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

Go hard, and go even earlier…

March 16th, 2021

Last year I highlighted the importance of going hard and early in how the discovery process is approached.

I mentioned in my post that this sounds obvious, but it is evident that I should articulate that this should be even earlier than most would think.

Again and again, I work with or hear those with the right intentions, that simply leave the practical considerations of discovery far too late.

When I mention more upfront work , this means BEFORE –

  • You consult the discovery checklist;
  • Agreeing the approach with the other side;
  • Collecting data; and definitely before
  • You commence the review of the documents.

I still find on many occasions, we simply see requests like –

“we have just a few thousand documents, can we get these in an electronic format and list”

…and usually followed with something like –

“we need to keep the discovery costs down”

Often the horse has bolted !

It is often too late as the true advantages of smarter ways to approach the discovery process have gone ! Many of the mistakes made in the discovery process are made at an early stage, which can prove very costly later in the proceeding.

The discovery rules provide a framework to approach the discovery process exploring how the practical requirements can be addressed efficiently and cost effectively. However, much of the practical requirements of the discovery process are considered as an afterthought, definitely post the first case management conference and post the discovery order.

Often there is an acceptance on all sides (the Court included) that the process will be time consuming and costly.

It does not have to be this way !

We simply need to turn our mind to the practical discovery requirements, to help target the approach – and much earlier in the process.

As I have said for years, eDiscovery is not expensive – eDiscovery done badly is !

We all know there is so much data out there these days, but much of this information will be irrelevant. The challenge is how to get to only what you need, both efficiently and cost effectively.

Focus on the practical discovery requirements

I advise people to invest an hour at the outset of all matters to consider the best approach. Undertake this well before any of the practical requirements or liaising with the other side has commenced.

If you do need help, or even if you don’t think that you do, but do want to save both time and cost then do reach out. There are usually some ‘easy wins’ where discovery can be more targeted to potentially reduce the time, cost and burden of the process. Many of these easy wins can come from some small incremental changes in your approach.

Feel free to contact me if I may be able to help you to ‘go hard and go even earlier’ !



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