Facilitating a proportionate approach to discovery is fundamental to the proposed New Zealand discovery reforms. In recognition of not every dispute being the same, the new rules allow for discovery orders to be tailored to suit the specific requirements of each matter.
As I have mentioned in earlier posts, the volumes and sources of electronic information continue to increase. Discovery is significantly more complicated today, with some arguing that everything was a lot simpler in a paper based world. That is probably true, but we cannot ignore the issues created by electronic information, as almost all communication today is generated electronically. To respond to these evolving complexities it is essential that parties seek to cooperate more fully on a proportionate approach. Cooperation and proportionality are linked closely throughout the new rules (as mentioned at Rule 8.2) – a proportionate approach cannot happen, unless there is early cooperation between the parties about the scope of discovery.
Assessing proportionality
The first substantive requirement of the Discovery Checklist (Schedule 9, Part A), is that parties are expected to assess and discuss with the other parties whether that estimated cost is proportionate to the sums in issue or the value of the rights in issue in the proceeding.
As we all know much of the costs involved in discovery can be unnecessary costs. These costs can be significantly reduced by agreeing a proportionate approach with the other party to try and get to the information that really matters. The rationale is that these discussions should take place at the outset of a matter and before any considerable cost has been incurred. The proportionate approach should largely focus on:
- Identify what you have and where it is located;
- What is important to the matter in dispute; and
- How we can best provide this information in a method that is accurate, efficient and cost effective.
Proportionality principles
Proportionality, along with the duty of greater cooperation is a common theme in many other jurisdictions. When comparatively considering proportionality, it is worthwhile drawing attention to the Sedona Conference® Commentary on Proportionality in Electronic Discovery (August 2010). The principles of proportionality included:
- The burdens and costs of preservation of potentially relevant information should be weighed against the potential value and uniqueness of the information when determining the appropriate scope of preservation.
- Discovery should generally be obtained from the most convenient, least burdensome and least expensive sources.
- Undue burden, expense, or delay resulting from a party’s action or inaction should be weighed against that party.
- Extrinsic information and sampling may assist in the analysis of whether requested discovery is sufficiently important to warrant the potential burden or expense of its production.
- Nonmonetary factors should be considered when evaluating the burdens and benefits of discovery.
- Technologies to reduce cost and burden should be considered in the proportionality analysis.
Proportionality in other jurisdictions
Similar principles of proportionality are fundamental to many of the reforms in common law jurisdictions where parties have looked to take a proportionate approach to discovery.
The report by the Australian Law Reform Commission, Managing Discovery: Discovery of Documents in Federal Courts (May 2011), like Lord Jackson’s Review of Civil Litigation Costs (December 2009), both focussed on making the costs associated with discovery more proportionate, especially to the issues in dispute.
Practice Direction 31B – Disclosure of Electronic Documents (PD31B) in the UK, essentially sets a framework, or guidelines to facilitate proportionate e-disclosure. All of the considerations enable the parties to consider what a proportionate approach may be. Obviously you cannot establish what is proportionate until you know exactly what you have and where it is. The Electronic Documents Questionnaire enables parties to have more information at an early stage, before they consider a proportionate approach to the matter.
In Australia, proportionality is now included in the new Federal Court Rules (that commenced on 1 August 2011). Rule 1.31(2), now states The Court may deal with the proceeding in a manner that is proportionate to the nature and complexity of that proceeding. It is important to note that Federal Court Practice Note CM5 (The ‘Discovery’ Practice Note), has also been amended to specifically refer to proportionality. CM5 now reinforces proportionality by stating – In determining whether to make any order for discovery, the Court will have regard to the issues in the case and the order in which they are likely to be resolved, the resources and circumstances of the parties, the likely benefit of discovery and the likely cost of discovery and whether that cost is proportionate to the nature and complexity of the proceeding. Federal Court Practice Note CM6 – Electronic Technology in Litigation (without specifically referring to proportionality), outlines considerations for parties to address that facilitate a proportionate approach to discovery.
Many would argue that these obligations have always existed within the rules, but the reforms are solely highlighting the requirements and making it easier for practitioners to carry them out, in a contemporary context. The reforms in other jurisdictions should help familiarise those unaccustomed to the concepts of proportionality in NZ as we learn from their experiences.
As I continue my series of trying to raise the awareness of e-discovery in New Zealand, and focuss on what the new discovery reforms will mean, future posts will expand further on methods and technologies that parties will be expected to cooperate to endeavour to ensure discovery is proportionate and cost effective to the proceeding.
Contact us today for further information, or if you want to know what the proposed rules could mean for you.
