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

NZ E-Discovery reform – a global context: #1 – Early cooperation at the heart of discovery reforms

August 9th, 2011

Continuing my series of looking further into the NZ e-discovery reforms, today I look further at the requirement for parties to cooperate, and compare to reforms in other jurisdictions. All jurisdictions are faced with similar issues of increasing burden and cost associated with discovery, but all still have the same obligations to identify, preserve, review and produce information.

The new obligation for parties to cooperate at an early stage is fundamental to the proposed New Zealand discovery reforms as parties look to take a proportionate approach to discovery. Rule 8.2 outlines the new cooperation obligations for parties:

(1) The parties must cooperate to ensure that the processes of discovery and inspection are—

(a) proportionate to the subject matter of the proceeding; and

(b) facilitated by agreement on practical arrangements.

(2) The parties must, when appropriate—

(a) consider options to reduce the scope and burden of discovery; and

(b) achieve reciprocity in the electronic format and processes of discovery and inspection; and

(c) ensure technology is used efficiently and effectively; and

(d) employ a format compatible with the subsequent preparation of an electronic bundle of documents for use at trial.

Cooperation – what does it actually mean?

Often lawyers are sceptical about how cooperation can work in practice, especially to litigators where cooperating with the other side is far from familiar practice in the adversarial litigation culture.

I thought Leonard Deutchman hit the nail on the head in a recent article – “Mention ‘cooperation between parties’ to a group of litigators and you usually get facetious exhortations to hold hands and sing ‘Kumbaya’ or ‘We Are the World’.”

Cooperation can work in e-discovery, or at least should be explored. The cooperation is over the practical logistics/arrangements, which still allow litigators free to “fight” it out over the facts of the dispute. Realistically, early cooperation is probably the only way to take a proportionate approach to reduce the volume of information, therefore reducing the costs associated with discovery in litigation.

The Sedona Conference® Cooperation Proclamation

I have always found The Sedona Conference® Cooperation Proclamation (introduced by the Sedona Conference® in 2008), to be a good precedent in understanding cooperation in discovery. The goal of the proclamation is – a coordinated effort to promote cooperation by all parties to the discovery process to achieve the goal of a “just, speedy, and inexpensive determination of every action.” This is consistent with the overriding objective of the NZ High Court Rules at Rule 1.2, notably “just, speedy, and inexpensive determination of any proceeding”. The proclamation identified the following methods that may accomplish this cooperation:

  1. Utilizinginternal ESI discovery “point persons” to assist counsel in preparing requests and responses;
  2. Exchanging information on relevant data sources, including those not being searched, or
    scheduling early disclosures on the topic of Electronically Stored Information;
  3. Jointly developing automated search and retrieval methodologies to cull relevant information;
  4. Promoting early identification of form or forms of production;
  5. Developing case-long discovery budgets based on proportionality principles; and
  6. Considering court-appointed experts, volunteer mediators, or formal ADR programs to resolve discovery disputes.

As mentioned in the proclamation, the culture shift will not happen overnight, and as we have seen in New Zealand as well as other jurisdictions the discovery reforms are establishing frameworks to facilitate greater cooperation.

What does cooperation involve in other jurisdictions?

The reforms in the UK and Australia have been facilitated by the introduction of questionnaires and checklists which assist parties to undertake discovery proportionately and cost effectively. The principles deeply entrench the obligation of cooperation.

Practice Direction 31B – Disclosure of Electronic Documents (PD31B) in the UK, establishes a framework for parties to commence cooperation at an early stage to agree the scope of disclosure. After the scope has been agreed, parties are expected to cooperate further on the logistical issues in the disclosure process. PD31B, together with the introduction of the Electronic Documents Questionnaire facilitates a ‘cards on the table’ approach as parties are more informed when they conduct discussions about a proportionate approach to disclosure.

In New Zealand, we have watched and communicated with members of the UK working party and especially Senior Master Whitaker and Chris Dale of The e-Disclosure Information Project, who both provided significant guidance as we navigated through similar issues as we looked to get the NZ reforms over the line.

Cooperation requirements are often facilitated through what is commonly known as a ‘meet and confer’. I draw your attention to the US, where the Federal Rules of Civil Procedure, Rule 26(f) (and Rule 16(b)) require parties to attend a conference to discuss the issues relating to how discovery will be conducted.

In Australia, the ‘meet and confer’ requirement is contained within the Federal Court Practice Note CM6 – Electronic Technology in Litigation Practice Note (CM6), as The Court expects the parties to meet and confer for the purpose of reaching an agreement about the protocols to be used for the electronic exchange of documents and other issues relating to efficient document management in a proceeding.

A significant proportion of the cooperation requirement in CM6 surrounds how technology should be used. I will elaborate further in an upcoming post when I look into how the New Zealand reforms ensure technology is used efficiently and effectively.

Working with Australian law firms, the prevailing impression is that parties are mainly only cooperating on the logistics of the Document Management Protocol (contained within CM6). It appears parties do not cooperate enough at an early stage over the scope of the discovery order and also methods to conduct the search for documents.

I know from speaking with many practitioners in NZ (through sessions that I provide to ensure law firms are best equipped for all of the new reforms), too many are solely focussing on the new requirements in the listing and exchange protocol. The objectives of reducing the burden and cost of discovery will only be achieved by parties proactively addressing the Discovery Checklist at an early stage to facilitate them approaching discovery proportionately. There is not an expressed obligation to ‘meet and confer’, but the Discovery Checklist (which has to be addressed for all matters), specifically states that parties must discuss with the other parties. On the smaller matters, the discussions may well just involve a phone call or email to the other party.

As we have seen in other jurisdictions, early cooperation is at the heart of discovery reforms.This inevitably brings us onto the subject of proportionality, which I will tackle in my next post. I will also explore in upcoming posts as to the specific aspects of the discovery process the parties will be expected to cooperate over.


Contact us today for further information, or if you want to know what the proposed rules could mean for you.



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