It has now been over 12 months since the new discovery rules commenced in New Zealand, but it is apparent that many may not be realising the full potential of the rules. One observation I have found is there are a number of people that are not managing their information electronically.
Many are still carrying out discovery in the same way as previously in a paper based world.
I have found that some lawyers are just producing the discovery list as they have done previously (usually involving the dreaded dictation), and then just scanning the documents that form part of the list. The only change is that electronic copies are provided, instead of photocopies. If this is the process adopted, then this will add even more cost and burden than the process previously adopted.
Providing documents as PDFs is effectively just providing a photograph of the actual document. This may prevent the receiving party receiving document as held by the producing party.
E-Discovery is not just scanning paper documents
Managing electronic documents in the same way as paper documents will only lead to greater inefficiencies and increased costs. For some, all they are doing is listing documents as they always have and then just scanning documents. This is missing the true effectiveness of the process.
Collecting information in its original native application (e.g. word, excel, outlook), can save considerable cost and complication. Turning documents that already exist in their native electronic application is adding unnecessary steps to the process. The documents could be provided in its native application together with its metadata.
The metadata (data about the information held within electronic files), can then be used to populate the list of documents. This will save the expensive and time consuming exercise of scanning and listing documents. If you have to manually list documents (either from electronic or paper), there are many cheaper options where you can outsource this work (both locally and overseas).
The final discovery is often only 100-200 documents, but to get to these documents can be complicated and costly. It is important to learn how to filter and cull information so documents can be reviewed and produced as efficiently and cost effectively as possible. There are many tools and techniques available to drill down and limit the volume of information.
When you have fewer than 100 documents, you may be able to get away with this approach, but as the document volumes increase that is when the technology used early in the process will be a considerable advantage.
Cooperation and proportionality
The success of the new discovery rules will be down to how parties cooperate over what is proportionate and devising a method to target the important information that is at issue. The rules are designed to establish a framework to assist parties reach agreement on discovery issues in a proportionate and cost effective manner.
It is important to deal with all documents electronically if it is possible. Not only will this save considerable time and money, it is also a more accurate method of finding exactly what you need to fulfil your discovery obligations.
All of these points are without even mentioning the importance of collecting the information in their native electronic applications (which is another post in itself). The benefit of the technology and more modernised practices is how they can be used to help to drill down to the relevant material, and then how beneficial it can also be post the discovery part of the litigation.
Not reviewing electronically
Traditionally lawyers reviewed paper documents and would put flags and notes on documents. This process can be simlified by allowing for the same process on screen. In addition you can also remove all duplicated material and filter irrelevant information from the review.
There is nothing to stop paper based practices, although it is important to appreciate there are more efficient practices, especially with reviewing the information.
Most experts estimate that the document review equates to about 70% of the cost of electronic discovery. One of the problems is that lawyers are ‘reading’ too many documents. With the technology available you no longer have to read every document. The technology needs to be used to allow lawyers to focus on the important documents. Tools like email threading, near duplicates and even predictive coding help the lawyers’ group similar documents together to accelerate the document review exercise. All of these features are not possible with a paper based approach.
Discovery can be challenging, especially due to the increasing volumes of information and new court requirements. The more you can manage information electronically the more efficient the e-discovery process will be.
