reasonable and proportional discovery in the digital paradigm: the role of lawyers and judges in the...

5/26/2018 Reasonable and Proportional Discovery in the Digital Paradigm: The Role of Lawyers and Judges in the Context of the New Zealand Discovery

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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

Judge David Harvey1

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 manypeople 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 litigation 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 havetouched 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

1LLB (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 TheHuron Legal Institute available from The Metropolitan Corporate Counsel at

at p 5.


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Thus one must adopt a horses for courses approach. The extent of discovery will differ

from case to case and the themes of reasonablenessand proportionalityare essential in

the approach to ESI cases and disputes. As was said in Rimkus Consulting Group, Inc. v.

Cammarata3

*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.

Rimkusemphasised 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

donewas proportional to that case and consistent with clearly establishedstandards.4

This approach was considered too amorphous in Orbit One Communications, Inc. v.

Numerex5Corp. which suggested 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-operationin 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).4Ibid. p. 613.

52010 WL 4615547 (S.D.N.Y. Oct. 26, 2010.


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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 Managementthe evaluation of how records management programs

impact electronic records and E-Discovery

2. Identificationthe process of learning the location of all data which is subject to the

duty to preserve or potentially disclose in pending or prospective litigation

6Meet 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-operativeapproach (High Court Rules 8.2) which will be discussed below.


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Preservation\Collection

3. Duty to preserve arises when a party reasonably foresees that information may be

relevant to pending or anticipated litigation

4. Data collectionthe acquisition of electronic information (data)Electronic

information should be collected in a manner that is comprehensive, maintainscontent integrity and preserves form.

Processing\Review\Analysis

5. Electronic Discovery Processingdesigned to accommodate a wide variety of

unstructured data, handle each form in a manner appropriate to its file type and

generate output that is structured in accordance with review requirements that

often vary with law firm practices, client needs and review technology provider

specifications.

6. Document Reviewused to identify responsive documents to produce and

privileged documents to withhold. Improvements in data storage, database and

search technology , and online review functionality are providing increasingly

efficient options for handling the volume of data and streamlining the review

process.

7. Analysisprocess of evaluating a collection of electronic discovery materials to

determine relevant summary information, such as the key topics of the case,

important people, specific vocabulary and jargon (which can vary significantly

between and even within companies) and important individual documents. Analysis

is performed throughout the remainder of the process as new information is

uncovered and issues of the case evolve. Good technology and techniques areessential to effective analysis.

8. Productionthe delivery of responsive, non-privileged documents to opposing

counsel. R. 26(f) sets an expectation that the method and format by which e-data are

to be produced should be considered and negotiated by the parties early in the

discovery process. The New Zealand 2013 Practice Note The Use of Electronic

Bundles in the High Court7sets out detailed criteria for production at trial.

The Electronic Discovery Reference Model - Discussion

The process of discovery is designed to both reduce volume and increase the relevance of

data that is to be available for discovery. The first stage in the process deals with

information management.

A proper information management policyis essential in any organisation even where

litigation is not contemplated, if only for the effective and efficient archiving and retrieval or

information at some future time. It is perhaps the best insurance policy for any potential

litigation to which the organisation may be subject. It is my view that all organisations, and

7HCPN 2013/1 (Civ and Crim)


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especially large ones where there may be increased litigation risk, must have a proper

information management policy and as part and parcel of general legal advice, corporate

counsel or the organisations solicitors should advise them accordingly. A proper

information management or electronically stored information (ESI) policy will pay dividends

in the event of litigation and in the inevitable discovery process. This may be demonstratedby a consideration of what may happen in practice.

One of the enquiries that a Judge should be making at Case Management Conference or

Discovery Conference stage and which counsel must be able to immediately answer is about

the document retention policies of the parties. What are the business practices of the

parties in relation to the creation, storage and destruction of ESI? Proper ESI management

prevents businesses throwing up huge amounts of information in a totally disorganised

state, which is difficult to access and makes finding what is required virtually impossible

without expensive software and review. Software programs that organise documents asthey are generated are not expensive in relation to the huge cost that can be thrown up if

such software are not used.8

Proper document management systems means that businesses, particularly those regularly

exposed to litigation, will be better prepared for the discovery process by having their ESI

well organised and readily searchable. They should create proper and effective information

governance strategies. Courts need to look at being less sympathetic in terms of the orders

they make and the costs sanctions they impose on such entities when they have taken no

steps in this regard.

How effective can judicial scrutiny of document retention policies be? In the English case of

Timothy Duncan Earles v Barclays Bank Plc9the judges criticism of the successful

defendants failure to observe disclosure rules, and the costs sanction imposed, led the bank

to institute a program of internal training in respect of E-Discovery.10

The next stage in the discovery reference model addresses identification of the data that

may be relevant in the proceedings. As I have already indicated, a proper information

management policy will assist in identifying the location of data and enable a process by

which the collection thereof may take place. It is to be remembered that ESI will reside notonly on office computers and servers but also in the Cloud, on PDAs, mobile phones, pagers,

8DuPont conducted an internal review some years ago and found that they had produced three years worth

of data representing 75 million documents, 50 percent of which could have been lawfully deleted at a cost

saving of US$12 million dollars. See Oracle White Paper, Lower E-Discovery Costs through Enterprise Records

and Retention Management (March 2007) (Oracle White Paper) at p 4.

http://www.oracle.com/technetwork/middleware/webcenter/content/records-retention-whitepaper-

130956.pdf(last accessed 5 March 2014)9[2009] EWHC 2500 (Mercantile).

10 For discussion see Chris Dale Costs Penalty for non-compliance with e-disclosure obligations

http://chrisdale.wordpress.com/2009/10/09/costs-penalty-for-non-compliance-with-e-disclosure-obligations/ and Earles v Barclays Bank reported in The Times http://chrisdale.wordpress.com/2009/10/27/earles-v-

barclays-bank-reported-in-the-times/(Both last accessed 5 March 2014)
http://www.oracle.com/technetwork/middleware/webcenter/content/records-retention-whitepaper-130956.pdfhttp://www.oracle.com/technetwork/middleware/webcenter/content/records-retention-whitepaper-130956.pdfhttp://www.oracle.com/technetwork/middleware/webcenter/content/records-retention-whitepaper-130956.pdfhttp://chrisdale.wordpress.com/2009/10/09/costs-penalty-for-non-compliance-with-e-disclosure-obligations/http://chrisdale.wordpress.com/2009/10/09/costs-penalty-for-non-compliance-with-e-disclosure-obligations/http://chrisdale.wordpress.com/2009/10/27/earles-v-barclays-bank-reported-in-the-times/http://chrisdale.wordpress.com/2009/10/27/earles-v-barclays-bank-reported-in-the-times/http://chrisdale.wordpress.com/2009/10/27/earles-v-barclays-bank-reported-in-the-times/http://chrisdale.wordpress.com/2009/10/27/earles-v-barclays-bank-reported-in-the-times/http://chrisdale.wordpress.com/2009/10/27/earles-v-barclays-bank-reported-in-the-times/http://chrisdale.wordpress.com/2009/10/09/costs-penalty-for-non-compliance-with-e-disclosure-obligations/http://www.oracle.com/technetwork/middleware/webcenter/content/records-retention-whitepaper-130956.pdfhttp://www.oracle.com/technetwork/middleware/webcenter/content/records-retention-whitepaper-130956.pdf


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digital memory storage devices and thumb drives and will include all forms of

communication including audio files, e-mails, inter office memos and social media

communications.

