“New Zealand is ahead of us” maybe a commendable headline, but it is important to put Lord Justice Jackson’s comment into context.

Lord Justice Jackson made this comment last week in a speech about ‘Controlling the Costs of Disclosure’. A full copy of the speech is available on the Judiciary of England and Wales website.

Lord Justice Jackson’s comment was in relation to the proposed ‘menu’ option in the UK, where the court would select from a menu of disclosure options for each case, without having a set standard default option. The comments in relation to New Zealand read:

“Interestingly New Zealand is ahead of us here. The New Zealand Rule Committee has recently adopted a variant of the menu option. New Zealand’s High Court Amendment Rules (No. 2) 2011 will come into force on 1st January 2012. These rules provide that in any substantial case the court will not automatically order standard discovery. Instead it will choose between a range of options, including no discovery, standard discovery and “tailored discovery”.”

It is heartening to see Lord Justice Jackson refer to the recent developments in New Zealand when referring to the UK ‘menu’ option. This is besides the obvious error in the date of implementation of the new discovery rules in New Zealand (it is 1 February 2012, for all of the New Zealand readers that have just realised they might have lost a month to prepare).

The majority of us in New Zealand appreciate that we are still a long way behind most other jurisdictions when it comes to addressing electronic discovery. In saying that, the new discovery rules are a step in the right direction.

In constructing the new discovery rules in New Zealand, we followed closely what was happening in the UK in relation to how they addressed similar discovery issues. An essential part of this is the court’s expectation that the parties will seek to agree on a proportionate discovery order to suit the requirements of the case. Instead of mandating an ESI Questionnaire we went down a Discovery Checklist path, which essentially is a toned down version of the UK Practice Direction and ESI Questionnaire.

Lord Justice Jackson’s Cost Review

As a result of the costs of civil litigation being disproportionate and often impeding access to justice, Lord Justice Jackson conducted a Cost Review, releasing his Final Report in December 2009. The terms of reference for the Cost Review included “Establish the effect case management procedures have on costs and consider whether changes in process and/or procedure could bring about more proportionate costs”.

In his speech last week, Lord Justice Jackson outlined the current problem with discovery – which is a similar problem facing most jurisdictions.

“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.”

More importantly what came out of the speech by Lord Justice Jackson were the points he made about electronic disclosure (or electronic ‘discovery’ for all of us in the rest of the world). One of the problems identified by Lord Justice Jackson is that very few solicitors know how to undertake e-discovery effectively. This problem is the same the world over, arguably even more apparent for those in New Zealand who are entering into a completely new landscape as far as the approach to discovery is concerned.

Lord Justice Jackson provided endorsement of some solutions to help the legal profession undertake e-discovery in an effective manner. Notably the points that stood out to me were Lord Justice Jackson’s endorsement of the importance of ‘[the] use of consultants’ and ‘E-discovery training’.

Use of consultants

“Many firms of consultants offer their services in this field. They understand their own software systems, but it is the solicitors and counsel involved who best understand the case. Close and continuing liaison between the legal team and any consultants employed is essential. Disclosure is not an activity which can be outsourced in its entirety to external consultants. No existing software programme is capable of achieving standard discovery.”

For obvious reasons I would advocate Lord Justice Jackson’s recommendation for the use of consultants. The point is that there is help available that can assist lawyers in their management of their discovery obligations. The assistance of specialist consultants can help lawyers maximise the use of technology and implement proven methods for managing electronic information. The use of consultants can save lawyers considerable time and frustration as they can be guided through the technical aspects which lawyers may be unfamiliar with, allowing the lawyers to devote their time to the legal aspects of the case.

Consultants do not replace lawyers, but more work alongside lawyers to help them strengthen their client’s argument by more efficient management of the evidence.

E-discovery training

“Effective training in e-disclosure for judges, counsel and solicitors is essential if PD31B is going to be operated effectively. Such training can be delivered by practitioners who are IT literate and have detailed experience of dealing with e-disclosure successfully at the coalface. They can explain the pitfalls to avoid, the techniques for de-duplication, the new tools which are available etc etc. I attended such a lecture recently at a Continuing Professional Development (“CPD”) day for practitioners. This event illustrated the benefits of a training session dedicated to the nuts and bolts of searching and disclosing electronic material.

If electronic disclosure is tackled in the wrong way or if inappropriate orders are made by the court, huge sums of costs will be thrown away.”

Electronic discovery is much more complex than traditional paper based discovery. If electronic discovery is not conducted properly it can result in many unnecessary costs. To avoid this, it is essential to seek further training, or have available specialised expertise that can navigate you through e-discovery issues.

Training on how to conduct electronic discovery effectively should be on the radar of not only lawyers and barristers, but also the judges as ultimately the judges will have to rule if parties are unable to reach agreement.

A more comprehensive understanding of electronic discovery will be required by lawyers and judges in New Zealand with the proposed case management reforms that are currently being finalised. At the heart of these reforms is the parties working together (with the input of the judge when required), to get to the key issues of the dispute early in the proceeding. It will become more important to use effective electronic discovery methods to assist this process to enable parties to get to the key information to support the key issues in the dispute.

The e-discovery space is an evolving environment as new technology and more efficient methods are developing all of the time. It is important that any training is continuous to keep on top of the changes in electronic discovery.

In all jurisdictions we are faced with similar issues as we all seek to try and manage litigation as quickly, inexpensively and efficiently as possible. We in New Zealand will watch with interest the developments in other jurisdictions to see if there are changes that can help improve the discovery process in New Zealand.

It is always good to receive recognition from a leading judicial figure like Lord Justice Jackson that we are going along the right path, although I think we would all appreciate we still have a long way to go.