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

Proactive, targeted and earlier

June 18th, 2024

Repeatedly, I encounter many with good intentions who leave practical discovery considerations until it’s too late.

Let’s not tinker around the edges, we need to make real change. We need to be a lot more targeted to just get the information we need. To achieve this means we need to focus on the practical eDiscovery requirements a lot earlier in the matter.

When I stress the need for upfront work, I mean BEFORE:

  • Consulting the discovery checklist
  • Discussing the approach with the other party
  • Gathering data
  • Commencing the document review

However, I often receive requests like: “We have a few thousand documents. Can we get these in electronic format and listed?” Followed by: “We need to minimize discovery costs.”

By then, the window of opportunity for a more effective discovery process has closed! Mistakes made early on can become costly as proceedings progress.

It is not a choice !

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).

This early effort aims to narrow the discovery scope to what truly matters, providing immense value in later stages. All parties involved must address a Discovery Checklist (Schedule 9 of the High Court Rules) and collaborate with others to agree on the discovery’s scope and practical arrangements. This crucial step should occur at least 10 working days before the initial CMC.

Investing time at the outset provides a considerable advantage when negotiating a discovery order with opposing counsel. Parties that plan ahead for discovery are better positioned to shape their case strategy, ensuring a more successful and cost-effective process.

Easy isn’t it, so what is the problem?

Unfortunately, these considerations often emerge as an afterthought, post the initial case management conference and discovery order. Far too often there is a needless acceptance by all parties (and the Court), that discovery will be time-consuming and costly.

But it doesn’t have to be this way!

We all have a part to play, and this includes the Court to be more proactive and hold those to account that are either not complying with their obligations, or not being prepared to be more targeted.

We must focus on practical discovery needs early on to shape our approach. As I’ve long asserted, eDiscovery isn’t expensive—poorly executed eDiscovery is!

Today, vast amounts of data is completely irrelevant. The real challenge lies in efficiently and cost-effectively extracting what’s necessary.

I always recommend dedicating an hour at the outset of any matter to strategize, well before engaging with the other party or tackling the practical needs.

If you need assistance or want a fresh perspective don’t hesitate to reach out. Often, straightforward adjustments can significantly reduce the time, costs, and burdens of discovery.


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