I Introduction
Discovery is the identification of information. Electronic Discovery focuses on the discovery of digital information. The equivalent of triplicate paper copies of a single letter in the digital era are the monthly backup tapes that potentially store 12 duplicates of the same e-mail message during the course of a year. Electronic data, be it in a permanent or ephemeral state, can be stored in a multitude of devices (home computer, server, tape, smart phone, iPhone, iPad, or laptop) and paper is stored in a single place with a single point of access. Paper data is captured with pen to paper on a tangible physical medium that one can touch, smell, and feel and an e-mail is a string of 1’s and 0’s translated by a device for whatever medium is receiving the data and presenting to the user. This article considers recent changes to discovery rules in New Zealand.
The New Zealand High Court Rules Committee, in recognition of these complex issues, recommended changes to the discovery rules which are embodied in the High Court Amendment Rules (No 2) 2011 – the new discovery rules – which make significant changes to the existing High Court Rules for discovery and inspection. Several new principles are introduced such as those of co-operation and proportionality. Associated with these principles are new duties that require the preservation of documents, often before proceedings are commenced, and the duty of disclosure of documents when pleadings are filed. The High Court Amendment Rules provide a discovery checklist which parties must consult and, depending on the specific scenario, they may be required to make standard or tailored discovery. The High Court Amendment Rules also introduce a new listing and exchange protocol with inspection to take place by way of electronic exchange. The new High Court Rules for Discovery came into force on 1 February 2012. We shall first outline in brief some of the key changes to the discovery rules and then turn to consider the use of technology in relation to electronic discovery and the way in which the new rules deal with this.
II Discussion of the New High Court Rules for Discovery
The new High Court Rules were designed with the intent of reducing the disproportionate costs and delays that can be caused by discovery.[1] In addition, the Rules seek to restrict the use of discovery as a tactical tool. The key changes contained in the Rules may be summarised by the following nine observations:
1. Parties must co-operate to ensure that discovery is proportionate and facilitated by agreement on practical arrangements.[2]
2. Once litigation is reasonably contemplated, prospective parties should take reasonable steps to preserve documents that are reasonably likely to be discoverable. [3]
3. Parties must make initial disclosure of documents referred to in a pleading or used when preparing the pleading.[4] The disclosure must be made at the time that the pleading is served. [5]
4. Parties must discuss and endeavour to agree on an appropriate discovery order prior to the first case management conference. [6] The discovery order must address the matters set forth in the new discovery checklist in the rules. [7]
5. At the case management conference, the judge may dispense with the discovery, order standard discovery or order tailored discovery. [8] Where standard discovery is required by the judge, it entails the production of documents that the party relies upon and documents that adversely affect that party’s or another party’s case. [9]
6. Tailored discovery[10] is presumed to apply instead of standard 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 million dollars;
d. where the parties agree to tailored discovery. [11]
Tailored discovery can involve more or less discovery than standard discovery. [12] In addition, tailored discovery requires discovery to proceed by category or through a method that facilitates the identification of particular documents. [13]
7. Parties have a statutory obligation to conduct a reasonable search for discoverable documents. [14]
8. Documents must be listed in accordance with a new listing and exchange protocol set out in Part 2 of Schedule 9 to the Rules, unless the parties agree otherwise. [15]
9. Inspection of documents occurs by way of an electronic exchange of documents, unless the court orders otherwise.[16] This means that paper documents must be scanned electronically so that electronic copies can be exchanged.
In addition to these nine observations, the Rules impose additional upfront costs on parties, relating to the parties’ preservation of documents and requiring the parties to engage in dialogue sufficient to reach agreement on discovery and inspection issues. These additional cost burdens imposed by the Rules are predicated on the assumption that by requiring these actions early on the parties will realize substantial savings later in the course of the proceedings.[17]
A The Role Technology Plays under the New Rules for Discovery
A theme that runs through the new discovery rules is the need for parties and counsel to utilize technology in a manner that is both efficient and effective. The Rules Committee noted in its consultation paper that:
‘delay and costs can be reduced by moving to an electronic discovery regime while the efficiency of the discovery process and the ability to achieve a just outcome can be improved’. [18]
The committee further recognized that
‘technology can provide more accurate solutions which can assist in identifying the most important documents more quickly… the move to electronic discovery does no more than reflect what is happening in the profession in any event’.[19]
These recommendations are incorporated in R. 8.2(2)(c), which requires the parties to ensure technology is used efficiently and effectively during the different phases of the discovery process. [20]
What, then, is electronic discovery? The Rules define electronic discovery as the methods by which the parties use electronic means to assist in finding, identifying, locating, retrieving, reviewing, listing or exchanging documents to satisfy discovery obligations. [21] The Rules do not mandate the use of digital tools and methods to find, identify, locate, retrieve or review documents, although such tools and methods, when properly implemented, can lower the monetary costs of the litigation and accord with cost and proportionality principles.
