnaire), can provide good practical guidance for parties to tackle discovery more proportionately and cost effectively under the new e-discovery rules.
With all of the benefits of the new discovery rules, they do not provide the level of practical guidance as is contained in the UK Electronic Documents Questionnaire. In saying that just because there is not a practical questionnaire contained within the new discovery rules, it does not mean parties cannot use one – especially when ones use maybe helpful.
In the UK, the electronic documents questionnaire is contained within their E-Disclosure Practice Direction (which is ‘loosely’ similar to the new NZ Discovery Checklist). The Electronic Documents Questionnaire purpose is –
In some cases the parties may find it helpful to exchange the Electronic Documents Questionnaire in order to provide information to each other in relation to the scope, extent and most suitable format for disclosure of Electronic Documents in the proceedings.
On a recent matter I was involved in, both parties agreed to exchange a version of the UK Electronic Documents Questionnaire. Upon exchanging this information, both parties were able to decide on a proportionate discovery order and the methods to search and provide information.
For many the questionnaire may just be a helpful tool to use with their clients as they consider their approach to discovery. As parties get more experience with using a tool like the questionnaire, exchanging this information may assist parties focus their initial discovery discussions.
I often work with clients to modify a questionnaire to suit their requirements. Firstly to help them assess with their client as to what they have and where it is located, equipping them with the material to be more informed when they commence discussions with the other parties. Secondly, detailing what they want to find from the other parties discovery and how they propose searching and exchanging information. Those parties that can do more work in this area prior to the discussions with the other party will have a significant advantage over parties who haven’t turned their mind to their discovery exercise at an early stage.
Being more informed about electronic information
As I mentioned in a post a few months ago, it is now more important for parties to be more informed about their electronic sources and volumes of information at an earlier stage. Working through a practical electronic documents questionnaire can assist parties deal with the evolving e-discovery issues.
The new rules establish a framework to assist parties to reach agreement on discovery issues in a proportionate and cost effective manner. Tools like an electronic documents questionnaire can help parties make more informed decisions about proportionately and cost effective methods.