The NZ discovery reforms introduce a mandatory listing and exchange protocol (the protocol) to facilitate the production of information. A key feature of the new NZ rules is that there is flexibility to modify the protocol to suit the requirements of the matter. Continuing my series of looking into the NZ discovery reforms, I will look into how other jurisdictions have also introduced methods to exchange information.
Why a protocol?
The introduction of the protocol aims to promote uniformity and consistency as there is now a set default position as to how documents should be listed and then exchanged. Up until now, there have been no common standards for dealing with the listing and exchange of information. Listing and inspection can often become a ‘free for all’, which can lead to unnecessary additional costs and delay to the proceedings. One party may go to considerable expense by listing and providing their documents in a detailed format, but the other party may provide very little information. This would often see the party that had already incurred substantial expense would then have to do so again as they turned the other parties documents into a workable format. The protocol seeks to simplify the listing and exchange of information and provides certainty in the process.
We have seen other jurisdictions introduce common standards to assist parties exchange information.
In Australia, document management protocols are included within the Federal Court Practice Note CM6 – Electronic Technology in Litigation. Parties are expected to use the Default Document Management Protocol for matters with over 200 documents and the Advanced Document Management Protocol for matters where the number of documents is anticipated to exceed 5000. Both of these protocols are excellent steps to ensure common standards in the exchange of information.
Practice Direction 31B – Disclosure of Electronic Documents (PD31B) in the UK, takes a slightly different approach. It doesn’t define the specific requirements for parties to exchange documents and they have largely left this in the hands of the parties. Paragraph 32, specifies, The parties should co-operate at an early stage about the format in which Electronic Documents are to be provided on inspection. The requirements of what information should be provided is also detailed in paragraph 31, which is very similar to the default requirements at paragraph 1 of the NZ protocol.
The UK approach recognises that not every matter is the same and the exchange format is just one of many important aspects that parties should cooperate over. Too often I have witnessed parties getting too caught up in precise “one size fits all” protocols, which can lead to unnecessary delay and burden for parties.
The UK Practice Direction also recommends that documents should be provided in their Native Format (unless agreed otherwise). Even though the NZ reforms require a PDF image format as its default position, there is still the flexibility at the Discovery Checklist phase for parties to agree the format for exchange. Paragraph 4.3 of the Discovery Checklist outlines further considerations for parties to consider reducing the unnecessary costs associated with listing documents, namely –
a) use native electronic versions of documents as much as possible; and
b) use the extracted metadata from native electronic documents, instead of manually listing documents; and
c) convert documents to image format only when it is decided they are to be produced for discovery; and
d) if document images are to be numbered, only number when it is decided they are to be produced for discovery.
These considerations, along with other details in the Discovery Checklist, provide a useful framework for parties to consider that can assist them in undertaking discovery more efficiently and cost effectively. Parties that wish to provide more efficient and accurate results for their clients will usually seek to assess and produce documents in their native format. The converting to image format may be an unnecessary step for many that only adds extra cost to the process. The Discovery Checklist is based on best practices, but with the ability for parties to come up with an agreed approach to suit the requirements of the dispute, respecting the fact that not every matter is the same.
Modify the protocol to suit your requirements
When I discuss the new requirements with clients, I stress that all the new requirements of the protocol will not be appropriate on all matters, so it is essential to seek to modify when it is best to do so. This point is often missed by many as they often disregard the importance of the Discovery Checklist and solely focus on the protocol. If this approach continues in practice then we will see no reduction in the costs associated with discovery.
Hopefully we will see parties modifying the protocol if it is proportionate to do so, or in fact come up with a format of exchange by agreement with the other side. This will only eventuate if parties are prepared to discuss with the other party and cooperate as required over the listing and exchange of documents. We want to make sure that parties do not incur unnecessary costs if they can be avoided.
The point of the new rules is to try and remove much of the human element of discovering information. Parties should aim to remove the burden and cost involved in the manual listing of documents, by using the relavant metadata contained within electronic documents. In large volume cases parties will normally agree to use the metadata to populate the document decriptions for the listing requirements and not be expected to manually input this information.
Removing inefficient, out-dated practices
The costs associated with listing and exchanging documents are minimal when compared with overall discovery costs. The majority of the cost of discovery is the document review (as I illustrated in my last post in this series). Too often many carry on working with out-dated practices, to deal with new issues created by electronic documents. These inefficient practices are adding unnecessary cost and burden to the discovery process. Just because you dealt with paper in a certain way, it doesn’t mean you can treat electronic information in the same way – simply performing a page turn exercise on screen, in the same way they would review documents in paper in a room is not going to reduce litigation costs (it will probably even increase them !).
The new rules set common standards for exchanging information, which is a positive development, but the true efficiencies and cost effectiveness will be achieved by those who can be more proactive at the early stage of the discovery discussions. The Discovery Checklist provides a framework to facilitate more cost effective discovery practices.
On a final note, electronic discovery is not solely turning documents into an electronic format for exchange – I know I often have to reinforce this to people. I hope by providing more information about e-discovery issues through my blog and twitter, will assist in raising the awareness of electronic discovery in New Zealand.
Contact us today for further information, or if you want to know what the new rules could mean for you.