managing e-discovery in new zealand - keynote address

7/29/2019 Managing E-Discovery in New Zealand - Keynote Address

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E-Discovery

An Overview


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Two aspects

1. The concept of documents in the digitalparadigm

2. An overview of the new High Court Rules


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Documents in the Digital Paradigm

New Concepts


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The digital environment presents a newinformation paradigm


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Challenges our assumptions about andexpectations of information


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Especially so in the environment of thediscovery of documents.....


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......or should that be INFORMATION?


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Evidence in digital format ought to beconsidered as paradigmatically different from atraditional document.


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The physical and digital document are NOT

alike


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We focus on the content layer


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With digital information content is the end pointof a process


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All digital information is part of a process


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Data in electronic for depends upon hardwareand software


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Data on a hard drive requires an interpreter torender it into readable format


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The interpreter is the combination of hardwareand software


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The reader cannot render electronic data intoreadable form without the proper hardware


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Danger in thinking of an e-document as acoherent object


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Identification as a whole in a directory is

misleading


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E-document is a process


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Consists of unintelligible bits of data scatteredacross a medium.....


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Which are later assembled, processed andrendered legible for human use


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They werent

called wordprocessors for

nothing


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Document as a single entity does not exist


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It cannot exist independently from the processthat recreates it when it appears on a screen


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Thus, electronicdocuments areparadigmatically

different frompaper based ones


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What do we want to discover?


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The content........aka information


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Information is created and contained within acontainer

A piece of paper or an e-file


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This container preserves the illusion of adocument in the digital paradigm

Hence ESI = electronically stored information


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Yet e-information is so paradigmaticallydifferent from that in hard copy that the worddocument is redundant and anachronistic.


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It reflects our fascination with contentwhereas........


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It is the medium that is themessage


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Introductory

New Discovery Rules

High Court Amendment Rules (No 2) 2011

Addresses all forms of Discovery Our focus is on Electronic Discovery (E-

Discovery)


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Major Concepts

Co-operation between counsel in thediscovery process

Proportionality of discovery to the issues andthe costs involved


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Key Changes to Discovery

8 major observations


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1. Parties must co-operate to ensure that discoveryis proportionate and facilitated by agreementon practical arrangements.

2. Once litigation is reasonably contemplated,

prospective parties should take reasonable stepsto preserve documents that are reasonably likelyto be discoverable.

3. Parties must make initial disclosure ofdocuments referred to in a pleading or usedwhen preparing the pleading. The disclosuremust be made at the time that the pleading isserved.


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4. Parties must discuss and endeavour to agreeon an appropriate discovery order prior to thefirst case management conference. Thediscovery order must address the matters setforth in the new discovery checklist in the rules.

5. At the case management conference, the judgemay dispense with the discovery, orderstandarddiscovery or ordertailored discovery. Wherestandard discovery is required by the judge, it

entails the production of documents that the partyrelies upon and documents that adversely affectthat party's or another party's case.


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Tailored Discovery

Tailored discovery is presumed to apply instead ofstandard discovery in the following situations:a. when the costs of standard discovery are

disproportionate to the matters at issue;b. where either party makes allegations of fraud or

dishonesty;

c. where the sums at issue exceed $NZ 2.5 milliondollars;

d. where the parties agree to tailored discovery.

Tailored discovery can involve more or lessdiscovery than standard discovery.

In addition, tailored discovery requires discovery toproceed by category or through a method that

facilitates the identification of particular documents.


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6. Parties have a statutory obligation to conduct areasonable search for discoverable documents.

7. Documents must be listed in accordance with a newlisting and exchange protocol set out in Part 2 of

Schedule 9 to the Rules, unless the parties agreeotherwise.

8. Inspection of documents occurs by way of anelectronic exchange of documents, unless the

court orders otherwise. This means that paperdocuments must be scanned electronically so thatelectronic copies can be exchanged.


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In addition

The Rules impose additional upfront costs onparties, relating to the parties' preservation ofdocuments and requiring the parties to engage indialogue sufficient to reach agreement on

discovery and inspection issues.

These additional cost burdens imposed by theRules are predicated on the assumption that byrequiring these actions early on the parties willrealize substantial savings later in the course ofthe proceedings.


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Role of Technology Rules Committee

'delay and costs can be reduced by moving to an electronicdiscovery regime while the efficiency of the discovery processand the ability to achieve a just outcome can be improved'.

'technology can provide more accurate solutions which canassist in identifying the most important documents morequickly... the move to electronic discovery does no more thanreflect what is happening in the profession in any event'.

Recommendations are incorporated in R. 8.2(2)(c), whichrequires the parties to ensure technology is used efficientlyand effectively during the different phases of the discoveryprocess


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What is E-Discovery?

