A discovery checklist was introduced as part of the new discovery rules that came into force in New Zealand in February 2012. Parties must now address a discovery checklist on all matters and then discuss the issues raised with the other parties to agree the scope and practical arrangements for conducting discovery.
The checklist provides a very useful roadmap to assist parties to co-operate over how discovery will be conducted. The checklist establishes a framework to assess a proportionate and reasonable search for documents tailored to suit the requirements of each matter. All of these discussions must take place prior to the first case management conference.
Being more informed at an earlier stage
The introduction of the checklist brings with it the requirement for more up front work, and at an earlier stage. Parties are now expected to assess and then discuss with the other parties on all matters to determine if a standard or tailored discovery order will be proportionate.
Parties are now expected to –
- Identify who are the key individuals in the dispute;
- Identify what you have and where it is located;
- What is important to the matter in dispute; and
- How this information can be provided in a method that is accurate, efficient, and cost-effective.
To accurately assess what a proportionate approach is it is important to have further information about these issues. To effectively address all of the requirements of the checklist, it will be more important to be better informed about your documents at an earlier stage.
The benefit of an E-Discovery Questionnaire
Working through an eDiscovery questionnaire or checklist can be beneficial to understand more about the information held by your clients.
I frequently prepare an E-Discovery Questionnaire that can be worked through with the client (in particular their IT) to understand what information they have. The information gathered is then articulated back to the legal team in ‘plain english’, so they are fully aware of their clients’ information. Any potential issues (e.g. former employees, obsolete programs), can be considered as well as the potential costs associated with discovering the information.
Obtaining this information at an early stage helps in working through the scope of discovery with opposing counsel. The dialogue with the client also assists in explaining exactly what the process involves and what you are after, as well as understanding the most effective method to collect the information.
Are parties informed enough to fully embracing the checklist?
From my observations it is clear that some parties are not going through the checklist in the level that they are required to do. These observations were highlighted recently at the EDT lunch forums (which were held throughout New Zealand), where it was clear that parties were not addressing all of the requirements of the checklist.
In practice often what is happening is parties solely look to agree propose standard or tailored discovery, without addressing the full requirements of the checklist. Parties are seldom providing information around the volumes of information and associated costs or the details of how they will search and review information.
It is beneficial to enter into a dialogue with the other parties well in advance of the case management conference. This dialogue (whether it be a phone call, correspondence or a meeting), will not only seek to agree the discovery order, but also the approach as to the methods for carrying out the exercise. This approach should also outline the methods and strategies for locating documents. Parties are required to seek agreement on what methods and strategies are appropriate to conduct a reasonable and proportionate search for the documents. These include (but not limited to) the following –
a) Appropriate key word searches;
b) Other automated searches and techniques for culling documents including concept searching, clustering technology, document prioritisation technology (predictive coding), email threading, and any other new tool or technique; and
c) A method to be used to identify duplicate documents; and
d) Where the specialist assistance is required to locate documents efficiently and accurately.
With whatever approach is agreed upon it is important to understand if the approach is suitable for the matter at hand. I have written previously about some of the issues with key word searching due to its limitations and also not enough time going into the preparation of the search terms.
The checklist allows the modification of the listing and exchange protocol
Many parties are unaware of the flexibility in the rules to modify the format for listing and exchanging documents. This is outlined within the discovery checklist, where parties are required to consider whether the listing and exchange protocol is appropriate and seek to agree any modifications.
Often parties go too early to the ‘listing and exchange protocol’ without enough focus on the framework (and flexibility) of the checklist, where the real focus should be on how counsel and their clients can get to the important information, quickly and effectively. Just because the rules have a default listing and exchange format, it does not mean parties cannot agree a format that suits the requirements of the matter. On some matters the default position may add considerable burden that may not be proportionate for the matter.
The checklist itself highlights ways to reduce some of the listing and exchange costs -
“to reduce unnecessary costs of listing documents parties are encouraged to:
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 those images if they are to be produced for discovery.”
The more work that counsel and their clients do up front, the more informed they will be about what information they have, where it is and the cost of discovering it. Being in an informed position will assist parties address the discovery checklist, and work toward agreeing an appropriate discovery order in advance of the case management conference. Once a discovery order has been agreed it is still important to continue to cooperate with the other side to work through the discovery checklist to ensure discovery is proportionate and reasonable.