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

Read the Rules !

November 22nd, 2017

Leading eDiscovery commentator Chris Dale provided an excellent post this week about A proposed new disclosure rule for England and Wales. Chris makes an excellent observation that before there are rule changes, those involved in disclosure (or discovery for the rest of the world), should read the eDiscovery rules.

I couldn’t agree more with Chris, as too often lawyers, judges and others involved in discovery do not read the rules.

No one would deny that the volumes and sources of information continue to increase exponentially, and how the discovery process is addressed could be more efficient. But, does this require us to re-write the rules? The volumes and complexities associated with discovery will evolve further tomorrow and the day after…

Many of the perceived problems identified in the UK Proposed Disclosure Pilot Briefing Note, are concerns that can be addressed within the framework of the rules. The question should be if there are ‘defects’ in the rules (as the document calls them), or are the rules not being fully applied by all concerned?

The same applies in New Zealand

I thought I would give my ‘few cents worth’ of what happens here in New Zealand as new discovery rules were introduced in 2012. The rules established a framework to assist parties reach agreement on discovery issues in a proportionate and cost-effective manner. Like the UK, the rules here are not always fully applied by all concerned. 

On all matters parties must address a Discovery Checklist and then discuss the issues raised with the other parties to agree the scope and practical arrangements for conducting discovery. The checklist provides a road map to assist parties to co-operate over how discovery will be conducted, to assess a proportionate and reasonable search for documents tailored to suit the requirements of each matter.

The rules introduced an expectation of more front loading of discovery work, but this initial work enables lawyers to make more informed decisions and reduce costs later in the proceedings.

Even if parties cannot agree, Rule 8.12(3) permits the judge to make a discovery order to “include specific directions as to the manner of discovery”.

Use the existing eDiscovery Rules

Some of the perceived problems of the discovery process and the rules, like mentioned in the UK are valid. However many of the issues can be addressed by substantiating your approach, and when required asking the Court to order on them.

The objective of discovery should be to move through the process as quickly, cost effectively and accurately as possible to help resolve the dispute. This can be achieved within the framework of the existing rules.

Rules are not perfect (life isn’t always either), but if you have the framework to achieve the objective of the rules within the rules themselves, then isn’t it a case of just applying the rules?

It is always great to see interest in making the discovery process more effective. However if we want to address the issues that we know exist in the discovery process, firstly it is important to be prepared to be more pro-active earlier in the proceeding as to how discovery will be addressed. That goes for judges, lawyers and all involved.

A starting point can be by reading the rules !



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