As New Zealand is finalising its discovery reforms, I thought it an opportune time to look at the reforms from a global perspective, comparing the reforms to what has happened in other jurisdictions.
Other jurisdictions have faced similar concerns as we are experiencing in New Zealand with the existing discovery rules becoming out-dated over recent years due to the evolving sources and volumes of electronic information. This has often caused the costs and burden of discovery to spiral out of control and often prevent true access to justice.
There have been many developments in other jurisdictions to address the practical issues associated with electronic documents in the modern age. Without going into detailed explanation of the comparative reforms, developments include:
- Practice Direction 31B – Disclosure of Electronic Documents, introduced in October 2010.
- Purpose – to encourage and assist the parties to reach agreement in relation to the disclosure of Electronic Documents in a proportionate and cost-effective manner.
- The Practice Direction also includes a Questionnaire that facilitates the provision of information about the existence of electronic information to enable informed decisions to be made
- [There had already been amendments made to the Practice Direction 31 – Disclosure and Inspection, by including an electronic disclosure paragraph at (2A) back in 2005. The new Practice Direction was largely introduced, because the previous provisions in the Practice Direction were often ignored].
- Federal Court Practice Note CM6 – Electronic Technology in Litigation, introduced in September 2009.
- Purpose – …facilitate the effective use of technology in proceedings before the Court by:
- setting out the Court’s expectations of how technology should be used in the conduct of proceedings before it; and
- recommending a framework for the management of documents electronically in the discovery process and the conduct of trials.
- The Practice Note includes checklists (both pre discovery and pre trial) and also a Document Management Protocol (both a default and advanced).
- Practice Direction 3 – Discovery and Inspection of Electronically Stored Documents, introduced in October 2009.
- Purpose – an opt-in framework for parties who wish to request and/or apply for discovery and inspection of electronically stored documents.
- The Practice Direction provides detailed guidance as to how parties should approach e-discovery. It also includes a protocol that parties may use.
- Amendments made to the Federal Rules of Civil Procedure in December 2006.
- Purpose – [rules] revised to address e-discovery issues.
All of these jurisdictions have basically intended the reforms to facilitate parties being able to reach agreements on how to approach the discovery of electronic documents, both proportionately and cost effectively. The changes haven’t just happened overnight, as it has involved considerable work by many people over many years.
New Zealand is one of the last common law jurisdictions to try and tackle the impact on discovery in the digital age. We have been fortunate in New Zealand as we have had the ability to watch developments in these comparative jurisdictions and ‘cherry pick’ different aspects from them all. Obviously we have had the balancing act, of deciding what are the most appropriate reforms for New Zealand, recognising that up until now we have not had any rules or guidelines to respond to the most effective discovery of electronic information.
There is nothing new being proposed in New Zealand, compared to what has already been implemented elsewhere. The proposed reforms in New Zealand primarily follow those implemented in the United Kingdom and Australia, and do not go into the detail of the stringent requirements from the United States (which some may argue is a very positive step). As mentioned in an earlier post, in contrast to these other jurisdictions, New Zealand has not previously had any practice directions or practice notes in relation to how to practically address discovery. In saying that the new requirements in New Zealand are firmly entrenched within the rules, so they cannot be ignored.
Over the next few posts I will look in further detail at some of the important aspects of what is being proposed in New Zealand, and how they compare to what has happened in other jurisdictions. To begin with, my next post will look at the obligation of ‘cooperation’ and see how this has been introduced in other jurisdictions.
Contact us today if you want to know what the proposed rules could mean for you.