Raising the awareness of electronic discovery has become something of a mission of mine of late. Electronic discovery is an area that continues to evolve with new challenges arising, as well as new solutions developing – it is just a matter of sharing this knowledge.
Historically in New Zealand there were not any court rules or any available guidance on ways to conduct electronic discovery – that has now all changed since the introduction of the new discovery rules on 1 February 2012.
The new discovery rules expect parties to have more of an understanding of electronic discovery. Previously parties could get by without assessing proportionality and what electronic information they had, or more precisely ‘getting by’ without articulating this with the other side. The Court now expects the parties to know more about their information at an earlier stage to enable them to assess proportionality on all matters – this will involve making decisions that can be quite challenging due to the volumes and sources of electronic information. If parties do not have a greater understanding of electronic discovery issues, then it will not be possible to make an informed assessment about proportionality.
Proportionality is the key to the changes
Of late I have been approached by many firms to provide training sessions on the new rules. During these sessions it has surprised me though as to how many have not been fully aware of the new proportionality requirements. This lack of awareness has not been helped by a number of articles recently about the new rule changes, which do not mention the proportionality requirements, or if they do, they are glossed over and focus is paid to other aspects of the new rules.
Only by cooperating on what is proportionate to the matters in dispute, will the cost of discovery be able to be controlled. If parties do not use the flexible framework of the new rules and only focus on producing documents in an electronic format, then discovery will continue to be expensive and burdensome.
I still try and hammer home the message that ‘’electronic discovery’’ is NOT solely turning documents into an electronic format. It is more complex than that as it involves the entire process of handling electronic information, with the practices used at the start of the process with the identification, collection and analysis of information even more important than just producing the information in an electronic format.
As those that have tackled electronic discovery will know, the process involves many more challenges than with paper documents – everything was probably simpler in a paper based world! Unless these challenges are understood and an effective, accurate and proportionate solution found then discovery costs can spiral out of control.
I constantly suggest that many of the costs associated with discovery are unnecessary costs, due to a lack of understanding of more efficient methods. Applying paper based methods to tackle new issues posed by electronic information can add unnecessary cost and burden to the discovery process. (I will elaborate further on unnecessary practices for conducting electronic discovery in future posts). Unfortunately paper still plays a dominant part with law firms, when often it does not need too. Paper will always play a part (hopefully a less important part), but it is no longer cost effective or proportionate to use this as an approach.
By being more informed about more efficient practices, parties should be able to eliminate many of the unnecessary practices.
Using social media to raise awareness
Like many others throughout the industry, I use my Blog, Twitter and LinkedIn to share information that will hopefully assist those in the legal community to reduce their legal spend. If it is happening in the electronic discovery space, then it will be featured in some way on my blog, or through my Twitter tweets (which are also assessable from my blog). Many of these resources look to provide information on more effective and efficient methods to manage information.
The more we can collectively raise the awareness of electronic discovery the better. The greater awareness needs to be embraced right across the legal spectrum from the Corporations, Lawyers through to the Judiciary. They each have an important role to play to ensure discovery is conducted proportionately, cost effectively and accurately. The new rules establish a framework to make the discovery process more effective, although it will be the practices of those involved that will ensure if the rules will result in more efficient and cost effective discovery.
Through social media I have been trying to articulate what the new discovery rules will mean for all involved in the litigation process. At the same time I try to share information from those experts abroad who experience similar issues to those experienced here. Making this information accessible to all in New Zealand should assist in raising the awareness of electronic discovery, enabling a more informed and efficient discovery process.