Once data has been identified it must be collected and preserved. The acquisition of ESI

from relevant systems is critical and must be done properly even although the dataset may

be a large one. I say this because collection is associated with preservation. Failure to

properly preserve data can result in sanctions at a later stage in proceedings once the issue

of discovery falls under judicial scrutiny. But the collection of data must be done

meticulously and preferably by those who are trained both legally and technologically. It is

also important to recognise that collection, performed within the organisation, could well

give rise to allegations of spoliation and could be compared with putting the fox in charge

of the henhouse.It is for this reason that I suggest that identification and collection be

carried out by a third party.

The next stageprocessing, review and analysisare in the nature of a continuum. The

processing phase allows the party to cull data and remove redundant and/or irrelevant ESI.

Also at this stage ESI is converted into a format that may enable effective review. This phase

will generally involve software tools and the importation of data into other e-discovery

software.

At the same time the review process is being undertaken, counsel or legally trained people

within the law firm will review documents, seeking data that is relevant, relating that data

to the various issues in the case and at the same time consider matters such as privilege or

confidentiality. Once again this will usually involve the use of software review tools which

cuts time and costs in exhaustive manual review. It is a sad fact that even although we are

well advanced into the Digital Age many lawyers conduct discovery of electronic materials

by printing the material out into hard copy and then engaging in manual review. This cannot

be viewed as a cost effective solution and will inevitably result in increased and unnecessary

costs which, with the emphasis on proportionality in E-discovery, cannot be condoned.

It is at this stage, of course, that the analysis process comes into play and, using software

tools, keywords and other forms of search parameters, counsel may analyse data centeredupon the data custodian or issue-based relevance analysis.

One of the ironies arising from ESI lies in the way in which we confront document review. In

the paper paradigm if a party disclosed that it had a building full of lever arch files which

were likely to contain relevant documents, no judge would be heard to say that the cost of

retrieving and reviewing these documents was disproportionate to the amount at stake in

the case, or that the parties would only have to review 60 percent or 70 percent of them. If

the paper documents were there, unless some sampling technique could be agreed, they

usually had to undergo manual human review - the only sure way of searching for relevantpaper documents.


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In the Digital Paradigm computer software is used to eliminate a significant proportion of

ESI from ever being reviewed by a human. Even in small cases, if all the documentation that

was potentially searchable was printed out it would often fill several rooms or even

warehouses.

Document reviewis an important aspect of the factual investigation that is an essential part

of common law litigation. But because of the way in which digital devices create, copy and

store information across numerous platforms, the old methods of manual search and

disclosure that characterised the paper paradigm cannot continue in the digital age. And to

apply McLuhans adage the tools themselves that we have made shape our responses. Or,

to put it another way, as Charles Clark said in the context of protecting copyright material in

the digital paradigm The answer to the machine is in the machine.11

If ESI has not been organised when created, harking back to the importance of document

management and retention, parties need to use digital technologies such as predictive

coding software along with a number of other solutions to search for and reduce the

number of documents that need to be reviewed.

These search methods may mean that perhaps as much as 60 percent or 70 percent of the

documents identified will never be manually reviewed

Counsel and Judges need to gain an understanding of these systems, encourage their use

and be ready to direct them in cases of dispute as reasonable methods of search. This is part

of the wider theme of judicial activism and judicial education in and awareness oftechnological solutions for ESI disputes which I shall discuss later.

By the time theproduction phaseis reached the volume of data will have been substantially

reduced and parties may at this stage start to provide responsive data to the opposing side.

Under normal circumstances there should have been communication and a cooperative

approach adopted by counsel. In the production phase counsel have a duty to continue to

cooperate and act responsibly having regard to the importance of relevance and

proportionality.

Once thepresentation phaseis reached the hard work involved in discovery has beencompleted. Presentation is the culmination of the discovery process where relevant material

has been identified and the parties decided on what information will be used at trial. In New

Zealand the requirements of the Electronic Bundle Protocol will need to be considered.

The New Zealand High Court Rules

11 Charles Clark The Answer to the Machine is in the Machine, in: P. Bernt Hugenholtz (ed.), The Future of

copyright in a digital environment : proceedings of the Royal Academy Colloquium organized by the Royal

Netherlands Academy of Sciences (KNAW) and the Institute for Information Law ; (Amsterdam, 6-7 July 1995) ,(Kluwer Law International, The Hague, 1996).


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Background

The New Zealand High Court Rules Committee, in recognition of the issues raised by the

Digital Paradigm, recommended changes to the discovery rules which are embodied in the

High Court Amendment Rules (No 2) 2011the new discovery ruleswhich make

significant changes and additionas 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 with which parties must consult and depending on the specific

scenario may be required to make standard or tailored discovery. The High Court

Amendment Rules also introduced a new listing and exchange protocol with inspection to

take place by way of electronic exchange. The new High Court Rules for Discovery cameinto force on 1 February 2012.

What the Rules Provide

The new Rules were designed with the intent of reducing the disproportionate costs and

delays that can be caused by discovery.12 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-operateto ensure that discovery is proportionate and facilitated byagreement on practical arrangements.13

2. Once litigation is reasonably contemplated, prospective parties should take

reasonable steps to preserve documents that are reasonably likely to be

discoverable14

12The abbreviation HCR is used for references to the High Court Rules.

13 HCR 8.2. R. 8.2 provides:

Co-operation

1) The parties must co-operate to ensure that the processes of discovery and inspection are

(a) proportionate to the subject matter of the proceeding; and

(b) facilitated by agreement on practical arrangements.2) The parties must, when appropriate,

(a) consider options to reduce the scope and burden of discovery; and

(b) achieve reciprocity in the electronic format and processes of discovery and inspection; and

(c) ensure technology is used efficiently and effectively; and

(d) employ a format compatible with the subsequent preparation of an electronic bundle of documents for use at

trial.

Moreover, the term practical is at the mercy of the application of common cents or sense by the parties. However, it can be

read to require both sides at a minimum to be able to articulate their respective systems specific to the litigation in the proceedings.14

HCR 8.3. R. 8.3 provides

Preservation of documents

(1) As soon as a proceeding is reasonably contemplated, a party or prospective party must take all reasonable steps to preserve

documents that are, or are reasonably likely to be, discoverable in the proceeding.

(2) Without limiting the generality of subclause (1), documents in electronic form which are potentially discoverable must be

preserved in readily retrievable form even if they would otherwise be deleted in the ordinary course of business.

