The importance of discussing the electronic exchange format with the other parties at an early stage cannot be underestimated.
The Discovery Checklist (which was introduced as part of the new discovery rules in New Zealand in February 2012), expects parties to discuss the format for the listing and exchange of documents, on all matters. There are many more important discovery issues to discuss with the other parties, like the scope of discovery and search methods, but the exchange format is also an important consideration.
The last issue anyone wants to deal with is problems in accessing and inspecting other parties’ documents. This can be an unnecessary complication which can create additional work on receipt of the receiving documents. The legal team will want to get to inspect the documents as soon as they receive them.
These discussions are important to have at an early stage, as too often they are left to just before exchange is due. On the larger matters, if there may be potential issues with the exchange format, then it is often useful to look to provide a sample exchange data set.
In this day and age, once a party provides a list of documents, the exchange set of documents should be able to be provided immediately, only in some cases might this take a couple of more days. There is no longer the need for the Court to allow two weeks between providing a list of documents (Affidavit of Documents) and then providing the actual documents.
Rules are technology neutral
I have mentioned in detail on an earlier post that “a key feature of the New Zealand rules is that there is flexibility to modify the protocol to suit the requirements of the matter”.
Do not be scared off or even talked into believing you require a certain format or a particular software programme to comply with the electronic exchange requirements. The discovery rules are technology neutral, as they are specifically designed so anyone conducting litigation can comply. For many parties it can often be more efficient to provide in a format that is not specific to any software.
Just because the rules have a default listing and exchange format, it does not prevent parties agreeing a format that suits the requirements of the matter. On some matters the default position may add considerable burden that may not be proportionate for the matter.
There is often not a ‘one size fits all’ solution when it comes to discovery, as it is important to come up with a method that is specific to the individual matter.
Moving away from manually listing documents
Like many parts of the eDiscovery process there are many practices that can be conducted more efficiently, all made possible by obtaining the right advice at an early stage.
To save considerable time and money, most parties will look to use the metadata that can be extracted from the documents to list documents. This will significantly reduce unnecessary costs associated with the discovery process.
Native exchange
It is becoming more common for parties to agree to provide documents in their native electronic file format. Providing documents as PDFs is effectively just providing a photograph of the actual document, in doing so this may prevent the receiving party receiving document as held by the producing party.
When liaising with the other side over discovery issues, be sure to discuss an electronic exchange format that works for you – and do so at an early stage.
