Completing discovery under the "new discovery rules" - almost two years on

05 December 2013

posted in Discovery | Discovery Rules | Litigation | Dispute Resolution | Inspection



All parties to litigation are required to complete ‘discovery’ and ‘inspection’. Very broadly, discovery involves identifying and listing in a sworn affidavit all relevant documents. Inspection is where all parties make their discoverable documents available to the other party/parties for review.

Prospective parties to Court proceedings are (now) required to take all reasonable steps to preserve documents even before proceedings have been issued.

Completing Discovery Under the Old Discovery Rules - How it Worked Pre-February 2012

Prior to the High Court Amendment Rules (No 2) 2011 (the new discovery rules) coming into effect on 1 February 2012, we would consider the particular matter, including the amount claimed and whether it was a document intensive matter, and decide whether to complete discovery ‘in house’ or whether to use a litigation support software provider to code and scan the documents into a document management system. In either case, all documents would be manually reviewed for relevance and privilege and listed in an affidavit of documents. Under the old rules, inspection would take place physically - we would either attend the other parties’ solicitors’ offices and review their files in hard copy, or we would simply request hard copies of all discoverable documents.

The New Discovery Rules

Under the new discovery rules, we will still assess a file before completing discovery and consider whether it is appropriate to use a document management system, however the need to complete inspection electronically under the new discovery rules will frequently tip that assessment in favour of using a document management system. All documents will then be manually reviewed for relevance and privilege and listed in an affidavit of documents.

The key changes brought about by the new discovery rules, which affect the way we complete discovery include:

  • The new discovery rules codify (and arguably expand) the requirement upon a party to litigation to take all reasonable steps to preserve documents which are likely to be discoverable as soon as Court proceedings are reasonably contemplated (see Duty to Preserve Documents for more information)
  • The requirement to provide a (indexed) bundle of initial disclosure when serving a pleading;
  • Greater consultation and co-operation with the other parties to the litigation is required under the new rules and this needs to take place prior to the first case management conference;
  • The parties are now directed/agree to provide either ‘standard’ discovery or ‘tailored’ discovery). Tailored discovery will be ordered where the interests of justice require more or less than standard discovery. There is a presumption in favour of tailored discovery where the quantum claimed exceeds $2.5 million or where the costs of standard discovery would be disproportionately high in comparison with the matters at issue in the proceeding;
  • The new relevance test – previously the Peruvian Guano train of enquiry test, the test for relevance applicable to standard discovery is now the narrower, adverse documents test;
  • There is a new listing and exchange protocol, which includes the obligation to list every email separately, discovering the top-level version of each relevant email (this is more labour-intensive); and
  • As mentioned above, the requirement for inspection to take place by way of electronic exchange– on smaller files where we are not using a document management system, this means all documents need to be scanned to PDF to enable electronic exchange.

Various issues have arisen in practice since the enactment of the new discovery rules. For instance, the transitional provisions (or lack thereof) caused confusion within the legal profession (and resulted in additional interlocutory hearings) and another issue that has arisen is the different formats in which documents are being exchanged electronically (for instance, the practice of complying with only the minimum requirements by providing a USB stick containing a multitude of PDFs that are not individually identifiable is especially unhelpful).

One of the main aims behind the new discovery rules was to reduce the often disproportionate cost to a party of completing discovery, however the jury is still out on whether the new discovery rules achieve this.

For more information, contact Melisa Beight, Senior Solicitor.

05 December 2013

posted in DiscoveryDiscovery RulesLitigationDispute ResolutionInspection



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