Counsel should make sure that at a minimum the parties directly involved in the litigation preserve relevant data, which often

includes documents and emails. Where the parties systems are not under their direct control, counsel should take reasonable steps to

ensure the third parties preserve the documents (i.e., if a client is using Google Apps to send email and author documents. In the third-


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3. Parties must make initial disclosure of documentsreferred to in a pleading or used

when preparing the pleading.15

The disclosure must be made at the time that the

pleading is served.16

4. Parties must discuss and endeavour to agree on an appropriate discovery order

prior to the first case management conference.17

The discovery order must addressthe matters set forth in the new discovery checklistin the rules.

18

5. At the case management conference, the Judge may dispense with the discovery,

or order standard discovery, or order tailored discovery. 19 Where standard

party control situation, counsel should advise their clients not to delete any such emails and documents and contact to resolve additional

issues as appropriate.) Id.15

HCR 8.4.. R. 8.4 provides:

Initial disclosure

(1) After filing a pleading, a party must, unless subclause (2) applies, serve on the other parties, at the same time as the service of

that pleading, a bundle consisting of

(a) all the documents referred to in that pleading; and

(b) any additional principal documents in the filing partys control that that party has used when preparing the pleading and onwhich that party intends to rely at the trial or hearing.

(2) A party need not comply with subclause (1) if

(a) the circumstances make it impossible or impracticable to comply with subclause (1); and

(b) a certificate to that effect, setting out the reasons why compliance is impossible or impracticable, and signed by counsel for that

party, is filed and served at the same time as the pleading.

(3) A party acting under subclause (2) must, unless the other parties agree that initial disclosure is not required, or that a longer

period is acceptable, either serve the bundle referred to in subclause (1) within 10 working days from the service of the pleading or apply

for a variation of that requirement within that period.

(4) If a party fails to comply with subclause (1) or (3), a Judge may make any of the orders specified in rule 7.48.

(5) Despite subclause (1), a party does not need to disclose any document in which the party claims privilege or that a party claims to

be confidential.

(6) Despite subclause (1), a party does not need to disclose any

document that either

(a) is the subject of a claim of public interest immunity; or

(b) is reasonably apprehended by the party to be the subject of such a claim.(7) Despite subclause (1), a party does not need to include in a bundle served by that party any document contained in a bundle

already served by any party or any document attached to an affidavit already filed in court.

(8) The bundle of documents may be served either electronically or as a bundle of copies in hard copy form.

(9) If an amended pleading is filed prior to the making of a discovery order, this rule applies to that amended pleading if it either

(a) refers to documents not referred to in any earlier pleading filed by the party who files the amended pleading;

or

(b) pleads additional facts.16

Ibid. Rule 8.4(4) (see note 4 above) provides that failure to comply with obligations under R 8.4(1) or (3) enables Judge to make an

order under R. 7.48 which gives the Judge the power to make any order that he or she thinks just. A non-exclusive list of the types of order

that a Judge may make are set out in R. 7.48(2)(a)(g) -

(a) that any pleading of the party in default be struck out in whole or in part:

(b) that judgment be sealed:

(c) that the proceeding be stayed in whole or in part:

(d) that the party in default be committed:

(e) if any property in dispute is in the possession or control of the party in default, that the property be sequestered:(f) that any fund in dispute be paid into court:

(g) the appointment of a receiver of any property or of any fund in dispute.17

HCR 8.11. R 8.11 provides:

Preparation for first case management conference

(1) The parties must, not less than 10 working days before the first case management conference, discuss and endeavour to agree on

an appropriate discovery order, and the manner in which inspection will subsequently take place, having addressed the matters in the

discovery checklist in accordance with Part 1 of

Schedule 9.

(2) The joint memorandum, or separate memoranda, filed under rule 7.4 must, in addition to the matters required to be addressed

under rule 7.4(3), set out the terms of the discovery order that the Judge is requested to make and the reasons for a discovery order in

those terms.

(3) If the parties agree to vary the listing and exchange protocol set out in Part 2 of Schedule 9, they need advise the Judge only that

variation has been agreed, not the details of that variation.18

Ibid..19

HCR 8.12. R. 8.12 provides:

Orders that may be made

(1) At the case management conference the Judge may, under rule

8.5, make


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discovery is required by the Judge, it entails the production of documents that the

party relies upon and documents that adversely affect that partys, or another

partys case.20

6. Tailored discovery21

is presumed to apply instead of standard discovery if the costs

of standard discovery are disproportionate to the matters at issuein the followingsituations:

a. When the costs of standard discovery are disproportionate to the matters at

issue;

b. Either party makes allegations of fraud or dishonesty;

c. The sums at issue exceed $NZ 2.5 million dollars;

d. Where the parties agree to tailored discovery. 22

Tailored discovery can involve more or less discovery than standard discovery.23 In

addition, tailored discovery requires discovery to proceed by category or through a r

method that facilitates the identification of particular documents. 24

7.

Parties have a statutory obligation to conduct a reasonablesearch for discoverabledocuments.

25

(a) an order dispensing with discovery; or

(b) an order for standard discovery; or

(c) an order for tailored discovery, setting out categories (by, for example, subject headings and date periods) or another method of

classification by which documents are to be identified.

(2) The discovery order may

(a) incorporate the listing and exchange protocol set out in Part 2 of Schedule 9; or

(b) vary that protocol; or

(c) contain other obligations that are considered appropriate.

(3) The discovery order may include specific directions as to the manner of discovery.

(4) A discovery order does not require a party to discover electronically stored information that is not primary data.(5) Despite subclause (4), the Judge may order a party to discover electronically stored information that is not primary data if the

Judge is satisfied that the need for, and the relevance and materiality of, the non-primary data sought justify the cost and burden of

retrieving and producing that data.

(6) For the purposes of this rule, primary data means active data and readily retrievable archival data..20


Standard discovery

Standard discovery requires each party to disclose the documents

that are or have been in that partys control and that

are

(a) documents on which the party relies; or

(b) documents that adversely affect that partys own case;

or

(c) documents that adversely affect another partys case; or

(d) documents that support another partys case. 21

HCR 8.8. R. 8.8 provides: Tailored discovery. Tailored discovery must be ordered when the interests of justice require an orderinvolving more or less discovery than standard discovery would involve.22


Presumption as to tailored discovery

It is to be presumed, unless the Judge is satisfied to the contrary, that the interests of justice require tailored discovery in

proceedings

(a) where the costs of standard discovery would be disproportionately high in comparison with the matters at issue in the

proceeding; or

(b) that are on the commercial list, or on the swift track (if an order is made under rule 8.5(3)); or

(c) that involve 1 or more allegations of fraud or dishonesty; or

(d) in which the total of the sums in issue exceeds $2,500,000; or

(e) in which the total value of any assets in issue exceeds $2,500,000; or

(f) in which the parties agree that there should be tailored discovery.23

HCR 8.8see above Note 10.24


Obligation of party ordered to make tailored discovery

Tailored discovery requires a party against whom it is ordered to disclose the documents that are or have been in that partys control

either in categories as indicated in clause 3(2) of Part 1 of Schedule 9 or under some other method of classification that facilitates the

identification of particular documents.


