The High Court discovery rules (which commenced in February 2012) require considerably more work in advance of the first case management conference (CMC).
The front loading of work is designed to assist in limiting the scope of discovery to what really matters and provide considerable value later in the discovery process.
On all matters parties must address a Discovery Checklist (Schedule 9 of the HCR) and discuss with the other parties to agree the scope and practical arrangements for conducting discovery. This is required to happen at least 10 working days prior to the first CMC.
Discovery checklist requirements
The Discovery Checklist provides a roadmap 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.
Working through the Discovery Checklist will help determine if standard or tailored discovery will be appropriate. The exercise is more than simply agreeing standard or tailored discovery, as is not possible to sufficiently assess the scope of discovery until the entire Discovery Checklist has been addressed.
It is beneficial to enter into a dialogue with the other parties well in advance of the CMC. This dialogue will seek to agree the discovery order and the methods for carrying out the exercise.
In assessing proportionality it is important to identify:
- who are the key individuals in the dispute;
- what information you have and where it is located;
- what information is important to the matter in dispute; and
- how the information can be provided in a method that is accurate, efficient, and cost-effective.
Parties need to assess and then discuss (with each other) whether the estimated cost is proportionate to the sums in issue or the value of the rights in issue in the proceeding. Assessing and predicting these costs will be important to substantiate proportionality claims in preparation for the first CMC.
The proliferation of electronic information has made predicting and controlling the costs of discovery more complicated. Being more informed about the discovery requirements, methods and strategies will provide the court and your own client greater transparency over likely costs.
Methods and strategies to limit the scope of discovery
Parties may agree a “Tailored Discovery” order by limiting discovery to what is reasonable and proportionate. Tailored discovery may involve identifying subject matter, date range, types of documents and key individuals.
To identify the required information parties are required to seek agreement on what methods and strategies are appropriate to conduct a reasonable and proportionate search for the documents, including (but not limited to) the following:
- appropriate key word searches;
- other automated searches and techniques for culling documents including concept searching, clustering technology, document prioritisation technology (predictive coding), email threading, and any other new tool or technique; and
- a method to be used to identify duplicate documents; and
- where the specialist assistance is required to locate documents efficiently and accurately.
Modifying the listing and exchange protocol
The listing and exchange protocol should be discussed with other parties when working through the Discovery Checklist. Parties may agree to modify the protocol as the default requirements may only add additional burden to the exercise.
In LawTalk 852 (10 October 2014), I outlined how parties may decide to use metadata to populate the list of documents and provide documents in their native electronic file format.
Early planning now essential
The court requirements, together with the volumes of information require more time to be invested in planning at the outset of each discovery exercise. This will help reduce the costs, time and stress associated with conducting discovery.
Even on the smallest of matters, investing an hour at the outset can provide considerable value as the matter progresses. Many of the mistakes made in the discovery process are made at an early stage, which can prove very costly later in the proceeding.
The objective of any discovery exercise should be to facilitate a method of getting to the most important information quickly, cost effectively and accurately. To achieve this it is important to develop a discovery strategy at an early stage.
The strategy may include:
- how to identify and collect documents from the client;
- assessing and predicting the costs involved in each stage of the process;
- an approach to search and review documents; and
- complying and modifying the listing and exchange format.
The strategy can help substantiate your discovery approach in advance of the first CMC and discussions with other parties. Those who have invested more time at the outset of a matter will be in a more informed position before agreeing the discovery order.
Evolving skillset required
Today’s document volumes and the challenges associated with managing this information can create additional headaches for lawyers. It is important for lawyers to be aware of the latest technologies and practices to facilitate a proportionate and cost effective approach to discovery.
To ease the continual requirement to update skills, it can be beneficial to engage specialist expertise (when required) to help navigate through some of these challenges. Expert guidance can help simplify the discovery process, while reducing the cost of discovery and providing a competitive advantage over firms that may not have expertise to call upon.
On all matters parties are now expected to carry out more upfront work in advance of the first CMC.
The time invested at an early stage will provide a considerable advantage before agreeing a discovery order with opposing counsel. Parties that invest time in planning for discovery will be in a more informed position to develop their overall case strategy, ensuring a more successful and cost effective discovery process.
Andrew King is the founder and strategic advisor at E-Discovery Consulting (www.e-discovery.co.nz), where he manages the entire discovery process or provides independent advice on any aspect of it. He also organises New Zealand’s premier legal technology event – LawTech NZ. Andrew can be contacted on 027 247 2011 or email@example.com.