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Reasonable and Proportional Discovery in the Digital Paradigm: The Role of Lawyers and Judges in the Context of the New Zealand Discovery Rules

Reasonable and Proportional Discovery in the Digital Paradigm: The Role of Lawyers and Judges in the Context of the New Zealand Discovery Rules

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Published by djhdcj
This is a paper delivered to the Asia Legal Big Data Conference in Hong Kong on 29 April 2014. It builds on earlier work I have done in this field and in particular a paper I delivered at the Courts Technology Conference with Daniel Garrie in September 2013 in Baltimore. It emphasises the way in which co-operation between counsel is an on-going obligation and how Judges and Counsel may work together to achieve a reasonable and proportionate outcome for discovery. It also emphasises the importance of technological competence on the part of counsel and the judiciary in crafting successful outcomes
This is a paper delivered to the Asia Legal Big Data Conference in Hong Kong on 29 April 2014. It builds on earlier work I have done in this field and in particular a paper I delivered at the Courts Technology Conference with Daniel Garrie in September 2013 in Baltimore. It emphasises the way in which co-operation between counsel is an on-going obligation and how Judges and Counsel may work together to achieve a reasonable and proportionate outcome for discovery. It also emphasises the importance of technological competence on the part of counsel and the judiciary in crafting successful outcomes

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Published by: djhdcj on May 01, 2014
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1
Reasonable and Proportional Discovery in the Digital Paradigm: The Role of Lawyers and Judges in the Context of the New Zealand Discovery Rules Judge David Harvey
1
 Introduction
The Digital Paradigm presents many challenges for legal practice. More and more information is stored electronically as we move from the paper-based environment to a digital on-line world. This electronically stored information (ESI) is replacing the traditional hard copy document and this has revolutionary implications for the process of discovery. The Digital Paradigm demands that discovery be a process having regard to the large volumes of material in digital format scattered over many devices and in the hands of many people within an organisation. In this paper I shall discuss the discovery process and the way in which the High Court rules in New Zealand address discovery in the new Paradigm. I wish to first emphasise the need for a new mindset for e-discovery and then outline the process of discovery. I then wish to examine the New Zealand approach to considering a High Court rules and then discuss the checklist that forms the basis for discovery under the rules along with technological implications.
A New Discovery Mindset
The New Zealand Rules illustrate the necessity for a new discovery mindset. The need for a new approach to discovery was articulated by David Lender and Magistrate Judge Andrew Peck in the following way:
“Thus, in order to make litigatio
n more affordable and focused the entire paradigm of discovery needs to change. Litigants and courts should approach discovery differently depending on what is at stake in the case, and how complex the issues are expected to be. There simply is no reason in most cases to produce thousands upon thousands of documents from dozens of custodians, simply because they have touched an issue, when the dispute really centers around a handful of key players who will have most (albeit not all) of the documents that are potentially relevant to
the case.”
2
 
1
 LLB (Auckland); MJur (Waikato); PhD (Auckland) A Judge of the District Court, Auckland , New Zealand
2
 David Lender &
Andrew Peck, “10 Key
E-Discovery
Issues in 2011: Expert Insight to Manage Successfully” The
Huron Legal Institute available from The Metropolitan Corporate Counsel at <www.metrocorpcounsel.com/pdf/2011/April/01.pdf> at p 5.
 
2
Thus one must adopt a “horses for courses” approach. The extent of discovery will differ
from case to case and the themes of
reasonableness
 and
proportionality
 are essential in the approach to ESI cases and disputes. As was said in
Rimkus Consulting Group, Inc. v. Cammarata
3
 
“*T+he reasonableness of discovery burdens in a $550 million case arising out of the
liquidation of hedge funds, as in
Pension Committee
, will be different than the reasonableness of discovery burdens in a suit to enforce noncompetition
agreements and related issues, as in the present case.”
 
Rimkus
 emphasised reasonableness and proportionality noting:
“*w+hether preservation or discovery conduct is acceptable in a case depends on
what is reasonable, and that in turn depends on whether what was done
 –
 or not done
 –
 was proportional to that case and consistent with clearly established
standards.”
4
 
This approach was considered “too amorphous” in
Orbit One Communications, Inc. v. Numerex 
5
 Corp. which s
uggested that that, “until a more precise definition is created by
rule, a party is well-
advised to ”retain all relevant documents (but not multiple identical copies) in existence at the time the duty to preserve attaches.” However, as new rule
systems develop, reasonableness and proportionality are being emphasised, especially in England and New Zealand. In the pursuit of reasonableness and proportionality courts have to be prepared be a)
 
robust and b)
 
set limits to the reasonable search for documents. This may include limiting search terms or methods used. What must be recognised is that, as an aspect of the digital paradigm arising from the properties of digital technologies, it is no longer possible to follow every line of enquiry. It may well be that the
“smoking gun “ will
be undiscovered. But limitations are necessary to achieve justice at an effort and cost that is reasonable and proportionate to the case.
The Obligations of the Parties
Part of the new discovery mindset requires a different approach from the lawyers. This brings into the focus the theme of
collaboration and co-operation
 in the discovery process. The objectives of reasonableness and proportionality will be achieved if there is discussion
3
 688 F. Supp. 2d 598, 613 n.9 (S.D. Tex. 2010).
4
 Ibid. p. 613.
5
 2010 WL 4615547 (S.D.N.Y. Oct. 26, 2010.
 
3
and agreement. The Federal Rules emphasise the importance of meet and confer obligations under R. 26(f).
6
 Courts must insist on effective co-operation and prior discussion of the extent of the search. This is made clear in the Sedona Conference Cooperation Proclamation with its call for
“cooperative, collaborative, *and+ transparent discovery” and the expectation that parties will “reach practical agreement on search terms, date ranges, key players, and the like.”
 
The Process of Discovery An Explanation of the Stages
The phased process illustrated in the diagram reflects some of the phases that appear in Court Rules in England and New Zealand.
 
1.
 
Information Management
 
 –
 the evaluation of how records management programs impact electronic records and E-Discovery 2.
 
Identification
 
 –
 the process of learning the location of all data which is subject to the duty to preserve or potentially disclose in pending or prospective litigation
6
 Meet and confer obligations are also clear and required by Part 31 of the English High Court Rules as well as Practice Direction 31B
 –
 Disclosure of Electronic Documents. The New Zealand Rules require a co-operative approach (High Court Rules 8.2) which will be discussed below.

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