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8. Documents must be listed in accordance with a new listing and exchange protocol

set out in Part 2 Schedule 9 of the Rules, unless the parties agree otherwise.26

9. Inspection of documents occurs by way of an electronic exchange of documents,

unless the court orders otherwise. 27 This means that paper documents must be

scanned electronically so that electronic copies can be exchanged.

25 HCR 8.14. R. 8.14 provides:

Extent of search

(1) A party must make a reasonable search for documents within the scope of the discovery order.

(2) What amounts to a reasonable search depends on the circumstances, including the following factors:

(a) the nature and complexity of the proceeding; and

(b) the number of documents involved; and

(c) the ease and cost of retrieving a document; and

(d) the significance of any document likely to be found; and

(e) the need for discovery to be proportionate to the subject matter of the proceeding.26

HCR 8.15, 8.16. provides:

Affidavit of documents(1) Each party must file and serve an affidavit of documents that complies with this rule, subject to any modifications or directions

contained in a discovery order.

(2) In the affidavit of documents, the party must

(a) refer to the discovery order under which the affidavit is made; and

(b) state that the party understands the partys obligations under the order; and

(c) give particulars of the steps taken to fulfil those obligations; and

(d) state the categories or classes of documents that have not been searched, and the reason or reasons for not

searching them; and

(e) list or otherwise identify the documents required to be discovered under the order in a schedule that complies

with rule 8.16 and Part 2 of Schedule 9; and

(f) state any restrictions proposed to protect the claimed confidentiality of any document.

(3) The affidavit may be in form G 37.

(4) Each party must file and serve the affidavit of documents within such time as the court directs or, if no direction is made, within

20 working days after the date on which the discovery order is made. R. 8. 16 provides Schedule appended to affidavit of documents

(1) The schedule referred to in rule 8.15(2)(e) must, in accordance with that discovery order, list or otherwise identify documentsthat

(a) are in the control of the party giving discovery and for which the party does not claim privilege or confidentiality:

(b) are in the control of the party giving discovery for which privilege is claimed, stating the nature of the privilege claimed:

(c) are in the control of the party giving discovery for which confidentiality is claimed, stating the nature and extent of the

confidentiality:

(d) have been, but are no longer, in the control of the party giving discovery, stating when the documents ceased to be in that

control, and the person who now has control of them:

(e) have not been in the control of the party giving discovery but which that party knows would be discoverable

if that party had control of them.

(2) Subject to Part 2 of Schedule 9, documents of the same nature falling within subclause (1)(b), (d), or (e) may be described as a

group or groups.

(3) The description of documents for which privilege is claimed under subclause (1)(b) must be sufficient to inform the other parties

of the basis on which each document is included in a group under subclause (2).

(4) The schedule must include documents that have previously been disclosed under rule 8.4.

(5) The schedule need not include(a) documents filed in court; or

(b) correspondence that may reasonably be assumed to be in the possession of all parties.27


Inspection of documents

(1) As soon as a party who is required to make discovery has filed and served an affidavit of documents, that party must, subject to

rule 8.28, make the documents that are listed in the affidavit and that are in that partys control available for inspection by way of

exchange.

(2) Documents must be exchanged in accordance with the listing and exchange protocol in Part 2 of Schedule 9.

(3) If a discovery order exempts a party from giving discovery and inspection electronically, that party must make the documents

listed in the affidavit of documents available for inspection in hard copy form, and must promptly make those documents available for

copying if requested.

(4) A party who has received a document electronically under this rule may, on giving reasonable notice in writing, require the

person giving discovery to produce the original document for inspection.

(5) This rule also applies to documents listed in an affidavit filed and served under rule 8.20 or 8.21.

(6) This rule is subject to the terms of any discovery order made under rule 8.5.

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 email Daniel Garrie ([email protected] ).
mailto:[email protected]:[email protected]:[email protected]:[email protected]


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In addition to these 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 dialog 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 courseof the proceedings.28

The New Zealand E-Discovery Checklist in Flowchart Form

28It 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.

IdentifyChecklist clause 1.1(a)

- Review pleadings

- List relevant issues

-Identify relevant categories ofdocuments

LocateChecklist clause 1.1(b)

- Hard copy and e-docs

-Other agents (e.g. lawyers, accountants)

Duty to preserve (rules 8.3 and 8.13)

AssessChecklist clause 1.1(c)

-Volume and ease of assembly

- Methods

- Time and cost involved

- Proportionality


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Technology Use

A theme that runs through the new discovery rules is the need for efficient and effective use

of technology. In its consultation paper the New Zealand Rules Committee observed that

delay and costs can be reduced by moving to an electronicdiscovery regime while

the efficiency of the discovery process and the ability to achieve a just outcome can

be improved. It was further noted 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.29

HCR 8.2(2)(c) requires the parties to ensure technology is used efficiently and effectively

where appropriateand applies to a number of different stages in the discovery process

reflecting the focus of the Rules Committee. Although it is not necessary to use electronic

methods to find, identify, locate, retrieve or review documents these methods may in fact

help reduce costs in some cases. Thus the use of technology although not mandated is

available as an option. Once again, elements of reasonableness and proportionality will

come into play.

Recognising that the Digital Paradigm imposes new concepts that underly digital

information, the Rules include a helpful glossary of technical terms. The glossary defines

metadata as data about data. It states

29 Rules Committee Consultation paper: Proposals for reform of the law of discovery including electronic

discovery and inspection 2.10 at paragraph 18.

DiscussRule 8.11 and checklist clause 1.1(d)

- Proportionality

- Protocol

- Duty to seek to agreement

Memorandum

Rule 8.11

Aim for joint memorandum

- If separate, justify position


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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 maybe created manually

by a user (application metadata) depending upon the circumstances of a case,

metadata may be discoverable.

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.

A PDF file may be either a searchable image file or an unsearchable image file.

The Rules also differentiate betweenprimarydata and non-primarydata. Primary data isdata that is readily retrievable, whereas non-primary data is generally archival data that is

not readily retrievable. Many organisations use backup tapes to make a full copy of an

employees electronic data for disaster recoverypurposes. These backup tapes contain

archival data and are not readily retrievable and are not primary data for the purposes of

the rules.

Another important concept is that of native format. The glossary to the Rules describes

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. Lawyers will often

create a document in Microsoft word and then convert it into a PDF before emailing the

document. This is because the PDF preserves the original formatting and cannot be edited.

It also eliminates much of the metadata underlying the word document. The native format

of the document in such a case is the Microsoft word format and not the PDF format.

Documents can be exchanged electronically either in native format or in PDFs. If emails are

exchanged in native format they can be viewed by opening them in an email client.

