In New Zealand there has been a recent Consultation process about Improving Access to Civil Justice. This is a positive step as we would all acknowledge there is work to do here in simplifying eDiscovery obligations.

As part of these discussions, somewhat inevitably is evaluating the role of discovery and the potential reform of discovery obligations.

To improve access to justice (especially with low value cases) we need to do everything to ensure matters are not bogged down by costly and time-consuming requirements, which if not undertaken proactively and targeted – the discovery process can definitely be one.

These issues are not new or unique to New Zealand. Many jurisdictions have grappled with these issues for many years, and the solution today is probably also the same as what it was back then too. To address discovery proportionately and cost effectively, we need to be more targeted in our approach – facilitated by more robust case management of the practical requirements!

Before anyone decides to throw the baby out with the bath water, do we need to drastically change the rules, or be more proactive in applying the existing rules relating to discovery?

Let’s dig a little deeper into the issues and potential solutions.

Let’s do away with discovery…

“Discovery is too expensive”
“The discovery exercise is not proportionate”
“Let’s do away with discovery”
“Let’s change the rules”

Simple isn’t it – lets do away with discovery, then we will facilitate improved access to justice !

Not so fast !

Seeing the problem of discovery as an excessive cost preventing access to justice is too simplistic.

Let’s not lose sight of discovery being an integral process where parties exchange information that is pertinent to the case – an essential part of any civil litigation matter. The problem isn’t discovery itself, but how the practical requirements are approached. Simply put the discovery process needs to be more targeted – more targeted to the matter at hand. If it is not managed robustly at an early stage, discovery can quickly become a time consuming and costly part of any matter.

The objective of discovery should be to get only what you need and do so it a way that is quick and cost effective – to help resolve the dispute.

As I have said previously, discovery is not expensive – discovery done badly is !

What is standing in the way?

The problem with the discovery process is amplified by the increasing volumes and sources of information; and not adequately addressing discovery at an early stage on all matters.

Increasing data volumes

The volumes of data experienced in the discovery process continue to increase rapidly, requiring smarter ways to manage this information. We are all communicating differently than we did in the past, whilst the devices we use to communicate and store information are evolving exponentially.

On most matters, the amount of key discoverable documents may not be too different to the numbers experienced previously. The issue is how do we get to them, as so much of the information will probably be irrelevant.

No one wants to have lawyers investing their time (and the clients’ money), looking at information that may be totally irrelevant – time and money that can be better utilised elsewhere. Far too often one of the largest and completely unnecessary costs of the discovery process is lawyers spending their time reviewing entirely irrelevant information. The skill is to come up with effective methods to get rid of what you don’t need so that you can devote your energies at only looking at what matters most.

These increasing volumes and sources of documents require considerably more pro-active work, and much earlier in the process.

Not addressing Discovery at an early stage

Back in 2012 in New Zealand, the High Court Rules established a framework to assist parties reach agreement on discovery issues in a proportionate and cost-effective manner. 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.

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 solution(s) are already at our disposal

We have the levers in the existing rules, however they are not always adhered to in practice, or too quickly glossed over. Rules are not perfect (what is ‘perfect’ anyway?), 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?

Often when I ask, “what came out when you addressed the Discovery Checklist”, too often the response is 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.

The first requirement of the discovery checklist 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”.

We need to take the time at an early stage to have these discussions to help target the discovery process.

If discovery is not more targeted, then the costs will continue to escalate on all matters, and only increase the access to justice divide. A one size fits all approach will not work the same for small and large matters. I would argue a tailored or targeted approach is beneficial for all matters – even more so for the lower value, less complex matters.

Let’s proactively target discovery, at an early stage

It is always great to see interest in making the discovery process more effective – something I have been passionate about for years. 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.

As I have highlighted previously, there are usually some easy wins that can quickly and cost effectively help the discovery process.

With more robust case management, the discovery process should be able to be more targeted to the matter at hand. The time invested at the outset can save thousands down the track, not to mention lessening the burden of the process – ultimately improving access to justice.