Document ReviewGetting, preparing & reviewing data

under the New High Court Discovery Rules

Guy Burgess, CEO – LawFlow

http://www.lawflow.co.nz

Managing eDiscovery in New Zealand Conference

February 13, 2013, Stamford Plaza, Auckland

A discovery anecdote…

Three stages

Stage 1: Getting the Data

Stage 2: Preparing the Data

Stage 3: Reviewing the Data

Who decides what documents might be

relevant?Considerations:

1. Professional duties

2. Scope of discovery under new rules

3. Issues are often not clear

4. Clients often have “one-sided” view

5. Consequences of non-discovery

6. Lawyers should be well placed to determine relevance.

Professional duties

Rule 8.13As soon as practicable after a party becomes

bound to comply with a discovery order, the solicitor who acts for the party in the proceeding must take reasonable care to ensure that the party—

(a)understands the party's obligations under the order; and

(b)fulfils those obligations

Issues are often unclear

• Amendment of pleadings

• Joinder

• Interlocutories – strike out, etc

• Documents received from other parties

• Better understanding of strenghts and weaknesses, and where real issues lie.

Consequences of non-discovery

Rule 8.31:A document that should have been included in a party's affidavit of

documents may be produced in evidence at the hearing only with the consent of the other party or parties or the leave of the court.

Rodgers v Rodgers (1988) 2 PRNZ 418, Tompkins JThe object of this rule is, in my view, to impress upon parties and

their advisers the importance of full and adequate discovery… The rule is a recognition of the fact that in the past, all too frequently, discovery has been done in an inadequate and very often careless way. So the rule emphasises the need for full detailed and complete discovery by providing that if a document is not discovered it shall not be admitted except by consent or leave of the Court. The object of this rule would be defeated if leave were granted as a matter of course.

What data to get?

• Don’t leave it to the client

• Gather data broadly

• Take a Peruvian Guano approach to possible relevance

• Filter that down to what gets discovered.

Stage 2: Preparing the data

Stage 1: Getting the Data

Stage 2: Preparing the Data

Stage 3: Reviewing the Data

Stage 2: Preparing the data

• Collect all documents – prefer electronic

• Cull obvious cruft

• OCR paper documents

• Load all documents into the database

Full-text search is a must

• Except for smallest projects, don’t even think about not having a searchable database.

• Benefits outweigh costs

Load all documents

• Loading tranches of documents can become difficult to manage

• Leverage your litigation software

Stage 3: Reviewng the data

Stage 1: Getting the Data

Stage 2: Preparing the Data

Stage 3: Reviewing the Data

The 3 critical checks

1. Discoverability

2. Privilege

3. Confidentiality.

Partially relevant documents

• Irrelevant parts of documents can be redacted: – G E Capital Corporate Finance Group Ltd v Bankers Trust Co

[1995] 2 All ER 993

• Commonsense way to deal with sensitive documents

• Modern redaction tools make this an increasingly favoured approach.

Redacting documents

• Redactions should be explicit & obvious

• Must retain unredacted original

• Redaction log

• Make sure redactions are safe – beware #redactionfails

Privilege

• “Discoverable with redactions” (DWR)

• No obligation but can be sensible approach– Allows “safe” version of document in evidence– Can reduce prospect of challenges to privilege

• Privilege must still be claimed

• DWR-version listed on Part 1 or 3 of list.

Confidentiality

• Parties have broad right to claim confidentiality: r 8.16

• Impose conditions on inspection to preserve the confidentiality: r 8.15(2)(f)– Attorney’s eyes only– Specific undertakings

• Opposing party has burden of challenging.

Confidentiality (2)

• Use sparingly– Note r 8.30

– Can lead to pointless interlocutories

• Is it better to simply provide redacted versions?

The 3 4 critical checks

1. Discoverability

2. Privilege

3. Confidentiality

4. Issue review

Issue review: 2 golden rules

1. Immediately record if a document is relevant to an issue

2. Just as importantly, record why the document is relevant to an issue.

Mining the data

• Making the most of what you’ve got

• Software is your friend :-)

Summary

• Have a plan for getting, preparing and reviewing documents

• Use technology & Rules to your advantage

• Mine the data