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

NZ Law Society seminars: Judicial endorsement of new discovery rules

November 1st, 2011

I have spent the last week travelling the country presenting seminars on behalf of the New Zealand Law Society explaining the new discovery reforms. Laura O’Gorman of Buddle Findlay and David Friar of Bell Gully joined me in presenting these sessions, adding valuable legal insight into the new discovery rules.

Judicial endorsement

We were fortunate to have two High Court judges with us in Justice Asher and Justice Fogarty. Their presence was valuable and illustrated the point to the profession that the judiciary are committed to making the new reforms succeed. The judges reinforced the point that the courts are going to take a ‘dim view’ of any party that doesn’t make efforts to comply with the cooperation and proportionality principles of the new rules. Mention was also made about the how the new discovery reforms were also in line with the new case management reforms of trying to get the parties to agree the important issues of a case at an earlier stage. All of which are positive developments, especially the more active role of the judiciary.

We had an excellent turnout at all of our sessions (probably aided by the judicial presence), which is an encouraging sign that the legal profession are interested in what the new discovery rules will mean for them. We presented our sessions in all of the main centres in New Zealand, and then conducted webinars that went out to all of the smaller regions.

I have often said that what is missing in New Zealand is the lack of awareness, or available education when it comes to efficiently and effectively approaching electronic discovery issues. As well as detailing the new discovery rules, the Law Society sessions provided those attending with valuable insight into how they can approach discovery exercises more cost effectively and proportionately. I reinforced the point during the sessions, that it is often the out-dated practices of lawfirms that are largely contributing to the increased costs and frustrations with discovery. These issues are largely down to paper based methods being used to deal with new issues caused by the growth of electronic information – it is no longer possible for lawyers to ‘eye-ball’ every single document.

The feedback from the sessions has been excellent. We had considerable questions from the audiences at all of the seminars, as they look to find out more detail about what the reforms will mean for them. Most of the questions from the sessions were proactive as many see the considerable benefit of more proportionate and cost effective discovery. Many were impressed with some of the new methods and technology that is available to assist them and make their role in the discovery process easier.

One common question that did keep coming up was ‘what technology do I need to comply?’ As I mentioned in my last article, there is no right answer to this question. I think some people want me to give them the name of a product and they can simply walk away and buy it. Every solution is different, as they all have different strengths and weaknesses. Some firms may have specialised requirements and with that each individual matter may also be different.  As I stressed during the sessions, it is important to get independent advice on what technology solutions are right for you – seek the advice prior to purchasing a solution that might not be right for you.

I am still running my training sessions on the practical requirements of the new discovery rules. These may be beneficial for those that were unable to attend the sessions last week, or for those that want to find out more about what the new rules will mean for them, and more importantly what they need to do to comply. I have had a number of questions at the end of the Law Society sessions where firms have asked me to come along and see them to help them assess what they will need to do to be ready to comply with the new rules. Some firms prefer to discuss their own requirements, without having their competitor sitting over their shoulder. For some the new rules could present substantial changes, although I am sure with a bit of initial assistance they can quickly be on the right track come commencement day on 1 February 2012.



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