However if emails are exchanged in PDFs an electronic photocopy of the email is created

and can only be viewed by looking at the PDF.

The discovery check list under Listing and Exchange Requirements states

to reduce unnecessary costs of listing documents parties are encouraged to:

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

b) Use the extracted metadata from native electronic documents instead of

manually listing documents; and

c) Convert documents to image format only when it is decided they are to be

produced for discovery; and

d)

If document images are to be numbered, only number those images if they are tobe produced for discovery.


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The discovery check list in addressing the issue of tailored discovery identifies methods and

strategies for locating documents. The parties must seek agreement on the methods and

strategies that are appropriate to conduct a reasonable and proportionate search for the

documents that are identified including the following:

a) Appropriate key word searches;

b) Other automated searches and techniques for culling documents including concept

searching, clustering technology, document prioritisation technology, email

threading, and any other new tool or technique; and

c) A method to be used to identify duplicate documents; and

d) Where the specialist assistance is required to locate documents efficiently and

accurately.

Technology and Document Review

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 the information prior to starting the

review. Technology aided techniques are a solution to reduce the burden and cost and

some of the strategy are suggested in the check list. These include:

1) Key Word Searching

2) Concept searching;

3) Clustering technology;

4) Predictive coding or document prioritisation technology;

5) Email threading;

6) Near duplicate identification;

7)

Native file review.

These technology solutions each require a brief explanation.

Key Word Searchingis a fairly blunt instrument. Key words create a black or white scenario

based upon whether or not a document contains a word or does not. The difficulty with key

word searching is that it may result in irrelevant documents being identified because the key

word selected may have different meanings or context to what is desired. The important

thing to remember with key wording searching is that the construction of the search itself is

critical together with an understanding of the limitations of the method. Ideally the

construction of the search string or key words should be discussed with other parties so thatthe key words may be agreed. Because of its limitations, key word searching is not an ideal


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method of cutting and filtering documents and other automated searches may be

preferable. But, under the principles of the rules, if key word searching is to be used it is

important to agree an approach with the other side to avoid conflict. I shall discuss further

aspects of keyword searching in my discussion ofJudicial Approaches to Stages in the E-

Discovery Process below.

Concept searchingmeans a search that attempts to match results with the query

conceptually rather than just by identity or similarity of words and 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 key words but upon the subject matter of

the document paragraph or sentence. Concept searching adds additional information to the

very basic key words as it evaluates both words and the context in which they appear.

Clustering technologymeans grouping documents by identifying conceptually alike

documents and can bring cost savings in the document review phase. Clustering groups

documents by identifying conceptually alike documents and the technology breaks them up

into groups of similar documents. The technology is calculated through the mathematical

relationship between the text and context of the documents.

There is an advantage with this process in that similar issues can be investigated at the same

time instead of reviewing different documents throughout the document review set.

Predictive codingor document prioritisationtechnology a 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 in a larger dataset based on the

decisions made on the sample documents which allows the most relevant documents to be

identified first. It is particularly useful in the document review process and may produceaccurate results especially when there are large volumes.

An initial document set can be reviewed by someone knowledgeable about the matter. This

person or group will be the lawyer(s) conducting the initial review, thus assisting in making a

more informed, consistent and accurate review of information. 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.

Email threading means the technology that allows the identification of related emails in a

thread and can identify the email end point and the unique emails in the thread. Many

emails contain earlier message and are constructed in the form of a thread or a chain. As

the majority of information for discovery purposes comprise as email,email threading

technology is essential to respond to the problems caused by these chains. By identifying

the end point of the email chain, redundant emails 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 email exchange instead of coming across many duplicated parts of the same exchange.

The technology allows for parties to move through emails more quickly and allows for

accurate assessment if they focus upon the email exchange in its entirety.


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Near duplicate identificationis not mentioned in the particular methods and strategy

section in clause 3(2)(a)(ii) of the check list, 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. Email 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.

The check list refers to methods used to identify duplicate documents. Another way of

addressing this is by de-duplication. This is referred to in the glossary as the process of

identifying and removing duplicate documents from a collection of documents so that one

unique copy of each document remains. The glossary then becomes quite technical. It

states a cryptographic hash function such as the message digest algorithm five (MDA5) maybe 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.

In the paper world the process of duplication required visually sighting documents to

ascertain if there were duplicates. The technology makes the identification of duplicates

more effectively. Once again it is important that the parties discuss how they should

identify duplicate documents.

Finally native file reviewallows 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 have considerable cost saving,

thus emphasising the checklist requirement of reducing the unnecessary costs of listing

documents. 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 check list and the listing and exchange protocol do you not, of course, standalone. The check list in fact is part and parcel of the preparation for the first case

management conference (HCR 8.11).

E-Discovery Advocacy

As I have already suggested, a new discovery mindset is required on the part of counsel.

There are a number of ways in which counsel may approach discovery, taking into account


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the requirements to meet, consult and co-operate and the emphasis upon reasonableness

and proportionality.30

1. Co-operation - True cooperation among parties will minimize the need for court

intervention regarding discovery issues, so that the real focus can be on the merits of

the underlying case. If there is a disagreement about issues but the parties

demonstrate their efforts to cooperate, the court can rule more easily and more

effectively, and the court may view parties perceived as reasonable in a more

credible light.

2. Involve the Court Early - Early court involvement can help control the cost of

discovery and help parties avoid costly mistakes, through guidance and implicit or

express approval of protocols, or decisions regarding solutions for problems such as

spoliation, among other things.

3. Understand the tools that are available to conduct properly conduct discoveryIt is

for this reason that I have discussed the use of technology. In the new discovery

paradigm it is axiomatic that both counsel and the Judge are fully conversant with

the available technology to achieve the goals of discoveryreasonableness,

proportionality and relevance.

4. Support arguments or suggestions with proper information - this is associated with

item 3 above. Technological knowledge as well as a proper understanding of the

legal rules and issues underlying a case is essential in the new discovery paradigm.For example, an assertion regarding the burdensomeness of discovery should be

backed up with specific information about the actual costs involved and supporting

documentation showing the basis for those costs, such as invoices or vendor

proposals. A judge might not understand, for example, why corporate data storage is

so expensive, when he himself can buy an inexpensive drive with large capacity.

Parties should also be prepared to offer information as to whether there are less

costly alternatives.

5. Assist the Court with Expert Guidancedont be afraid to reach out to a specialist in

the e-discovery field. Even the most even the most sophisticated Judges do not

understand all the technical details related to data storage and retrieval or the

variety of technologies available to search, analyze, and review information.

