There is a new defined requirement in the proposed New Zealand discovery reforms for parties to make a reasonable search. The obligation to undertake a reasonable search brings NZ into line with the developments in other jurisdictions. As I continue my series of looking at the NZ ediscovery reforms from a global perspective, I will look at how the reasonable search requirements compare with other jurisdictions.
It is no longer reasonable to retrieve every piece of information, or is it reasonable to then review every single document. It is essential that reasonable and proportionate efforts are made as the landscape is continually changing due to the volumes and sources of electronic information. All of these efforts are now governed by cooperating with the other party and coming to an agreement over what really matters in the dispute.
There is a new rule 8.14 – extent of search. This is the new requirement to make a reasonable search for documents within the discovery order. Rule 8.14(2) requires, In making a reasonable search a party may take into account the following:
a) the nature and complexity of the proceeding; and
b) the number of documents involved; and
c) the ease and cost of retrieving a document; and
d) the significance of any document likely to be found; and
e) in the case of electronic documents, subclause (3); and
f) any other relevant matter.
The new obligation here will be for parties to agree as to what comprises a reasonable search. The test of reasonableness will vary from matter to matter and also for the parties. Realistically there is not too much difference with the obligations for electronic documents compared to paper, except of course for the varying sources and volumes of electronic documents. The Discovery Checklist, equips litigants with the framework to seek a tailored discovery order to conduct a reasonable proportionate discovery. The agreement of what a reasonable search requires on each matter will assist in controlling the costs of discovery.
Reasonable Search requirements in other jurisdictions
The NZ reasonable search requirements are virtually identical to those in Australia and the UK. Both Australia (Rule 20.14(3) of the Federal Court Rules), and the UK (Rule 31.7 of the CPR), have the requirement to conduct a reasonable search firmly entrenched within their rules. Practical considerations are developed further in their respective Practice Direction (PD31B) and Practice Note (CM6). The only significant difference is that the UK Practice Direction has added further helpful guidelines to “the ease and expense of retrieval of any particular document”, requirement to clarify the position. This includes:
a) the accessibility of Electronic Documents including e-mail communications on computer systems, servers, back-up systems and other electronic devices or media that may contain such documents taking into account alterations or developments in hardware or software systems used by the disclosing party and/or available to enable access to such documents;
b) the location of relevant Electronic Documents, data, computer systems, servers, back-up systems and other electronic devices or media that may contain such documents;
c) the likelihood of locating relevant data;
d) the cost of recovering any Electronic Documents;
e) the cost of disclosing and providing inspection of any relevant Electronic Documents; and
f) the likelihood that Electronic Documents will be materially altered in the course of recovery, disclosure or inspection;
Similar to the UK and Australia, the methods and strategies for locating documents are outlined in the Discovery Checklist for parties to consider. Parties are expected to discuss these methods as they will not be the same for all matters. It goes without saying that the greater the volume of information, the more the requirement to seek to agree how the searches for information will be carried out. It will become more important for parties to have a better idea on the costs associated with retrieving and searching for discoverable information at an early stage.
Parties should seek to agree with the other party as to what is a reasonable and proportionate search for the matter. These discussions about the methods to conduct the reasonable search need to take place before considerable time and expense is incurred in locating and reviewing documents (as I mentioned in my earlier post in relation to proportionality). If a party can readily assess information at an early stage, they will be in a stronger position when they commence discussions with the other parties.
Readily retrievable archival data
The new rules now expressly limit the extent of the search. Similar to the UK Practice Direction (Para 24), Rule 8.14(3) (unless the discovery order specifies different), states “…the primary source of electronic documents for discovery is normally active data and readily retrievable archival data.” The onus is now on the requesting party to “demonstrate that the need for, and the relevance and materiality of, those documents justify the cost and burden of retrieving and producing that data.”
Whether the definition is ‘Readily retrievable archival data’ or ‘reasonably accessible data’ (as defined in PD31B, Para 24), the duty is the same, as parties must justify that going beyond the primary sources of data is reasonable. The definition of readily ‘retrievable/reasonable accessibility’ could be contentious in some matters. Seeking specialist expertise may be beneficial to assist parties, as they estimate the likely volumes and potential costs. There is still the scope in the Discovery Checklist to discuss these issues with the other parties.
With the new defined obligation of a reasonable and proportionate search, it is even more important that technology is used effectively to help locate the key documents. I will discuss the use of technology in my next post.
Contact us today for further information, or if you want to know what the proposed rules could mean for you.