As part of the obligation to conduct a reasonable search, parties must recognize what constitutes electronically stored information.[22] The Rules define electronically stored information (ESI) as information that is stored electronically, which 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. [23] Under the Rules, it is possible that parties will need to search for ESI on readily accessible systems, enterprise servers and backup systems. In some circumstances, it is possible that the parties will need to search for ESI that might have been deleted or for data that is not visible to the naked eye, such as metadata or embedded data.
To assist with some technological issues arising in e-discovery, the Rules include a helpful glossary of technical terms. The glossary defines ‘metadata’ as data about data. It states:
‘in the case of an electronic document, metadata is typically imbedded information about a document that is not readily accessible once the native electronic document has been converted into an electronic image or paper document, for example, the date of which the document was last printed or amended. Metadata may be created automatically by a computer system (system metadata) or may be created manually by a user (application metadata). Depending upon the circumstances of a case, metadata may be discoverable.’ [24]
The glossary also defines PDF in the following way
‘PDF (portable document format) is a file format that enables documents to be displayed or printed in a manner that preserves the format originally used by the author’. [25]
The Rules state that a PDF file may be either a searchable image file or an unsearchable image file. These two types of ESI demonstrate the potential digital land-mines that will confront counsel if he or she fails to understand the various systems subject to discovery. The Rules not only discuss the systems component of electronic discovery, but also discuss how the data is accessed, differentiating between primary data and non-primary data. [26] Primary data is defined as data that is readily retrievable, [27] whereas non-primary data is generally archival data that is not readily retrievable. [28] Data stored on enterprise back-up tapes for disaster recovery purposes contain non-primary data for the purposes of the rules.
Counsel should pay particular attention to the concept of ‘native electronic document,’ [29] because if counsel gets it wrong it could have an impact on the cost and have a possibly adverse impact on the outcome of the matter. The Rules define native electronic document or native file format as ‘an electronic document stored in the original form in which it was created by computer software programme’. [30] Lawyers often create a document in Microsoft Word and convert it into a PDF before e-mailing the document. In such a case, the Microsoft Word document is the ‘native electronic document’ 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, which includes e-mails, electronically in native format or PDF.[31]
B. Discussion of the Process Set Out in the Discovery Checklist Set forth by the Rules
The new Rules provide a discovery checklist which comes into play at the beginning of proceedings. It provides a roadmap for the discovery process leading up to the first case management conference and beyond and reflects the early discovery obligations of the parties and of counsel.
The Discovery Checklist is contained in Schedule 9, Part 1 of the Rules. There are five major parts to the checklist. They are:
1. assessing proportionality
2. the extent of the search
3. tailored discovery
4. listing and exchange
5. presenting documents at trial.
1. Assessing Proportionality
Assessing proportionality and the extent of the search are the first obligations and involve five stages elaborated in the checklist. They can be summarised as follows:
· Stage 1, Identify:[32] review pleadings; list relevant issues; identify relevant categories of documents
· Stage 2, Locate:[33] hard copy and e-docs; other agents (eg lawyers, accountants); the duty to preserve that which is located should be emphasised.[34]
· Stage 3, Assess:[35] volume and ease of assembly; methods; time and cost involved; proportionality.[36]
· Stage 4, Discuss:[37]proportionality; protocol; duty to seek to agree.[38]
· Stage 5, Memorandum:[39] aim for joint memorandum; if separate, justify position.
2. Extent of Search
The extent of the search obligations carries additional responsibilities, specifically the parties must:
(a) assess whether any of the methods identified may assist in locating electronic material efficiently; [40] and
(b) consider whether it would be appropriate to seek a tailored discovery order about the extent to which a party must search for documents to reflect the circumstances of the case, including (but not limited to) the following:
(i) the number of documents involved; and
(ii) the nature and complexity of the proceeding; and
(iii) the ease and expense of retrieval of any particular document; and
(iv) the significance of any document that is likely to be located during the search.
