The NZ E-Discovery Blog  Facilitating proportionate and efficient e-discovery

Achieving a more efficient discovery process

February 13th, 2011

Andrew King looks at the issues created by electronically generated documents

Today, 90 per cent of all documents are generated electronically. The substantial escalation in the volume of electronic documents has added new, unique challenges to an already expensive and time-consuming discovery process – and if we don’t directly address the issue, the discovery process could become even more drawn out and costly.

The cost and delay of discovery can be reduced by using new methods and by more fully embracing new technology to achieve a more efficient process.

Many have acknowledged the need to reduce the delay and cost of discovery, but so far there have been few concrete suggestions of how we can do this, other than changing the test for discovery. Changing the test may go some way, but it is not solely going to provide a solution.

This article looks at some additional measures worth considering as part of efforts to improve efficiency.

Practice note

There is the need for a practice note dealing specifically with the unique challenges that electronic documents have added to the discovery process. The note’s main focus would be to advise parties to consult with each other early in a proceeding to attempt to best manage the discovery process. The key elements would be:

  • to plan and scope the discovery process, including, in particular, the extent to which parties are obliged to retrieve electronically stored documents; and
  • to formulate a protocol for listing and exchanging discovery documents.

Spending enough time planning each stage of the discovery process from the outset is essential, and can lead to considerable savings down the track and ultimately assist in a more efficient discovery process. It is important to fully understand the importance of decisions that are made at the outset, as they can have costly ramifications later in the discovery exercise.

For a practice note to work, it would require the courts to ensure the parties work together to strive to achieve a more efficient discovery process.

Electronic discovery doesn’t need to be costly or complicated

It is often assumed that electronic discovery is daunting, costly, and complicated. This is far from the case, as the upfront cost of processing documents and producing them into a software package usually only equates to a few hours of a solicitor’s time. The benefits far outweigh the initial cost, by producing considerable savings in costs and time in the review exercise. However, significant expense can occur with ineffective use of technology, or not enough planning of how to best manage the exercise, resulting in a more complicated process.

Currently, due to the lack of consultation between the parties as to a uniform format for listing and exchange, each party often spends a considerable amount of time manipulating the other parties’ documents, post-discovery, into a format that is consistent and workable for them. However, parties do not need to use the same software to list and exchange documents; as long as a protocol has been agreed in advance, then the document exchange should be a seamless process.

Considerable costs can also be reduced if documents are not converted to images. Review software has ‘near native’ viewers, whereby documents can be viewed without the documents having to be opened in their native application (ie Microsoft Word or Outlook). The option of converting the relevant documents to images at the end of the review exercise is still available, instead of incurring the expense of converting what may be irrelevant documents to image format at the outset.

Confusion and cost increases can occur if it is assumed that forensic expertise is required in all cases. There are certain instances when it is (such as fraud investigations), but in many discovery exercises, forensic collection may not be needed. In most discovery exercises, we are primarily looking at the content of the documents, ie what was or wasn’t said, and who said what and when. If the integrity or authenticity of documents is in dispute, then it would be prudent to engage experts to do a thorough analysis. Forensic assistance is one of many important considerations at the outset of a discovery exercise. There should always be a precise method for how the documents are collected.

Reduction in review time

A practice note and better planning alone will not totally reduce the time and cost of discovery, as the time involved for solicitors to review documents is the largest cost of a discovery exercise. This is where more proactively embracing technology to assist lawyers in reviewing documents comes in.

Over more recent years, many lawyers in New Zealand have adopted litigation support databases to assist in the discovery exercise, removing the labour-intensive task of manually collating and listing documents. In the broadest sense, a litigation support database enables a party to keep all of its documents in one central location, while performing document review functions like categorising and commenting on documents. A database also simplifies the process of searching the content of all documents, and the ability to sort documents into any specific order and functionality that is beneficial far beyond the discovery phase.

