What is e-discovery and how does it work?

Discovery is the process whereby parties to a dispute provide documentary evidence as part of their disclosure obligations under the requirements of the Evidence Act and the High Court Rules.

E-discovery is the use of electronic means to assist in finding, identifying, locating, retrieving, reviewing, listing or exchanging the documents described above.

General advice

Not all cases will be suitable for e-discovery and in some cases it will be almost a given – e.g. where a company conducts virtually all its business online and keeps no paper records. With changes in business practice this could become more common. Parties in a dispute will require careful advice regarding preservation and retention of records once a dispute arises and particularly once proceedings commence.

Overview of what is involved

The new rules, which came into force in February 2012, provide new principles of co-operation and proportionality. Parties are required to preserve and disclose documents at specific stages of the process. The discovery checklist in schedule 9 of the Rules must be consulted and tailored discovery may be required. The listing and exchange protocol in Part 2 of the schedule allows inspection through electronic exchange.

Objectives of High Court Rules

While the High Court Rules 2011 do not mandate the use of digital tools and methods, when implemented properly they align with the objectives of reducing disproportionate costs and delays caused by discovery.

Reducing the tactical use of discovery also enables more just outcomes e.g. parties with fewer resources will not be prevented from finding relevant evidence simply by the volume of material provided.

The rules provide:

8.2 – parties must co-operate to ensure discovery is proportionate, facilitated by agreement on practical arrangements

8.3 – as soon as litigation is reasonably contemplated parties must take all reasonable steps to preserve documents reasonably likely to be discoverable (NB objective test)

8.4 – the party must make initial disclosure of documents referred to or used when preparing the pleading – at the time the pleading is served

8.11 – parties must discuss and endeavour to agree on an appropriate order prior to the first case management conference, using the checklist.

8.12 – the judge may dispense with discovery, or require tailored or standard discovery – at the case management conference (Harvey J contemplates judicial activism in discovery to reflect the importance of cooperation, reasonableness and proportionality, and to meet the changing paradigm – internet.law.nz at 8.112)

Electronically Stored Information (ESI)

In the context of e-discovery ESI includes any information that a client may store electronically and is broadly inclusive. As well as the full gamut of business-related files such as email, SMS messages, voicemail, spreadsheets, databases, pdfs and other image files, ESI includes material stored locally on servers and other media plus back-up and archiving systems. Metadata and data embedded in files are also a potential e-discovery targets.

Checklists

The schedule 9 checklist includes:

• assessing proportionality
• determining the extent of the search
• tailored discovery (if appropriate)
• listing and exchange
• presenting the documents at trial

The process of e-discovery

The process follows the Electronic Discovery Reference Model (EDRM) which involves:

• identification of all information
• preservation to ensure nothing relevant is destroyed
• collection
• processing to reduce volume (explained further below)
• review of a sample for testing to determine whether a wider or narrower scope is required
• analysis of documents
• production of document list for presentation/exhange

Standard v Tailored discovery

Standard discovery requires production of documents that have been or are in the party’s control, and are documents that the party relies upon, that adversely affect that party’s or another party’s case, or support another party’s case. (r 8.7)

Tailored discovery is ordered when in the interests of justice more or less discovery is required than standard discovery would. (r 8.8)

There is a presumption in favour of tailored discovery where the costs of standard discovery are disporportionate to the matter, where proceedings are on the commercial list, where fraud or dishonesty is alleged, where the total assets or sums in issue exceed $2.5m, or where the parties agree.

Technologies and how they work

Technologies and techniques that may be used to increase the relevance and reduce the volume of documents in tailored discovery:

Clustering – grouping of documents that are conceptually alike by calculation of the mathematical relationship between the text and the context of the documents to assess documents with similar issues.

Keyword searching – a blunt tool for identifying documents that may have relevant content.

Concept searching – a more sophisticated tool for identifying conceptually related documents

Predictive coding – prioritising of documents by analysing human decisions made in the initial review.

Email threading – eliminates redundant or duplicated emails by focusing on entirety of email exchange rather than individual emails.

Duplication and exclusion – searches for and removes multiple versions of documents by identifying their unique ‘digital fingerprint’ generated when creating electronic documents.

Near duplicate identification – grouping and analysing of documents which are similar but not exact duplicates.

Listing and exchange

Parties are required to consider the listing and exchange protocol to determine whether it is appropriate or agree to modifications. In preparing documents for listing parties are encouraged to use native file formats wherever possible and to use the metadata from native files instead of manual listing of the documents.

Conclusion

In an increasingly technology-driven environment judges, lawyers and their clients will all need to be aware of the technologies available and the means by which discovery can be best managed to ensure cost and time efficient processes and just outcomes for the parties.