The methods by which the parties use electronicmeans to assist in finding, identifying, locating,retrieving, reviewing, listing or exchanging documents

to satisfy discovery obligations. Rules do not mandate the use of digital tools and

methods to find, identify, locate, retrieve or reviewdocuments

But such tools and methods, when properlyimplemented, can lower the monetary costs of thelitigation and accord with cost and proportionality

principles.


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ESI Electronically Stored Information

As part of the obligation to conduct areasonable search, parties must recognizewhat constitutes electronically stored

information.

ESI = information that is stored electronically


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Includes:

e-mail,

SMS text messages,

voice mail,

instant messages,

word processed documents,

spread sheets, data bases,

images such as JPEG or TIFF files, PDFs,

electronic calendars,

audio files and internal and external web sites.


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Primary and Non-Primary Data

Rules discuss how the data is accessed,differentiating between primary data and non-primary data.

Primary data is defined as data that is readilyretrievable,

Non-primary data is generally archival datathat is not readily retrievable.

e.g.Data stored on enterprise back-up tapes fordisaster recovery purposes contain non-primary

data for the purposes of the rules.


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Some Concepts

Metadata data about data

'in the case of an electronic document, metadata is typicallyimbedded information about a document that is not

readily accessible once the native electronic documenthas been converted into an electronic image or paperdocument, for example, the date of which the documentwas last printed or amended.

Metadata may be created automatically by a computersystem (system metadata) or may be created manuallyby a user (application metadata). Depending upon thecircumstances of a case, metadata may be

discoverable.'


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PDF

PDF (portable document format) is a file formatthat enables documents to be displayed orprinted in a manner that preserves the format

originally used by the author'.

The Rules state that a PDF file may be either asearchable image file or an unsearchable

image file. Should always be in searchable format


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Native Electronic Format

native electronic document or native file format defined as 'anelectronic document stored in the original form in which it wascreated by computer software programme'.

Lawyers often create a document in Microsoft Word andconvert it into a PDF before e-mailing the document.

The Microsoft Word document is the 'native electronicdocument' and the PDF document is not because the PDF does not contain all the metadata found in the

Microsoft Word document.

The Rules allow for lawyers to exchange documents, whichincludes e-mails, electronically in native format or PDF.


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The Discovery Checklist

Comes into play at the beginning ofproceedings.

Provides a roadmap for the discovery processleading up to the first case managementconference and beyond

Reflects the early discovery obligations of theparties and of counsel.


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The Five Steps

1. assessing proportionality

2. the extent of the search

3. tailored discovery4. listing and exchange

5. presenting documents at trial.


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Tailored Discovery

Does not inevitably follow in every case

Consider whether the default position issuitable and proportionate, or

Whether a tailored discovery order is requiredto address the extent to which a party mustsearch for documents and

Which reflects the particular circumstances ofthe case.

R l F f T il d Di


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Relevant Factors for Tailored Discovery

the number of documents involved;

the nature and complexity of the proceeding;and

the ease and expense of retrieval of anyparticular document; and

the significance of any document which islikely to be located during the search.

T il d Di b A t


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Tailored Discovery by Agreement

Should cover:

the categories of documents required to bediscovered by the parties (limited to what is

reasonable and proportionate); methods and strategies to conduct a reasonable

and proportionate search for the documents;

whether a staged approach may be appropriate.

Li ti d E h R i t


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Listing and Exchange Requirements

to reduce unnecessary costs of listing documents, parties areencouraged to:

Use native electronic versions of documents as much as possible; and

Use the extracted metadata from native electronic documents instead of

manually listing documents; and Convert documents to image format only when it is decided they are to

be produced for discovery; and

If document images are to be numbered, only number those images ifthey are to be produced for discovery.'

D t R i


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Document Review

The discovery checklist identifies methods andstrategies for locating documents.

The parties must seek agreement on themethods and strategies appropriate to conducta reasonable and proportionate search for thedocuments.

S h S l ti


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Search Solutions

keyword searches; other automated searches and techniques for culling

documents including

concept searching,

clustering technology, document prioritisation technology predictive coding,

e-mail threading,

and any other new tool or technique;

a method to be used to identify duplicate documents

Native file review

where the specialist assistance is required to locate

documents efficiently and accurately.

C l i


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Conclusion

Technology has created problems in the discovery arena by

vastly extending the scope of potential discovery but it mayalso be a solution to these increasing volumes.

The technology must be used efficiently and effectively toenable a more proportionate and cost-effective discovery

process. It may assist the parties in every aspect of the process from

the identification of information through to its presentation inthe courtroom.

However the main advantage may be seen as the costbenefits that it can bring at the initial stages.

For further information see Harvey D.J. & Garrie D. New Zealands New Rules andElectronic Discovery(2012) 23 SCL Computers and Law Issue 1 p 36 orhttp://www.scl.org/site.aspx?i=ed26113 (last accessed 5 July 2012)
http://www.scl.org/site.aspx?i=ed26113http://www.scl.org/site.aspx?i=ed26113