Even though the current litigation support tools are greatly assisting lawyers, especially when it comes to documents that are predominantly paper, we need to look at options of how we can further use technology to reduce the costs and time of the review exercise. Existing methods are still largely focusing on using the same principles as a paper review, as many still continue to conduct a page-turn exercise, but onscreen instead of paper. There are still improvements to be made to more efficiently use technology to reduce the time it takes to review documents, while delivering higher quality results for the litigation.

New methods

There is now more sophisticated technology available to assist with the discovery review. One of the main problems with a document review is the volume of irrelevant documents or duplicated documents that a solicitor has to review.

New technology has provided methods that can be used to easily isolate the irrelevant documents and focus on getting to the important information more quickly. Filtering parameters need to be applied from the outset to limit the data that is required to be reviewed. When people talk about filtering documents, they often refer to running ‘keyword’ searches. Using keyword searches is not always the safest method of isolating documents, as they are usually devised at the outset before anyone has reviewed documents, and knowledge about the case and evidence is limited. Keywords are only one of numerous options to isolate documents for a review.

The advent of email alone has created more documents than in a paper-based world, as emails are circulated to numerous individuals, often within the same organisation. Documents can be structured in a way that groups similar documents together so reviewers can look at documents of a similar nature at the same time. The ability to identify ‘near duplicates’ and ‘email threading’ are two methods which use mathematical algorithms to group documents based on the content of the documents.

Near duplicates
In most review exercises, the number of documents regarded as near duplicates is considerable. By near duplicate, we mean documents that are essentially the same, with a relatively small volume of changes. By grouping near duplicates, the reviewer can check sets of similar documents together, while focusing solely on the differences between the documents.

Email threading
Email threading is a method that groups together emails so that you can follow through the entire email discussion. The inclusive email – the email that contains all previous emails in the chain – is highlighted, providing the reviewer with the option to solely review the inclusive emails and mark the other emails contained with the thread accordingly. The reconstruction of the thread also allows the review of the individual emails in the context of the thread from which they originated. For the purposes of listing and exchange, the emails contained within the chain/thread are still discovered on their individual level, although they haven’t had to be reviewed separately.

These methods do not completely rely on the software, as the reviewers are still making their own relevancy decisions. By structuring documents in this way, these methods significantly increase the efficiency of a review exercise and can also improve the accuracy and consistency of reviewing.

Overseas jurisdictions have been more fully embracing technology for a number of years to respond to the similar issues of the cost and time of the discovery process, due to the increasing volume of electronic documents. The results show that when these tools are deployed effectively the review time can be reduced by 50 per cent. These new methods will not be relevant for all matters, as the benefits will be more substantial for documents collected electronically as opposed to paper. The importance of endeavouring to collect the documents in their native format cannot be stressed enough when striving to increase efficiency. There can never be a “one size fits all” approach, as each individual matter is different, and we need to be flexible enough in our rules and methods to adapt to these, while exploring the most efficient way of conducting the discovery review.

The cost savings technology can bring will mean it can be used by any sized firm on any sized matter. Smaller firms may get more benefit out of the technology as they strive to distinguish themselves in their quality of work to compete with firms with greater resources. The use of technology is not just for large matters, as using technology on smaller cases can also provide greater cost savings that might not always be apparent at the outset. Often the true benefit is not realised until further in the proceeding when all of the documents are centrally located – which means it is easier to prepare for witness briefs and ultimately trial.


Given the escalating volume of electronic documents continues to alter the discovery landscape, we need to look for more innovative methods to deal with the complexities that brings. The introduction of measures like a practice note will assist, but we need to also look to use new methods and more sophisticated technology to assist in reducing the time and ultimate cost of the discovery process. If managed properly, electronic discovery doesn’t need to be costly or complicated, and proves to be an effective and efficient way of handling a discovery exercise.

Andrew King is the litigation support manager with Bell Gully, experienced in managing the discovery process on a wide range of matters in New Zealand and the UK.

NZLawyer magazine, issue 135, 30 April 2010


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