6. Emphasise Proportionality and relate to Damages and DefencesProportionality is

directly related to the scope of discovery. Proportionality will be related to a number

30 These suggestions are taken from Ten Practical Tips in E-Discovery Advocacy Huron Consulting

http://www.huronconsultinggroup.com/Insights/Perspective/Legal/~/media/Insights-Media-Content/PDF/Legal/10TipsForEDiscoveryAdvocacy_r6.pdf
http://www.huronconsultinggroup.com/Insights/Perspective/Legal/~/media/Insights-Media-Content/PDF/Legal/10TipsForEDiscoveryAdvocacy_r6.pdfhttp://www.huronconsultinggroup.com/Insights/Perspective/Legal/~/media/Insights-Media-Content/PDF/Legal/10TipsForEDiscoveryAdvocacy_r6.pdfhttp://www.huronconsultinggroup.com/Insights/Perspective/Legal/~/media/Insights-Media-Content/PDF/Legal/10TipsForEDiscoveryAdvocacy_r6.pdfhttp://www.huronconsultinggroup.com/Insights/Perspective/Legal/~/media/Insights-Media-Content/PDF/Legal/10TipsForEDiscoveryAdvocacy_r6.pdfhttp://www.huronconsultinggroup.com/Insights/Perspective/Legal/~/media/Insights-Media-Content/PDF/Legal/10TipsForEDiscoveryAdvocacy_r6.pdf


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of aspects of the case, not the least of which may be the likely recovery . In

particular, plaintiffs are likely to be asked their views on the amount of their likely

recovery or, in certain cases such as human rights claims, the importance of the

issues at stake. Defendants may be asked about their theories of defence. For

example, in a class action, whether the defendant plans to defend based on factsrelated to the named plaintiffs or on a broader basis should affect the scope of

discovery and could also affect the number of custodians for whom information is

preserved.

7. Minimise Disputes about Privilege - Privilege disputes primarily arise in two contexts:

disputes over whether documents are, in fact, protected by privilege or the work

product doctrine and disputes related to purported privilege waiver. Both of these

issues are best addressed by action before a hearing is actually needed. When the

existence of the privilege is disputed, privilege lists come into play, and a court mayneed to conduct an in camerareview. The proliferation of data in todays world has

resulted in commensurately large populations of documents withheld for privilege,

which can be a problem for the reviewing court. Mechanically generated privilege

lists often do not contain sufficient information for opposing parties (or the court) to

determine the privileged nature of documents, and the volume of documents

subject to potentialin camerareview can be daunting. One way to minimize these

issues might be to develop a privilege protocol that will limit the number of

documents included in a privilege list or potentially subject to in camerareview,

ideally with agreement from the other side.

8. Use Common Sensecommon sense and reasonableness often go hand in hand. In

the new discovery paradigm hearings should be conducted with an educational

rather than an adversarial perspective, in order to educate judges regarding what

makes sense. Most judges are interested in a common sense solution if one is

offered.

One example that can be helpful in a variety of scenarios is tiered or phased

discovery. In a situation where a party is seeking relief to limit its preservation, for

example, different degrees of preservation for different custodians might be a

creative solution, or short term preservation until completion of the first wave of

discovery, after which the parties can discuss whether ongoing preservation beyond

that is required. Similarly, when there is a dispute regarding the burdensomeness of

discovery, sequenced discovery can be helpful. Once the requesting party has

examined what was produced in the first phase, the parties may agree on less future

production than was originally contemplated (fewer custodians, unnecessary

categories of documents, etc.).


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9. Suggest Solutions When Spoliation is an Issue - When there has been spoliation of

evidence, the injured partys first instinct is often to move for sanctions, which may

sometimes be appropriate. However, as an alternative or at least as a fallback

position, it can be a good idea to suggest remedial measures. From the perspective

of the party accused of destroying evidence, offering to take steps to remedy thesituation as best possible makes good senseit demonstrates good faith and gives

the court the option of a less severe penalty. Examples could include finding other

sources for the lost information, even if those sources might not otherwise have

been discoverable, using forensic experts to reconstruct data, extra depositions or

other forms of discovery, and more. Because these measures can be costly, it is likely

that the party in the wrong will be required to bear the expense. These measures

should be requested as early in the case as possible.

Courts often see spoliation sanctions requests after the discovery period is closed, atthe point at which the ability to reopen the issue and level parties positions is

limited. This puts the judges in a difficult situation

10.Know the Law Applicable in the Jurisdictionin litigation involving multi-national

disputes or parties, discovery issues may arise in a number of jurisdictions. There

may be subtle distinctions in discovery rules between national jurisdictions and in

some countries, such as the United States, there may be differing rules between

states and even between Federal circuits. In addition, understanding the case law in

the relevant jurisdiction will help parties structure their arguments to address each

aspect of the appropriate analysis (for example, whether there was spoliation, the

partys efforts to preserve, whether curative options are available, the level of

culpability, and the actual nature and degree of prejudice caused by the spoliation).

Judicial Involvement

I have gone into some detail about principles that lie behind new discovery regimes and the

issue of electronic discovery and some of the techniques and tools that are available

because I want to provide a context for what I consider should be a higher level of judicial

involvement in the E-Discovery process than merely hearing arguments and making adecision from time to time.

Because of the requirements of reasonableness and proportionality, and because E-

Discovery is a processthat goes through a number of stages, judicial involvement is

important in ensuring that the parties remain on the road. If they should depart from the

established procedures it may well be difficult for a judge to require them to roll back to a

particular point. Thus judicial superintendence and discipline will assist in keeping the

parties and the process focussed.


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The Rationale for Active Judicial Involvement

The central issue in almost all discovery management is the determination of scope. A

common theme of all the discovery rules is securing the just, speedy, and inexpensive

determination of the case.

In a recent article published by the University of Kansas Law Review, Professor Steven

Gensler and Judge Lee Rosenthal argue that many of the eDiscovery challenges facing

lawyers and litigants could be addressed in a more efficient and cost-effective manner

through active case management by judges. According to Professor Gensler and Judge

Rosenthal, a meaningful Federal Rules Rule 16 conference with counsel can enable the

court to ensure that the lawyers and parties have paid appropriate attention to planning for

electronic discovery.31Case Conferencing is not restricted to the United States and is a

feature of most discovery regimes in the Common Law world.

In the United States a reference in the Rules to the administration of proceedings has

been construed to recognize an affirmative duty of the court to exercise the authority

conferred by the rules to ensure that civil litigation is resolved not only fairly, but also

without undue cost or delay. As officers of the court, counsel share this responsibility with

the judge to whom the case is assigned.

Thus, in the United States the reference to administer is designed to enable judges to

elicit better cooperation when the lawyers and parties fall short. Indeed, such a reference,

when coupled with the stop and think certification requirement from Federal Rule 26(g),should give judges more than enough of a procedural basis to remind counsel and clients of

their duty to conduct discovery in a cooperative and cost effective manner.

To facilitate efficient and cost-effective discovery, judges must require lawyers to take their

obligations to meet, confer and co-operate seriously and to submit a meaningful discovery

plan at the case conference that addresses ESI issues likely to arise in the case. In New

Zealand the goal is for there to be a consent memorandum. If there is not, there has to be

an explanation why. In this way, the judge may well be able to identify a potential dispute

and defuse it at case conference level, rather than at a full hearing.

