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

New discovery rules – being more informed at an earlier stage

January 20th, 2012

We are now only a couple of weeks away from the new discovery rules commencing in New Zealand on the 1st of February. Currently I am busy assisting firms prepare to comply with the new requirements. One point I have been highlighting is those parties that are more informed about their information at an earlier stage, will be in a better position to conduct discovery under the new rules..

Prior to Christmas, I wrote an article in the NZ Lawyer Magazine entitled “What will the new discovery rules mean for in-house counsel?” (A link to the article can be found here). In addition to outling the key changes of the new discovery rules, the article raised some important points that will help prepare in-house counsel (and firms in general) to ensure they can quickly and efficiently comply with the new discovery rules. The true efficiencies will be the work that can be conducted early in the discovery process to be able to be more proportionate to the requirements of the matter.

Parties are now expected to:

  • Identify who are the key individuals in the dispute;
  • Identify what you have and where it is located;
  • What is important to the matter in dispute; and
  • How this information can be provided in a method that is accurate, efficient, and cost-effective.

I outlined the importance of moving away from traditional methods to help reduce the legal spend on the discovery process. Technology, if deployed effectively can significantly assist the legal team with their job. Moving away from paper based methods and investigating the option of outsourcing non legal work will help ensure a more efficient and cost effective discovery process.

Often the questions asked with discovery are What do we have? and How do we find what we need to meet our discovery obligations? These questions are now more complex due to the escalating amounts of electronic information that organisations now have. If this information is difficult to identify then the cost of locating and retrieving the information will continue to escalate. By being more informed at an earlier stage will assist parties in estimating the likely costs involved in discovering their information.

Over the past couple of months I have been approached by many in-house lawyers and organisations directly to assist them manage their information more efficiently. At the same time I have also been engaged by law firms that want assistance in advising their clients on the best methods to manage information so they can easily comply with the new discovery rules, whilst also doing so proportionately and cost effectively.

Too often e-discovery (like too many things in life), is thought as an ambulance at the bottom of the cliff response. This approach is contributing to additional cost, which could be minimised if there was more stringent information management at the source.

As I concluded in the article, “those that can do more work at the outset of a discovery exercise will not only easily comply with the new discovery rules but also be able to conduct discovery more effectively and accurately to help further their case”.



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