Managing eDiscovery in New Zealand

Update 25 Feb 2013: All speaker slides are now available at this link.

Last week I presented at the Ernst & Young / E-Discovery Consulting “Managing eDiscovery in New Zealand” conference in Auckland.

The slides for my presentation, “Document Review: Getting, preparing & reviewing data under the new High Court Discovery Rules” are here:

Judge David Harvey gave the keynote presentation, and has also put up his slides:

When will New Zealand get e-filing?

Non-lawyers may be surprised, even shocked, to know that New Zealand courts still require manual, paper-based filing of court documents (I am happily unfamiliar with criminal proceedings, so I limit my comments to civil proceedings).

With only limited exceptions, documents must be printed and then physically delivered by post, courier or hand, to the relevant court. Even the form of paper is specified in detail: “medium weight and good quality … of international size A4 … clearly typewritten, printed, or produced in permanent form by photocopying … a margin of at least one-quarter of the width of the paper must be left on the left-hand side of each pageall sheets of a document must be securely fastened together“.

(Limited exceptions include certain types of memoranda that can be filed by email, and a friendly case officer will also occasionally make exceptions. Likewise with fax.)

So if you want to file a two page application in the High Court, you must print it out and deliver it to the High Court building. If you need to urgently file documents in a court in another town or city, a “claytons e-filing” is sometimes performed, where you email the document to another lawyer in the relevant city or town and ask them to print it out and run it along to the court for you (yes, seriously).

And I’m not just talking about small documents. If, for example, you have a case in the Court of Appeal, you are required to physically deliver 4 printed multi-volume sets of evidence and pleadings (often thousands of pages) to Wellington. This can involve freighting large archive boxes full of paper to Wellington. And of course, having thousands of pages of text in printed form is very user-unfriendly (not to mention carbon-footprint unfriendly), when almost any other business or organisation would request it electronically so it can be searched, stored efficiently, etc, although that is a separate topic in itself.

The benefits of e-filing are apparent. Minister for Courts, Chester Borrows, recently commented:

The ability to lay charges in a court without typing out paperwork, driving to a courthouse, signing, swearing and filing the paperwork every time a person is arrested will save police and court staff huge amounts of time. It is estimated that an electronic operating model implemented in this country will save 93,000 man hours per year for police officers’ and courts’ staff time.

But for now, e-filing is not yet a reality in New Zealand. There have actually been basic provisions for e-filing in the High Court Rules for some years, however these have not been activated as they are dependent on the necessary IT infrastructure being implemented.

The good news is that progress is underway. Various announcements of initiatives have been made in recent years, and some progress is apparently happening. The Rules Committee of the High Court reported last year that steps were being taken:

… which would significantly move forward the timeline for when e-filing could be realistically implemented. At this stage, phase two is expected to be deployed 2014/15.

In the meantime New Zealand’s court system, remains heavily paper-based. I would wager that the court system is, at present, the most technologically backward area of Government in this regard. I hasten to add that none of this is a criticism of court personnel, who generally do a fantastic job with the rules they have been given and will always be essential to the smooth running of the courts.

We are not alone. A Canadian judge, after experiencing problems with his court system’s paper-based document management system, engaged in some wistful thinking in a judgment delivered earlier this year:

[13] The real solution? Consign our paper-based document management system to the scrap heap of history and equip this Court with a modern, electronic document system.

[14] A warm, sunny day like today perhaps allows one to dream a bit. What if our Court had an electronic case management system which recorded, as a matter of course and without the need for extraordinary judicial direction, that certain documents had been filed and sealed in a proceeding, so that when the matter returned for further hearing an electronic flag would pop up alerting court staff that sealed documents might be required for a hearing?

[15] And what if our Court had a system under which documents were filed electronically and accessible to judges and others through a web-based system, with sealed documents specially encrypted to limit access to judges only?

[16] Yes, Virginia, somewhere, someone must have created such a system, and perhaps sometime, in an another decade or so, rumours of such a possibility may waft into the paper-strewn corridors of the Court Services Division of the Ministry of the Attorney General and a slow awakening may occur.

Wouldn’t it be nice if a local judge expressed similar views?

