Sounds a given, or is it?
In fact, it doesn’t always happen this way, and in some instances far from it.
Most firms will be exploring how they can innovate, and a key driver of this innovation will be technology.
The discovery process is no different.
With the volumes and sources of information now present, it makes it impossible to conduct the discovery process efficiently and effectively without the use of technology.
It is a Court Requirement
The courts in New Zealand insist that technology is used efficiently and effectively. Part 8.2 (2) (c) of the High Court Rules states parties must “ensure technology is used efficiently and effectively”.
The rules expect parties to come up with methods to conduct a reasonable and proportionate search for information. To effectively do this it is important to devise the most effective strategy at an early stage.
The courts expect parties to understand both the benefits and any limitations of the approach – e.g. will your potential keyword searches miss information?
This does require the profession to look more closely at how they are using technology. If you are not using technology efficiently and effectively, then the other party or even the Court may insist you do.
Using Technology vs using technology efficiently and effectively
At the same time, there is a distinction between simply using technology and embracing technology efficiently and effectively. This is a distinction that can often be lost, and can cause further complication, burden and ultimately cost.
Too often we see technology used, but it is deployed in a way that just replicates the same practices used when conducting discovery with paper. Scanning documents and then reading every single page (even if on screen) is not using technology efficiently and effectively.
The same can be said of the New Zealand’s Electronic Courts and Tribunals Act 2016, which does no more than replicate how paper documents were managed in court.
In the meantime, I might direct you to the excellent article by David Harvey in the Society for Computers and Law, explaining why he feels it is something of a disappointment and lost opportunity. He concludes by saying –
It does not, as its name might suggest, create or enable fully electronic courts or tribunals. The legislation maintains the model of the paper-based court system and adds a limited form of digital communications in the form of permitted documents. All the legislation does is to imitate paper.
Going back to the discovery process, the objective should be to get only what you need and in a way that is quick and cost effective.
Technology used efficiently and effectively will greatly assist this objective.