Things Judges Should Do

a) Judges should encourage parties to narrowly target requests for ESI.

b) Judges should evaluate whether the costs of complying with the requests are

proportional to the benefit of complying. With this in mind, judges may

i) need to impose limits on discovery;

ii) encourage or order standard, tailored or staged discovery;

31Steven Gensler and Judge Lee Rosenthal The Re-Appearing Judge *2013+ 62 University of Kansas LR 849,

858-9.


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iii) encourage or order sampling to determine the relevance, need, and cost of

more expansive discovery; or

iv) shift costs from the producing party to the requesting party, particularly

when information that is not reasonably accessible must be produced.

c)

Judges need to help ensure that ESI is produced in a usable form, and they may needto clarify the procedures to be followed if privileged or protected information is

inadvertently disclosed.

d) Judges should help parties balance the need to preserve relevant evidence with the

need to continue routine computer operations critical to a partys activities, and

enter preservation orders as appropriate.

In the end, judges

a) must actively manage electronic discovery,

b) raise points for consideration by parties rather than waiting for parties to present

disputes that can delay a case, add to its costs, and distract from its merits.

Such active management can help ensure the expeditious and fair conduct of discovery

involving ESI. Effective case management lets judges work to devise practical solutions to

pressing problems and to shape cases toward pre-trial preparation that is reasonable and

proportional to what each case requires.

I shall give a more focussed example of judicial activity in the in the context Early Case

Assessment phase of the E-Discovery process below.

Judicial Education and Technological Awareness

As well as active judicial involvement in the discovery process there must be a judiciary or a

cadre of judges who are informed and educated as to the technological aspects of ESI and E-

Discovery. To effectively manage discovery issues, judges must understand the relevant

technology at a level that allows effective communication with attorneys, parties, and

experts. As important as judicial education in new technologies is that of counsel education.

If lawyers do not get a handle on E-Discovery and ESI issues early in the case, or do not

manage E-Discovery processes well, the consequences can be disastrous to the client and

counsel.32

Handling Disputes

Armed with the powers that are provided in the new Rules and Practice Directions, assisted

by checklists and questionnaires and with a good working knowledge of the various

technologies and technological solutions that are available the Judge is equipped to deal

32

See Re Fannie Mae LitigationNo.08-5014(D.C.D.C2009) discussed in Gene Albert E-Discovery: How to Do itWrong (and Right!) http://www.lexbe.com/hp/litilawhosted/ediscovery-

how%20to%20do%20it%20wrong%20(and%20right).pdf(last accessed 7 August 2013).
http://www.lexbe.com/hp/litilawhosted/ediscovery-how%20to%20do%20it%20wrong%20(and%20right).pdfhttp://www.lexbe.com/hp/litilawhosted/ediscovery-how%20to%20do%20it%20wrong%20(and%20right).pdfhttp://www.lexbe.com/hp/litilawhosted/ediscovery-how%20to%20do%20it%20wrong%20(and%20right).pdfhttp://www.lexbe.com/hp/litilawhosted/ediscovery-how%20to%20do%20it%20wrong%20(and%20right).pdfhttp://www.lexbe.com/hp/litilawhosted/ediscovery-how%20to%20do%20it%20wrong%20(and%20right).pdf


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with concerns that the parties to litigation may have about the scope, extent or

methodology of E-Discovery.

Because of the powers that Judges have to manage the process of discovery, dispute

resolution need not be confined to the Courtroom but may take place at Case Conference

levela careful, surgical and penetrating enquiry by the judge into the various steps that

counsel may or may not have taken to fulfil their obligations, all conducted against the

backdrop of reasonableness and proportionality.

The E-Discovery Reference Model discussed above illustrates some of the main stages

where careful inquiry may avoid unnecessary, expensive and time consuming Court

hearings. It could help Judges identify where errors may be taking place in the discovery

process and why it is that disputes are arising. It increases judicial awareness of what

process the lawyers should undertake in E-Discovery.

Judicial Approaches to Stages in the E-Discovery Process

I want to examine three areas where Judges can avoid, manage or decide on disputes and

how technology can assist. These areas are Early Case Assessment, Document Custodians

and Aspects of Keyword Searching. I will close this section with a summary of a possible

agenda for a Case Management Conference.

I hasten to emphasise that the technologies discussed are not necessarily endorsed and are

used for illustrative purposes only. There are many E-Discovery technologies available on

the market and address different aspects of the process. While it is not necessary for Judges

to be aware of specific brands, there must be an awareness of the technological concepts,

process and science that underpins the various products.

1. Early Case AssessmentThe process of coming to grips with the discovery implications of a case early is sometimes

called 'early case assessment' (ECA). As part of the early case assessment process, counsel

will identify what discovery is needed, identify key witnesses and data custodians, construct

factual timelines and determine the strengths and weaknesses of the case.

In the United States such assessment is done in the first 60-120 days of a case and

communicated in various forms with the client, opposing counsel and the judge.

The objective of this proactive approach is to

a) develop an early strategy for the case,

b) realistically evaluate the case,

c) determine the cost and budget to prosecute or defend, and

d) identify business practices that might be modified to minimize litigation exposure in

the future.


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Early means (in addition to its more generally accepted meanings) any point at which a

partys decision-making will radically affect the scale and cost of what you do laterthat is,

it ought to be a continuous process in which early means not too late.33

Chris Dale considers that ECA is an intellectual task rather than a technological one. *W]e

see too much plodding from A to B without application of mind to the objective of clients or

courts. E-Discovery is not a specialist scienceit may involve new skills, but it is no more

(and no less) than the discovery of evidence required by the rules.34

Every consideration of E-Discovery must be achieved through the Rules and must accord

with legal principle. At the same time there are occasions when technology is of

considerable assistance in the ECA phase of a proceeding.

Early Case Assessment Technologies

Early Case Assessment is less about categorization and more about search.

Not all documents need to be classified and categorized as part of a disclosure process; a

party only needs to find the relevant documents to justify its case and reach a favourable

settlement.

The problem is that a party does not always know which words or issues to look for. ECA

tools quickly gather, de-duplicate and search ESI as a first pass to provide and early analysisof the amount and content of ESI.

A party does not need to classify all documents or reduce the document set, but can just

focus on finding the relevant documents and analyze these. With the right search tools, a

party can ignore the restat least for the time being.

Forensic-based approaches to E-Discovery may provide the ability to conduct advanced

searches for relevant ESI before collection allowing counsel to conduct a focussed early case

assessment.

With a proper ECA counsel may preview the available evidence, analyze merits of the case,

develop a strategy and effectively negotiate search criteria with opposing counsel during the

meet and confer process, thus fulfilling the objective of effective co-operation and

discussion.