But, like any transition, moving to e-filing isn’t guaranteed to go smoothly. The UK has just ditched its latest attempt at an e-filing system:

The Electronic Working System, designed to speed up cases in the Royal Courts of Justice, was ditched in March after what HM Courts & Tribunals Service called ‘serious issues with the quality of the core system’ …

The eWorking system was implemented in 2009 to improve the flow of information from court users across the Royal Courts of Justice by allowing them to submit files electronically. HMCTS said the system was designed in-house with the help of a ­number of specialist freelance contractors. Initial good progress was made, but over the final 18 months of the project take-up fell dramatically, with less than 1% of cases filed electronically in the first half of 2011.

Here’s hoping we learn from such mistakes, and get a good e-filing system sooner rather than later.

E-discovery – redacting electronic documents

More information is coming soon on New Zealand’s e-discovery solution – the electronic discovery solution developed right here in New Zealand to support the new discovery rules taking effect on 1 February 2012 (see this earlier post).

One feature is the ability to safely redact PDF documents directly in a web browser.

Redaction is increasingly important in New Zealand civil litigation, given the volume of documents and the propensity for sensitive and/or privileged information to be mixed with other discoverable information. The High Court Rules (current and new) allow redaction of certain information on the grounds of confidentiality and/or privilege. Conditions can be proposed by the disclosing party to protect confidential information – for example, the provision of certain documents (redacted or not) may be made on an “attorney’s eyes only” basis (to adopt the US parlance; in practice it often extends to experts too). Other parties can challenge the proposed restrictions, however this requires them to bring an application to do so, and in practice such issues can usually be resolved without the Court’s intervention.

The new High Court Rules will generally mean that documents must be redacted electronically, in PDF format. In practice, there are 3 key challenges to doing so:

  1. Making it easy – ideally, the lawyer will be able to make their own redactions directly on each PDF while viewing it anywhere and any time, without the need to install separate standalone software and without any fuss. In particular, this avoids the  inefficient and obsolete process of printing documents, manually redacting them, and then re-scanning them.
  2. Making the redactions permanent and secure – there are many real-world examples of unsafe, or non-permanent, redactions, where an apparently redacted document still allows the underlying text to be easily retrieved (read about a recent example – by a judge! – here).
  3. Handling duplicates – there is no point redacting one version of a document, only to have a duplicate produced in original form.

Safe and easy PDF redaction (via the browser) is one of the features of the New Zealand developed e-discovery solution that will be announced soon. Stay tuned for more information in coming weeks.

A new Electronic Discovery solution, coming soon…

A pre-announcement:

New High Court Rules (and District Court Rules) promoting the use of electronic discovery come into force on 1 February 2012. Key features of the “default” regime under the new rules include the following:

  • Discovered documents must be exchanged electronically.
  • Parties must provide a standardised list of discovered documents.
  • Documents must be provided in PDF format (unless not possible for particular file types), with the document number as the filename.
  • Native files must be provided if requested.
  • Parties must take reasonable steps to exclude duplicates.
  • Emails and attachments are to be listed separately but sequentially on the document list.

These changes reflect the ever-increasing volume of data (in particular, electronic data) in modern litigation, and the need to effectively and efficiently handle the discovery process.

A New Zealand solution

This new regime requires a new solution. Stay tuned for an announcement of a new web-based electronic discovery system developed right here in New Zealand, that supports the new rules on electronic discovery as well as providing early case assessment and detailed review capabilities. This system has been locally developed over the past several years.

Key features include:

  • New Zealand designed and developed system, cognisant of the new High Court Rules on electronic discovery
  • Fully managed, web-based solution – no software to install or maintain, and can be accessed on any computer, notebook, or tablet
  • Handle projects ranging from a few dozen, up to hundreds of thousands of documents
  • Securely access, review and upload project documents anywhere, anytime
  • Track discoverability, privilege, confidentiality, and other document attributes
  • View common document formats in any standard web browser without the need to install Office software
  • Powerful search and analysis capabilities across the document repository
  • Generate discovery lists and electronic bundles of documents (native format or converted to PDF, stamped with document numbers)
  • Automated handling and de-duplication of Outlook email archives and common document types
  • Single-user or collaborative multi-user options (including the ability for clients to upload their own documents)
  • Fully locally supported
  • Customisable by a local development team
  • And much more!

Check back for more information in coming months.

(features described are subject to change before the system is publicly launched)

E-dealing: get over it

The Herald recently reported on a lawyer’s “negligent or incompetent” use of the Landonline e-dealing system that was said to “imperil the electronic system” of land titles. The incident prompted another lawyer to warn that the e-dealing system was insecure.

