The final draft rules of the New Zealand discovery reform have been published by the Rules Committee. The profession are being asked to raise any specific drafting issues by 10 August 2011, with the anticipation that the new rules will come into force in early 2012. The rules can be found on the Courts of New Zealand website.
Main changes since the initial consultation
The draft rules have been revised since they were circulated to the profession for consultation in December last year. The significant changes are:
- Tailored Discovery – The non-standard has been amended to ‘Tailored Discovery’, where parties will cooperate to devise an appropriate discovery order to suit the specific requirements of the dispute.
- Preservation of documents – obligation to preserve documents elevated to the rules from the checklist.
- Extent of Search – more detailed requirements requiring parties to undertake a reasonable search for documents within the discovery order.
Key changes to new rules
The Explanatory note attached to the end of the final draft rules summarises in further detail the most important changes. The key changes that I have identified are the following:
- Cooperation between parties at an early stage to discuss the methods they are going to use to conduct a reasonable search that is proportionate to the proceeding.
- Standard discovery is a narrower “adverse” relevance test than the existing Peruvian Guano test.
- Tailored discovery for matters where standard discovery would be disproportionate.
- The introduction of a Discovery checklist and a default Listing and Exchange Protocol to facilitate the cooperation of the practical arrangements.
Background to New Zealand discovery reforms
Like other jurisdictions, New Zealand faces similar issues with the cost and burden of discovery. These growing concerns have escalated in the last number of years with the exponential growth of the volume and sources of electronic information. Due to the changing e-discovery landscape, the existing discovery rules were no longer appropriate to achieve the overriding principle of the rules – “just, speedy, and inexpensive determination of any proceeding”. It was essential that we modernised our rules governing discovery to achieve the overriding objective.
As a member of the discovery working group formulating these rules, I know it has been a long process as we have looked with interest with the significant recent developments in other jurisdictions like the United Kingdom and Australia (I will comment further on the global context of discovery reform in an upcoming blog post). New Zealand is starting to follow these reforms by recognising the need to start addressing discovery more proportionately in the digital age. 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 electronic discovery.
It is important to note that as has been witnessed in other common law jurisdictions that solely changing the relevance test to an “adverse documents” test has not solely addressed all of the concerns with making discovery more cost-effective. We have seen the cost and complexities have continued to increase, largely due to the complexities caused by the exponential growth of volume and sources of electronic documents. This has largely been the justification for looking to devise more proportionate methods to supplement the rules to practically address these concerns.
It is envisaged that through greater judicial involvement, parties will cooperate on discovery issues to take a proportionate approach to discovery, and identifying what really matters. The introduction of the Discovery checklist should install a framework to facilitate this process.
Cooperation and proportionality
The obligation for parties to cooperate at an early stage is fundamental to the new reforms as parties look to take a proportionate approach to discovery. Rule 8.2 outlines the new cooperation obligations for parties:
(1) The parties must cooperate to ensure that the processes of discovery and inspection are—
(a) proportionate to the subject matter of the proceeding; and
(b) facilitated by agreement on practical arrangements.
(2) The parties must, when appropriate—
(a) consider options to reduce the scope and burden of discovery; and
(b) achieve reciprocity in the electronic format and processes of discovery and inspection; and
(c) ensure technology is used efficiently and effectively; and
(d) employ a format compatible with the subsequent preparation of an electronic bundle of documents for use at trial.
The cooperation is facilitated through the introduction of a Discovery checklist that guides parties through the practical considerations that they must make through conducting discovery. The Discovery checklist identifies considerations that should be discussed with the other parties prior to commencing discovery and then continued through the discovery process. Part of these considerations include identifying the sources and volume of documents and discussing these with the other parties to consider what discovery order is proportionate.
The final draft rules provides for a greater framework for parties to tailor a discovery order to suit the specific issues of the case. Parties will generally see more efficiencies if they are able to agree a tailored discovery order that identifies the methods required to get to the documents that are the most important in the dispute. Parties are free to negotiate their own practical methods to conduct discovery, as the Listing and Exchange Protocol is a default position that parties will be encouraged to modify to suit the specific interests of the particular dispute. From past experience we all know that not every case is exactly the same, but the Discovery checklist at least provides a framework that can be considered on all matters.
I am often asked whether the new rules will add further burden to smaller matters. They shouldn’t, as for small matter that are less complex, the issues in the Discovery checklist will be able to be moved through relatively quickly. My article earlier this year summarised further the requirements of the Discovery checklist and the Listing and Exchange Protocol, and focussing on addressing discovery proportionately.
The new framework should facilitate giving parties the opportunity to manage discovery proportionately, cost-effectively and efficiently. As we have seen by the discovery reforms in other jurisdictions, the final draft rules is evidence that New Zealand is starting to move in the right direction!
I will provide further information as it comes to hand of developments with the New Zealand discovery reform. Check back with this blog frequently to see the latest information and further commentary. Alternatively follow my posts on twitter and linkedin.
Contact us today for further information, or if you want to know what the proposed rules could mean for you.