I continue my ‘mission’ to try and raise the awareness of the new discovery rules, with the commencement just around the corner on 1 February 2012. The Law Society helpfully published an article of mine in their Law Talk magazine last week entitled “Promoting the new discovery rules”. A link to the full article can be found here.
In addition to summarising the New Zealand Law Society seminars (that we presented to the legal profession last month), the article also provides a concise summary of the key changes to the new rules:
Cooperation and proportionality – Parties must cooperate on all matters to ensure that discovery is proportionate and facilitated by agreement on the practical arrangements.
Preservation – As soon as litigation is contemplated, prospective parties must take all reasonable steps to preserve documents that are reasonably likely to be discoverable.
Initial disclosure – Parties must make an initial disclosure of all documents referred to in a pleading or used when preparing the pleading. The documents will be provided when the pleading is served.
Standard or tailored discovery orders – Standard discovery will involve a narrower directly relevant test rather than the current broad “train of inquiry” approach. Standard discovery will involve all documents on which a party relies, or which adversely affect that party’s own case or another party’s case, or support another party’s case. Tailored discovery requires discovery orders tailored to the requirements of the case.
Discovery checklist – Parties must address and then discuss with each other the items in a discovery checklist on all matters. The checklist will establish a framework to assess a proportionate and reasonable search for documents.
Listing and exchange protocol – The listing and exchange of all documents will be conducted electronically. Parties are encouraged to modify the default listing and exchange protocol if it is proportionate to do so.
Preparing firms for the new reforms
Since the Law Society seminars, I have been busy preparing firms for what the new discovery rules will mean for them. Some firms now appreciate that they will have to make substantial changes to their current practice, whilst others just need the odd tweak to their current processes to ensure they comply. My involvement providing information on the new rules, has ranged from formal training through to just providing general advice of the options available.
One worry that some firms do have, is that they are realising how close the 1 February 2012 commencement date is. This allows even shorter time for the many firms that shut down for three weeks over the Christmas/New Year period. This leaves very little time for the firms that may need to make substantial changes to their current practice. No doubt, those that will be in the best position come 1 February 2012, will be the ones that have made arrangements to ensure the new requirements are as seamless as possible.
On a positive note, I have met a couple of firms that are already making the necessary arrangements to ensure they can comply proportionately with their discovery obligations. They are looking at how they can go beyond simply providing documents in an electronic format (which worryingly far too many still think is the only new requirement), and looking more at how they can quickly assess what is proportionate, enabling them to have an informed discussion with the other party.
I have come across one firm that is currently actively engaging with the other side at the moment to discuss a proportionate discovery order – even before the new discovery rules come into force! They engaged me to assess what a proportionate discovery order may be, by assisting them to identify what documents their client had (which was a lot more than they thought with the volume of electronic information), where they were located and what was the likely cost of discovering that information, including the cost of the review (which they hadn’t initially appreciated). The firm is now discussing with the other party the tailored discovery order, by trying to focus on the main issues and key individuals in the matter. Obviously this firm will be one step ahead of their peers, once they have to comply with the new discovery rules.
It is refreshing to see firms being proactive like this, as ultimately I try to provide options to law firms and organisations, which can simplify their discovery process – well at least making their job easier.
Like many, I am looking forward to seeing how the new discovery rules actually work in practice. The success will be influenced by how proactive parties will be in isolating the important issues and then the key evidence in the dispute – and communicating this with the other side.