Key criteria for an ECA solution include the potential to:

33 Chris Dale Digital Reef Panel at the Masters Conference Early Case Assessment: is it working? E-

Disclosure Information Project 30 October 2011 http://chrisdale.wordpress.com/2011/10/30/digital-reef-

panel-at-the-masters-conference-%E2%80%93-early-case-assessment-is-it-working/ (last accessed 7 August2011).34

Ibid.
http://chrisdale.wordpress.com/2011/10/30/digital-reef-panel-at-the-masters-conference-%E2%80%93-early-case-assessment-is-it-working/http://chrisdale.wordpress.com/2011/10/30/digital-reef-panel-at-the-masters-conference-%E2%80%93-early-case-assessment-is-it-working/http://chrisdale.wordpress.com/2011/10/30/digital-reef-panel-at-the-masters-conference-%E2%80%93-early-case-assessment-is-it-working/http://chrisdale.wordpress.com/2011/10/30/digital-reef-panel-at-the-masters-conference-%E2%80%93-early-case-assessment-is-it-working/http://chrisdale.wordpress.com/2011/10/30/digital-reef-panel-at-the-masters-conference-%E2%80%93-early-case-assessment-is-it-working/


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1. Gain insight and understanding of potential keywords, volumes of data and costs

to eliminate the collection and processing of non-relevant data.

2. Test search criteria and analyze document responsiveness before data is

collected.

3.

Identify custodians with potentially relevant data that should get a legal hold

notice.

4. Formulate a comprehensive case strategy and ensure business processes are

minimally disrupted.

5. Identify potentially relevant data sources and get metrics on potentially relevant

data versus total data volume.

6. Sample and test search criteria and privilege criteria before data is produced to

opposing counsel.35

Having access to this data as soon as possible can enable litigants to make informed

decisions about case progress at the earliest stages of a case, reducing risk and cost across

their eDiscovery processes before investing significant time and money into the matter.

There are many aspects and levels of sophistication in the tools that are available for ECA.

Once again, issues of reasonableness and proportionality will come to the fore. For example

some ECA technologies perform data analytics and generate reports that show custodian

names, date ranges, email domains, key concepts and other insights into a large data set.

The data analysis and reports can be used by counsel to make decisions regarding next steps

for their case.

Predictive Coding technologies are designed to provide a faster way to separate potentially

responsive from non-responsive documents by applying document review decisions made

on a subset of documents across a larger data set. On the surface, data analytics and

predictive coding sound like they will save money and time.

However there are potential problems in applying these solutions. For example, Predictive

Coding technologies often save the most money and time only after clients spend a lot ofmoney on upfront ESI processing. The elaborate data analytic reports created with Early

Case Assessment technologies are usually available only after the data has been processed

at a high per GB rate. Predictive Coding works best if litigants skip traditional culling

methods such as keyword searching and date range filtering that might shrink the data set

prior to higher cost processes. Because Predictive Coding costs are typically calculated

based on the size of the data set, skipping the data culling steps will keep the data set large

and the processing costs high.

35

Patrick Zeller Early case assessmentWhat you dont know can (and likely will) hurt you Inside Counsel 12August 2011 http://www.insidecounsel.com/2011/08/12/technology-early-case-assessment-what-you-dont-

kn?t=technology&page=2(last accessed 7 August 2013).
http://www.insidecounsel.com/2011/08/12/technology-early-case-assessment-what-you-dont-kn?t=technology&page=2http://www.insidecounsel.com/2011/08/12/technology-early-case-assessment-what-you-dont-kn?t=technology&page=2http://www.insidecounsel.com/2011/08/12/technology-early-case-assessment-what-you-dont-kn?t=technology&page=2http://www.insidecounsel.com/2011/08/12/technology-early-case-assessment-what-you-dont-kn?t=technology&page=2http://www.insidecounsel.com/2011/08/12/technology-early-case-assessment-what-you-dont-kn?t=technology&page=2


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The size and composition of data sets involved in litigation can often be a reliable indicator

of the time and monetary risk involved in defending or settling the case.

Most ECA software now works on the model of significantly reduced rates to ingest data

into their ECA platform. Inside that platform you can then learn what is there, but then look

to cull and filter information to get down to the information you really want, thus reducing

the GB rates significantly going forward. To reduce Predictive Coding costs, just the 'text'

from files can be used to reduce the per GB rate of having to process the full size of the files

- this can considerable reduce costs.

The important point is that in coming to an E-Discovery dispute a judge is going to have to

be aware of the various technologies that may be available for ECA and evaluate a partys

compliance, taking into account reasonableness and proportionality.

2. Document Custodians36An aspect of the Digital Paradigm is that information may be spread across a number of

locations and upon hundreds of devices in an organisation. The larger the organisation, the

greater the level of complexity in ascertaining who has what. An important part of the

answer to this problem lies in a proper and effective document management system within

an organisation.

An ESI Content Map is a report of an organization's electronic data sources for use as a

litigation management tool and may address differing approaches to document

management in an organisation. It will include the names of custodians, the type of

information included, backup policy, location and other information helpful in determining if

a repository is reasonably accessible for legal purposes.

The map should include understandable information that counsel needs to competently

identify, preserve and collect ESI required for discovery related to litigation or a

governmental investigation.

Additionally, a well-maintained ESI content map can help counsel demonstrate that a

company has been proactive regarding its discovery obligations.

36I am grateful to Gene Albert and his very helpful paper E-Discovery: How to Do it Wrong (and Right!) see

above n. 21.


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Discovery Volume

An important part of early case assessment is to determine how much potentially

discoverable ESI exists, how much is reasonably assessable, and the volume of page

equivalents to deal with once a review begins. Attorney review costs are primarily page and

document driven. A surprising number of page equivalents can exist on drives and storage

media like CDs, DVDs and flash drives.


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An increasingly popular technique is to do a quick analysis of what is in an ESI collection. As

mentioned above, it is critical to understand early on in an E-Discovery project how much

work must be done to be able to properly staff and construct accurate project timelines.

Clients also require budget estimates and need to be able to make review decisions, and

determine whether and how to proceed with litigation, with overall costs in mind.


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Raw or partially processed ESI can be analyzed relatively inexpensively (compared with full

ESI processing) to obtain the following information early in the process as a 'Quick ESI

Analysis":

What is the approximate distribution of file types in the data collection?

What is the approximate distribution of file dates in the collection? Discovery

productions are often limited by file creation dates and this can show how the data

collected will be reduced by date limitations.

What persons are identified as authors in the files (from email and file metadata)?

This shows if the collection identifies custodians that have not previously been

identified, of if previously suggests custodians are represented in the data collected

to date.

How many pages are likely to be converted from the data collected?

3. Keyword SearchingLike all technologies, keyword searching has it place and purpose in the overall scheme of E-

Discovery.

A court should look carefully at whether keyword searching, particularly in big cases, is

appropriate and whether more sophisticated techniques and software should be used.

Judges should not decide on keywords without evidence of the number of hits particular

terms throw up.

37

The UK Practice Direction warns against the dangers of keyword searching. In 10 Key E-

Discovery Issues in 201138

David Lender and Magistrate Judge Andrew Peck observed:

Following on d