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

E-Discovery presents challenges and requires new skills

November 28th, 2012

Electronic discovery has often been a process that is unfamiliar to many involved in litigation. E-discovery requires new skills and a greater appreciation of technology than was previously required in a traditional paper dominated discovery world.

In today’s digital world the increasing sources and volumes of electronic information is making the discovery process more challenging. There is now a greater intersection between the law and technology with e-discovery now an important consideration for anyone involved in litigation.

E-Discovery is not just turning documents into an electronic format

As I have mentioned in previous posts, I continue to push the message that ‘’electronic discovery’’ is NOT solely turning documents into an electronic format. Managing electronic documents in the same way as we did paper documents will only lead to greater inefficiencies and increased costs.

Unless legal professionals are more informed about the electronic discovery process, it can be complicated, time consuming and costly. Technology is constantly evolving as are the tools and practices to carry out electronic discovery efficiently and cost effectively. It is important for those involved in litigation to have a greater understanding of the tools and practices that are available.

“It was a lot simpler in a paper based world”

Yes it was simpler, although the reality is that we no longer live in this world. All matters that go through the Courts or any regulatory investigation has increasing volumes of electronic information.

This means that all matters have e-discovery considerations, with some more complex than others. I rarely come across a matter with no electronic information and if I do it is usually because a party has decided to turn electronic information into a paper format. In doing so that party has lost any advantage they had by having all the information in an electronic format, not to mention the additional cost and burden they will face to comply with their legal obligations.

Few solicitors know how to undertake e-discovery effectively

Before discovery can be tackled proportionately and cost effectively it is important to have a handle on the evolving issues with electronic discovery. Many lawyers need to prepare and educate themselves more about how to manage electronic discovery effectively.

In a speech in the UK about Controlling the Cost of Disclosure, Lord Justice Jackson made the following observation about the problems with disclosure (discovery) –

Even in medium sized actions where all the documents are in paper form, disclosure can be a major exercise which generates disproportionate costs. It can also result in a formidable bundle, most of which is never looked at during the trial. In larger actions where the relevant documents are electronic, the problem is multiplied many times over. That problem is accentuated because relatively few solicitors and even fewer barristers really understand how to undertake e-disclosure in an effective way.

This problem is very evident in New Zealand, where many are new to the new challenging issues of e-discovery.

New Court expectations with new discovery rules

Since the new discovery rules were introduced in February 2012, the Court now requires that the cost of discovery be proportionate to what’s at issue. To be able to assess this new discovery rules expect parties to be better prepared and informed about the issues of the electronic discovery process.

The Court now expects the parties to know more about their information at an earlier stage to enable them to assess proportionality on all matters – this will involve making decisions that can be quite challenging due to the volumes and sources of electronic information, together with the complexities of this information. The problem with electronic information is the not knowing, as many parties do not know what information they have, or where it is (let alone how they with retrieve that information). It is not possible to make an informed assessment about proportionality, unless there is a greater understanding of electronic discovery issues.

The new discovery rules require parties to “ensure technology is used effectively and efficiently”. To achieve this it is important to know the benefits and risks of the technology. If those involved in discovery exercises do not have this knowledge then they should have access to someone with the expertise to equp them with this information and guidance.

These points may be going over old ground, but it is important to continue to reinforce these points.

E-discovery does present many with new challenges and requires new skills from what many have been accustomed to. Obtaining a greater understanding of the e-discovery process, will provide a significant advantage in tackling your next e-discovery exercise.


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