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

Go hard, go early…

November 18th, 2020

Just as with New Zealand’s exceptional response to COVID-19 (to date…), ‘go hard, go early’ also applies to eDiscovery.

As I often say, eDiscovery is not expensive – eDiscovery done badly is !

To do this we need to turn our mind to the practical discovery requirements, much earlier in the process.

With the today’s data volumes, together with the court requirements it is important to be smarter in how discovery is approached. This requires considerably more work earlier in the discovery process to prevent the cost and burden spiraling out of control. The time invested at the outset could save thousands down the track, not to mention lessening the burden for you and your firm.

This sounds obvious, but in practice many of the practical requirements are often considered far too late in the process.

It should not be this way !

Discovery rules require upfront work

The New Zealand High Court discovery rules (which commenced in February 2012 – yes back in 2012…) require considerably more work in advance of the first case management conference (CMC).

The front loading of work is designed to assist in limiting the scope of discovery to what really matters and provide considerable value later in the discovery process.

On all matter’s parties must address a Discovery Checklist (Schedule 9 of the High Court Rules) and discuss with the other parties to agree the scope and practical arrangements for conducting discovery. This is required to happen at least 10 working days prior to the first CMC.

The time invested at an early stage will provide a considerable advantage prior to agreeing a discovery order with opposing counsel. Parties that invest time in planning for discovery will be in a more informed position to develop their overall case strategy, ensuring a more successful and cost-effective discovery process.

Short term pain, long term gain

Far too often, many of the mistakes made in the discovery process are made at an early stage, which can prove very costly later in the proceeding.

There are usually some ‘easy wins’ that can save you and your client considerable time and money. Sometimes these easy wins can come from some small incremental changes in your approach.

If you do find the discovery process expensive, complicated and time consuming, then it is at the very least worth investing an hour at the outset of the matter to consider the best way to approach the exercise. Even on the smallest of matters, investing an hour can provide considerable value as the matter progresses.

Just as New Zealand has gone hard and early with its COVID-19 response, allowing longer term benefits, think about doing the same on your next discovery matter. If undertaken successfully this upfront work will provide significant benefits and a tactical advantage for you and your client as the matter progresses.

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

 

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