3. Tailored Discovery
Tailored discovery does not inevitably follow in every case. A central issue parties should consider in item (ii) above is whether the default position is suitable and proportionate, or whether a tailored discovery order is required to address the extent to which a party must search for documents and which reflects the particular circumstances of the case. Factors that are relevant include (but are not limited to) the following:
• the number of documents involved;
• the nature and complexity of the proceeding; and
• the ease and expense of retrieval of any particular document; and
• the significance of any document which is likely to be located during the search.
If there is tailored discovery by agreement, the following matters should be covered by the parties:
· the categories of documents required to be discovered 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.
4. Listing and Exchange Requirements
The discovery checklist, under Listing and Exchange Requirements, states:
‘to reduce unnecessary costs of listing documents, parties are encouraged 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 if they are to be produced for discovery.’[41]
The discovery checklist, in addressing the issue of tailored discovery, identifies methods and strategies for locating documents. [42] The parties must seek agreement on the methods and strategies appropriate to conduct a reasonable and proportionate search for the documents, including the following:
- appropriate keyword searches;
- other automated searches and techniques for culling documents including concept searching, clustering technology, document prioritisation technology, e-mail threading, and any other new tool or technique;
- a method to be used to identify duplicate documents; and
- where the specialist assistance is required to locate documents efficiently and accurately.
C. Culling Documents and Keyword Searching
The Rules discuss keyword searching, which is searching for information using specific terms. Keywords operate by returning results that contain a word or combination of words. However, parties should not infer that the delivery of a result means that the documents are relevant because the keyword used can have different meanings based on how the term is used. Thus, when parties elect to locate documents by way of keywords, the selection of the appropriate terms is critical. In conjunction with constructing the appropriate terms, the parties should seek to construct a process and protocol to avoid the issues mentioned above in relation to keyword searching.[43]
III. Document Review and the Black Art of Duplicate Documents
In the glossary the Rules discuss the reduction of documents that have to be reviewed by lawyers. One way is the process of identifying and removing duplicate documents from a collection of documents so that one unique copy of each document remains.[44] Several tools are available to counsel to ‘de-duplicate’ documents. In the paper world the process of ‘de-duplication’ required looking at documents to ascertain if they were duplicates. The tools for ‘de-duplication’ make the identification of duplicates more effectively. This, and other aspects of reduction by the use of technology, assist and streamline document review which is the largest cost of the discovery process.
Some lawyers are still using the same practices that they used when reviewing paper documents adding unnecessary cost and burden to the discovery process. It is not unknown for the document review process to be carried out by printing out hardcopies of all the electronic material and then laboriously reading through document by document. For the reduction of the costs of discovery and to maintain the emphasis upon proportionality it is important to reduce the volume of documents for lawyers to review. Much of the information that may be reviewed will be irrelevant or redundant duplicated information and the solution is to address removing or ‘sieving’ the information prior to starting the review. The key to ensuring this process transacts seamlessly is for the parties to discuss early on how they will go about identifying duplicate documents.
IV. Additional Solutions to Streamline the Discovery Process and Reduce the Burden and Cost to the Parties
Technology aided techniques as solutions to reduce the burden and cost and some of the strategy are suggested in the checklist.
These include:
1) concept searching;
2) clustering technology;
3) predictive coding of document prioritisation technology;
4) e-mail threading;
5) near duplicate identification;
6) native file review.
Concept searching can be useful when large volumes have to be examined and the search attempts to match results with the query conceptually. The methodology is based not upon keywords but upon the subject matter of the document paragraph or sentence. Concept searching adds additional information to the very basic keywords as it evaluates both words and the context in which they appear.
Clustering technology can bring cost savings in the document review phase. It works by clustering groups of documents, identifying conceptually alike documents and breaking them up into groups of similar documents. The technology is calculated through the mathematical relationship between the text context of the documents.
There is an advantage with the process in that similar issues can be investigated at the same time instead of reviewing different documents throughout the document review set. Predictive coding or document prioritisation technology is particularly useful in the document review process and may produce accurate results especially when there are large volumes. An initial document set can be reviewed by someone knowledgeable about the matter. The same irrelevancy calls are then carried forward to the remainder of the document set based on the results of the sample set. The software then prioritises or ranks the remainder of the documents based on the decisions made on the same documents which allows the most relevant documents to be identified first. An important feature is that the initial review must be carried out by someone with an intimate knowledge of the case at hand.
