Too often the claim of “proportionality” is an easy ‘out’ to evade potential discovery obligations. Common justifications include:
- Overwhelming number of documents
- Too much work required
- Claiming costs are disproportionate
- Relying on the court to accept the claim of proportionality
While these points might hold merit, substantiating the proportionality argument becomes crucial, as discovery costs can quickly spiral out of proportion to the needs of the case.
However, claiming discovery obligations are disproportionate doesn’t justify considering ineffective methods to find relevant information. These costs might indeed be disproportionate but they could involve needless costs that could be reduced by exploring more appropriate methods.
The objective of the discovery process should be getting to what you need in a way that is quick and cost-effective. To achieve this, exploring all potential methods and strategies becomes imperative.
Proportionality does not mean cutting corners.
Where to begin?
In New Zealand, the discovery checklist serves as a framework for parties to collaborate on a proportional and reasonable search for documents tailored to the case. It initially requires parties to discuss whether estimated costs align with the case’s value.
This is not what happens in practice though.
Often when I ask, “what came out when you addressed the Discovery Checklist”, the response is too frequently either “What Checklist”, or “we decided for Tailored Discovery”. Ironically, this is at the same time as frustration is expressed over the cost of discovery (and discovery generally).
To effectively address the requirements of the checklist, it is important to be informed about your documents at an earlier stage. This work earlier in the process will save considerable time and cost later in the matter.
It is important at an early stage to develop a proportionate discovery order that focuses the discovery process on finding and producing the information that matters most. These discussions should take place at the outset of a matter and before any considerable work and cost has been incurred.
Even after agreeing on a discovery order, discussing practical arrangements with the other party remain crucial to ensure continued proportionate and reasonable discovery. Much of the practical work and costs arise after the discovery order is in place.
Helping you substantiate your argument
Over recent years I have been assisting more organisations in substantiating proportionality arguments.
Theses days I am frequently engaged to help with these types of arguments. This could involve disputing the opposing party’s approach or simply suggesting more effective methods. This could involve some advice to the legal team, through to providing an affidavit in support of your discovery argument.
Too often these arguments occur when one party fails to comply with their discovery obligations, and often after discovery has taken place – when these practical discovery conversations should take place at the outset to target the approach.
If you are going to seek a proportionate discovery order, then be sure that you can substantiate your proportionality argument.
