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:

LawFlow – increased project storage

LawFlow has increased the storage allowances for projects at no extra cost. The growth in the discovery document load has really increased massively in recent years, and really highlights the need for effective management tools.

E-discovery often equals big data. Most of the large files in a discovery are scanned PDFs. In some cases, these are hundreds of pages long and over 100MB each. If the original electronic files can be used, storage requirements will usually be much lower compared to a printed-and-scanned document.

 

 

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.

Handling discovery documents – Physical vs Scanning vs Native

Via LawFlow.co.nz:

Discovery documents traditionally came in one simple form – paper – and production was a matter of physically copying those documents.

Today, the majority of original documents in most commercial cases are electronic – emails, Word documents, images – and there are a lot more of them. This has prompted a change in how documents can be most efficiently discovered.

There are 3 main ways (in terms of format) to exchange documents in a modern discovery:

  1. Printing all documents to paper
  2. Scanning / converting documents to PDF
  3. Providing documents in native format.

The new High Court Rules, in effect since February 2012, mandate electronic discovery as the default process. This requires the use of either or a combination of options 2 (scanning) and 3 (native format).

While the new rules remove any “argument” over whether discovery should still carried out physically, there are good reasons anyway for providing discovery electronically (which are the rationale for the new rules, as well as the reason why many firms have elected to provide documents electronically for some years), including:

  • Most modern documents originate in electronic format.
  • A printed version of an electronic document is not the same as the original document, which is what must be discovered.
  • A number of electronic documents cannot be printed anyway, e.g. audio/video files.
  • It can incur considerable unnecessary effort and cost to print documents.
  • The sheer volume of documents can result in a “paper war” if multiple copies of vast amouts of documents are printed, collated and bound.
  • It is more environmentally friendly.

In addition:

  • A printed version of an electronic document loses information about the document (e.g. hidden comments, document properties, cell formulas, etc) that may be properly discoverable.
  • Printed documents can no longer be searched.
  • Electronic documents can be handled in an e-discovery system such as LawFlow.

Some firms are currently in the practice of essentially carrying out discovery manually (i.e. on paper) and then scanning (or re-scanning) documents back into electronic versions. Unfortunately this can be a very inefficient way to go about the task.

Introducing LawFlow – New Zealand’s E-Discovery solution

LawFlow is an e-discovery system designed and developed in New Zealand, that supports local requirements such as the new High Court Rules on e-discovery. Check out the website at www.lawflow.co.nz for more information.

I have been involved in the development of e-discovery, litigation management and online workflow systems for over 10 years, and I am pleased to be involved in the development of LawFlow which now provides New Zealand firms with a local option for carrying out the often difficult and time-consuming task of discovery. In particular, as LawFlow is designed and developed right here in New Zealand, I look forward to helping to continue to improve and adapt the system to meet local requirements based on user feedback.

Some quick highlights of LawFlow:

  • Generate discovery lists and electronic bundles of documents that comply with New Zealand requirements;
  • A fully web-based solution hosted in New Zealand – no software to install or maintain, can be accessed on any computer, notebook or tablet, and your data stays right here in New Zealand;
  • Allow authorised staff, Counsel and clients to access discovery documents anywhere, anytime;
  • Redact documents directly from your web browser;
  • Secure storage for discovery data, from the start of a proceeding right through to its conclusion.

Unlike many overseas providers, LawFlow’s pricing is available right on its website. And, there is currently an offer for a free trial – so you can upload your documents into LawFlow and actually trial it on your documents, at no cost.

I will blog more in future on LawFlow, and e-discovery generally, via the LawFlow website.

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.