Many e-mails contain earlier messages and are constructed in the form of a thread or a chain. As the majority of information for discovery purposes comprises e-mail, e-mail threading technology is essential to respond to the problems caused by these chains. By identifying the end point of the e-mail chain, redundant e-mails do not have to be reviewed. Again the benefit of the technology is in the review exercise where parties can focus on the entirety of the e-mail exchange instead of coming across many duplicated parts of the same exchange. The technology allows for parties to move through e-mails more quickly and allows for accurate assessment if they focus upon the e-mail exchange in its entirety.
Near duplicate identification is not mentioned in the particular methods and strategy section in clause 3(2)(a)(ii) of the checklist but it is an important method to assist in proving the costs and accuracy of the document review. Near duplicate technology identifies documents that have similar content although not an exact duplicate. The technology groups all of the near duplicates together so they can be reviewed at the same time allowing the reviewer to quickly focus on the differences and move through the documents more quickly and accurately. E-mail threading and near duplicate technology can be used on paper documents as well as e-documents. However the accuracy of the paper documents will depend upon the quality of the text searchable content or OCR (optical character recognition) when the document is scanned.
Finally native file review allows lawyers to view documents in the format in which they were intended to be viewed. Spreadsheets and databases for example may only be able to be accurately assessed for their native applications. This can create considerable cost savings. Converting all documents to PDF prior to the document review (rather than after it) will usually add unnecessary expense to the discovery process. It will usually be more efficient to review documents in their native file format and then only convert the relevant documents to PDF for the electronic exchange of documents.
The discovery checklist and the listing and exchange protocol do not, of course, stand alone. The checklist in fact is part and parcel of the preparation for the first case management conference (8.11).
It is at the case management conference that the judge may either make an order dispensing with discovery or make an order for standard discovery or make an order for tailored discovery setting out the categories or other method of classification by which documents are to be identified. Tailored discovery is clearly cost related (8.9(a)) and it is implicit that all parties including the judicial officer should have the knowledge of the benefits, advantages and disadvantages of the various documents sorting and document review technologies that are available. At times, depending upon the nature of the documents and their extent, such knowledge or awareness is going to have to be detailed and specific. It is the view of the writers that some form of judicial education process in the operation of the various review technologies is going to be required and some of that will have to be quite detailed when it comes to assessing issues of cost and proportionality.[45] It is noted that the checklist makes specific reference to the issue of whether or not specialist assistance may be required to locate documents sufficiently and accurately. It is suggested that this specialist assistance will probably be in the form of a lawyer who has specialised technology skills in the discovery process. Such specialist assistance is going to have to be aware of the legal requirements of discovery, relevance, privilege and the like along with a good working knowledge of the rules together with an intimate knowledge of the appropriate technologies that may be available and can be used.
V. Conclusion
Technology has created problems in the discovery arena by vastly extending the scope of potential discovery but it may also be a solution to these increasing volumes. The technology must be used efficiently and effectively to enable 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 in the courtroom. However the main advantage may be seen as the cost benefits that it can bring at the initial stages.
Few firms will have the volume of litigation to equip themselves with all the possible tools to assist in their discovery obligations. Service providers or the specialist assistance referred to in the checklist may therefore assist with the discovery process. For law firms this will reduce any potential costs or infrastructure rearrangements that may be necessary. However, it must be made clear, and it will probably be apparent from the discussion that has gone before, that the particular methods of discovery will depend upon the case in hand. Different products may be more relevant to the different parts of the discovery process. One thing is clear and it is that lawyers and judges are going to have to become intimately aware of the technologies that are available and of the technological processes that can underlay the discovery process if the advantages of cost reduction and proportionality that underlie the rules are to be achieved.
His Honour Judge David Harvey was appointed as a District Court Judge in New Zealand in 1989. He has been closely involved with Information Technology initiatives involving the judiciary undertaken by the New Zealand Department for Courts, including the development of trial management software. Judge Harvey is also consultant editor for Butterworths “Electronic Business and Technology Law” and a member of the Editorial Board for Butterworths “Technology Law Forum” and is a part-time lecturer at the Faculty of Law, University of Auckland, teaching Law and Information Technology.
Daniel B. Garrie is a Partner and General Counsel for Law and Forensics LLC with an international reputation as an e-discovery specialist. See www.lawandforensics.com. He has authored over a 90 articles, contributed to six books, and is the lead author on a text book entitled E-Discovery & Dispute Resolution, published by Thomson.
[1] The abbreviation HCR is used for references to the High Court Rules.
[2] HCR 8.2..
[3] HCR 8.3.
[4] HCR 8.4…
[5] Ibid.
[6] HCR 8.11.
[7] Ibid..
[8] HCR 8.12.
