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

New discovery rules commence 1 Feb 2012

October 6th, 2011

The new NZ discovery rules have been passed and will commence on 1 February 2012. The rules were passed this week and were today published on the New Zealand Legislation website.

The new rules substantially change the way that discovery will have to be conducted. The reforms modernise discovery rules in an attempt to curb the escalating cost and delay that discovery is contributing to the litigation process. The discovery landscape has changed considerably over the last number of years, but the rules governing discovery have not. The exponential growth in the volume and sources of electronic information has made existing discovery rules obsolete and has contributed even further cost and complexity. For too long New Zealand has lagged behind other jurisdictions in relation to how we address discovery. These new rules mean we are starting to catch up, as we now have a framework to ensure that discovery can be more proportionate to the dispute.

What are the changes?

My recent series of articles has looked in detail into the most important aspects of the new discovery rules. To recap, the key changes of the new rules include –

  • Proportionality and cooperation
  • Preservation of documents
  • Reasonable Search
  • Initial disclosure
  • Standard discovery or tailored discovery
  • Discovery checklist
  • Listing and exchange protocol

More details of the new requirements can be found in my later blog posts. The rules and the new Discovery Checklist and the Listing and Exchange Protocol are contained on a dedicated page on my website.

Proportionality is the key driver to the changes

Entrenched in the new rules is an expressed obligation for parties to cooperate. Parties are expected to cooperate on all practical arrangements to ensure that discovery is proportionate to the proceeding. The introduction of the Discovery Checklist should install a framework to facilitate this process. The Discovery Checklist (which must be addressed on all matters), walks parties through the issues requiring considerations to conduct discovery more efficiently and proportionately.

To be able to effectively address the Discovery Checklist, it will be more important now for lawyers to be better informed about their client’s documents at an earlier stage. Lawyers now have an expressed obligation to discuss all the sources and volumes of documents. However, you cannot assess what is proportionate until you know more about what you have, where it is, and what are the likely costs of discovering it. The growth in the volumes and potential sources of electronic information has added more challenges to this assessment. Parties that are more informed about their client’s documents at earlier stage, will a clearer idea about the merits of the case. They will also be in a stronger position when they commence discussions with the other parties about the most proportionate methods to conduct discovery.

Only by the parties cooperating over what is proportionate, will the real costs of discovery be able to be controlled.

The new discovery rules are a significant step in the right direction to achieving a more proportionate and cost effective discovery process. However, the new rules alone will not solve all the problems associated with the discovery process. Current practice will also need to change, as many are continuing to use out-dated practices to respond to new issues posed by the increasing volumes of electronic information. For too long there has been a high reliance on paper based systems, inherent in the rules and also within legal practice. These paper based practices do not take into account the advancement and availability of technology solutions that can assist lawyers with their discovery obligations.

The new Discovery Checklist, (at the very least) should provide an opportunity for parties to ‘stop and think’ about more efficient methods to conduct discovery.

Training Sessions

To assist the profession understand what the new discovery rules will mean for them, I have established dedicated training sessions on the new discovery rules. Details of the sessions are available here. These sessions can be tailored to suit the requirements of the firm or organisation, so you can find out what you need to know and what you need to do.  These sessions will help firms ensure they are equipped and prepared to comply with the new discovery rules.

The new rules do add substantial changes to the way discovery is conducted, but we are here to help you become familiar with your new requirements.

 

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