This week His Honour Judge David Harvey has written an article which summarises New Zealand’s New Discovery Rules and also provides a practical insight of how technology can be used through the discovery process. The article called New Zealand’s New Discovery Rules and Electronic Discovery was published by the Society for Computers and Law (from the UK) and written together with Daniel Garrie of Law and Forensics LLC.
The new discovery rules establish a framework to assist parties to reach agreement on discovery issues in a proportionate and cost effective manner. Lawyers are now expected to be more informed about electronic discovery issues at an earlier stage, to be able to commence a dialogue with the other party about what is proportionate to the matter.
The comments by a judicial figure like Judge Harvey are very much welcome to help provide more guidance about what the discovery rules mean and how they should be approached. Electronic information cannot be ignored, neither can the steps of the checklist that require parties to seek to reach agreement on the methods and strategies to get to the information that is relevant to the matter.
The article is an excellent summary of the new rules as it walks through the requirements of the new rules in a sequential manner, providing practical insight of where technology can be utilised at various stages to reduce the burden and cost of the discovery process.
I won’t cover all of the very helpful information from the article, as I have commented on most previously. What I will do though is highlight the point Judge Harvey makes about “the technology must be used efficiently and effectively to enable a more proportionate and cost effective discovery process.” Technology is an option that is available to help parties and their lawyers navigate through the new electronic information landscape. The key points I took from the conclusion are as follows –
Greater awareness is required by lawyers and Judges of the technologies. “One thing is clear and it is that lawyers and Judges are going to have to become intimately aware of the technologies that are available and of the technological processes that can underlay the discovery process if the advantages of cost reduction and proportionality that underlie the rules are to be achieved.”
Technology can be a solution to all aspects of the discovery exercise – not just the end point. “It may assist the parties in every aspect of the process from the identification of information through to its presentation in the court room. However the main advantage that may be seen as the cost benefits that it can bring at the initial stages.”
If firms do not have the necessary resource or tools then assistance is available to help conduct discovery. “Service providers or the specialist assistance referred to in the checklist may therefore assist with the discovery process. For law firms this will reduce any potential costs or infrastructure rearrangements that may be necessary.”
In addition to the many blog posts and articles that I have had published, the commentary by Judge Harvey provides further valuable insight into how the framework of the new rules can be used to achieve a more proportionate and cost effective discovery process.
The article in its entirety is a must read for anyone conducting discovery in New Zealand.