[9] HCR 8.7.
[10] HCR 8.8.
[11] HCR 8.9.
[12] HCR 8.8
[13] HCR 8.10.
[14] HCR 8.14.
[15] HCR 8.15,
[16] HCR 8.27.
Counsel can realize substantial monetary and time savings if they implement a technology system that allows for easy search, extraction and production of documents as set-forth in the statue. Since technology improves rapidly, parties seeking system recommendations can e-mail Daniel Garrie (dgarrie@lawandforensics.com).
[17] It is noteworthy that the reform of discovery rules is not unique to New Zealand. Australia, England, Canada, and the United States have reformed their discovery rules albeit to varying degrees in an attempt to reduce costs and delays and to lessen the tactical use of discovery.
[18] Rules Committee Consultation paper: Proposals for reform of the law of discovery including electronic discovery and inspection 2.10 at paragraph 18
[19] Rules Committee Consultation paper: Proposals for reform of the law of discovery including electronic discovery and inspection 2.10 at paragraph 18
[20] See above n. 2.
[21] HCR 8.10
[22] Part 3 Glossary Note also R 1.3 which defines a ‘document’ as inter alia ‘information electronically recorded or stored, and information derived from that information’
[23] Part 3 Glossary
[24] Part 3 Glossary
[25] Part 3 Glossary
[26] HCR 8.12(4) – (6)
[27] Ibid.
[28] Ibid.
[29] Clause 8(5)– Listing and Exchange Protocol which provides the following applies in relation to native electronic documents:
(a) electronic documents that do not lend themselves to conversion to PDF (for example, complex spread sheets, databases, etc) may be exchanged in their native electronic format:
(b) parties may agree on a list of electronic file types that do not lend themselves to conversion to PDF.
[30] Part 3 Glossary.
[31] If e-mails are exchanged in native format they can be viewed by opening them in an e-mail client. However if e-mails are exchanged in PDFs an electronic photocopy of the e-mail is created and can only be viewed by looking at the PDF.
[32] Checklist clause 1.1(a)
[33] Checklist clause 1.1(b)
[34] HCR 8.3 and 8.13
[35] Checklist clause 1.1(c)
[36] Checklist clause 1.1(d)
[37] HCR 8.11 and checklist clause 1.1(d)
[38] It is important to emphasise that each party must assess and discuss with the other parties whether that estimated cost is proportionate to the sums in issue or the value of the rights in issue in the proceeding. The overall costs of discovery will be the cumulative costs of each party providing their own discovery, and also the costs of inspecting documents discovered by the other parties. Assessing this overall proportionality may require the parties to share relevant information on a co-operative basis, namely their estimates of the approximate number of hard copy and electronic documents involved, and any particular issues that might impact on the costs of discovering and inspecting the documents.
[39] Rule 8.11
[40] Clause 3(2)(a)(ii) of the checklist lists the methods and includes:
– appropriate keyword searches; and
– other automated searches and techniques for culling documents (including concept searching, clustering technology, -document prioritisation technology, e-mail threading, and any other new tool or technique); and
· a method to be used to identify duplicate documents; and
· whether specialist assistance is required to locate documents efficiently and accurately;
[41] HCR 8.11 Discovery Checklist Part 1 Schedule 9
[42] HCR 8.11 Discovery Checklist Part 1 Schedule 9.
[43] The terms below deal with search and culling documents:
– ‘Clustering’ means grouping documents by identifying conceptually alike documents
– ‘Concept searching’ means a search that attempts to match results with the query conceptually rather than just by identity or similarity of words.
– ‘Document prioritisation technology’ is also known as ‘predictive coding’ and means the technology that analyses the decisions of the human review of a sample set of documents. The software then prioritises or ranks the remainder of documents based on the decisions made on the sample documents which allows the most relevant documents to be identified first.
– ‘E-mail threading’ means the technology that allows the identification of related e-mails in a thread and can identify the e-mail end point and the unique e-mails in the thread.
[44] It states ‘a cryptographic hash function such as the message digest algorithm five (MDA5) may be used to generate a digital fingerprint for an electronic document. The digital fingerprint of a document can then be electronically compared against the digital fingerprint of any other document to determine whether the documents are exact duplicates. Duplication may also be implemented by using a cryptographic hash function applied to a group of documents.
[45] Many judges are pro-active in the field of e-discovery such as Lord Justice Sir Rupert Jackson and Senior Master Stephen Whitaker in England and Magistrate Judge Andrew Peck in the United States.