While any improper or irregular dealings with something as important as land titles is a serious matter, is the integrity of the Landonline system – or the concept of e-dealing for land titles generally – called into question based on one, or even several, such incidents? No – at least not before a proper comparison with the rate of mistakes/problems/fraud under the old system before such a comparison is made.

There were of course occasional issues with old, paper-based land title system. It is too early to tell if the new system (which was only fully phased-in in 2009) is, statistically, more or less secure than the old system. In the meantime, the Registrar-General of Land, Robbie Muir, has defended the new system, making the point that an electronic register is more secure than the old paper-based one:

[The old system had] the potential for forgery and the land registry did not have reliable means of verifying the authenticity of land owners’ signatures or establishing that proper identity checks had been undertaken.

Muir is right. The reality is that modern technology is usually far superior to an “ink and paper” equivalent. Technology can implement mathematically-verifiable encryption and validation methods to confirm certain transactions and events have occurred. The idea that mashed-up pieces of wood stained with ink provides superior integrity and efficiency to a well-designed electronic system is quaint, but plainly wrong. Of course, the key requirement in the previous sentence is “well-designed”. A system with crucial flaws may be completely insecure. Replacing a good paper-based system with a poor electronic one is a recipe for disaster.

Technology is, and for a long time yet will be, subjected to a double standard when compared with a non-technical equivalent. For example, there are thousands of instances of mail stolen from letterboxes, mail-rooms and post offices each year. Generally, none of this is particularly newsworthy. However, if an ISP has some emails “stolen” by a hacker or staff member, it would likely be reported. In the same vein, credit card fraud is common in the physical world, yet often reported with alarm if the same thing happens online.

The recent incident with the e-dealing system highlights this. As Robbie Muir points out:

Given the large volume of land transactions registered each year, there will inevitably be isolated cases where things go wrong. The same was true of the paper-based system. However, under the Landonline system it is possible to quickly establish what has occurred and who is responsible.

Some lawyers I know or have dealt with – young and old – remain curiously uncomfortable, and even suspicious, of email, electronic data, online dealings, and the like. On several occasions I have had lawyers refuse to correspond by email supposedly because of “problems previously encountered” with this new-fangled technology. So I send them emails, and they reply with snail-mail and faxes (yes, in 2010).

A particular hang-up is the occasional insistence on “originals”. Back in the days when important documents were drawn up by hand (really important documents were on goatskin parchment), it was fairly obvious what was the original document, and what was a copy. The need for requiring an original was clearer. And when there is a piece of paper, it is usually easy to tell whether it has been physically signed, photocopied, or had a computer printed signature applied. But with electronic files, concepts such as the “original document” quickly lose meaning, as does the need for an “original” and signing at all. However, a suitable “original” (if insisted upon) can usually be made by printing off a file and signing it. Whether this is necessary at all – other than for “ceremonial” purposes – is questionable.

It comes down to the perceived comfort of having a piece paper – something physical that can be put into a folder and filed in a filing cabinet. But the reality is that digital documents and digital signatures are capable of achieving a much higher level of security than a signature.

NZ Companies Office kudos

As my last post was on the subject of company records, I should mention that the NZ Companies Office is far and away the best company registry website around. The main search pages may be getting slightly dated now, but are still great and gradually being updated, with a major overhaul apparently planned (IIRC from the “roadshow” they did last year).

One very simple thing at the top of my wishlist: ditch the pop-up results frames! Allow us to open results in new tabs (without post-backs)! As you can see I don’t ask much. Also the “watchlist” notification function which I understand is planned will be VERY useful. And while I’m making a list, a historical shareholders function would be useful, albeit of limited use because (unlike changing directors) not every shareholding change is required to be filed.

Best of all (from a tech-perspective) it allows XML web service integration for free, which is brilliant (I have used it, and still do, on several projects, even gratis developer tech support is provided [if you ask nicely]) albeit with the requirement that a confidentiality agreement is signed regarding the XML schema. I don’t quite see why that is necessary (not that I’m at liberty to discuss it…) but perhaps the Open New Zealand initiative will take up the matter. They have also been very active with new media (e.g. on Facebook and Twitter) which is great to see and a model for other agencies.

By contrast, the UK, Australian, and Hong Kong equivalents are terrible (in ascending order of awfulness). The information is there, you just need to pay for it and/or go via a third party. In 2007 I tried talking to a Hong Kong official about automated web-service access to the Hong Kong register… well, the fact their homepage still refers to IE5.0 and Netscape 6.0 gives an idea of the responses I got.

Kudos to the NZ Companies Office, which should be a model for other public sector registers.