Slides of a presentation about aspects of e-discovery in New Zealand

1. Avoiding E-Discovery Disputes
And keeping the Judge Happy

2. Judge David Harvey
LLB Auckland
M Jur Waikato
PhD Auckland
A Judge of the District
Court
Auckland
New Zealand
Judge David Harvey has been a judge of the district court in New Zealand for 25 years. He also teaches
law and information technology for the Faculty of Law, Auckland University, and has written a text on
Internet and computer technology law titled internet.law.nz, now in its 3rd edition. He has written
extensively in the field of law and technology and has presented a number of papers both in New
Zealand and internationally on law and technology matters.
He graduated with an LLB from Auckland University in 1969, MJur from University of Waikato in
1994, and PhD from Auckland University in 2012. His doctoral dissertation was on the influence of a
new technology (the printing press) on law and legal culture in England in the Early Modern period.
Judge Harvey has an interest on the immediate and wider impact of technology on the law and legal
culture. He has co-written an article with Daniel Garrie on New Zealand’s new Discovery Rules and has
delivered several presentations on the subject.

3. Topics
• The nature of the E-Document
• The E-Discovery Process
• Counsel’s Obligations
– The checklist
– The Electronic Bundle Practice Note
• Knowing the Technology
• Working as a Team

4. TECHNOLOGY
Current State of Documents and Data in E-space

6. • Paradigmatic
change
challenges our
assumptions
about and
expectations of
information.
The Digital Paradigm

7. • The digital paradigm is
so revolutionary that
it undermines some of
the values and
assumptions that
underlie traditional
thinking about
documents.
• Instead we should be
thinking about
“information”

8. The Document in E-Space

9. Tangible Material
• Discovery and searches
are based on the quest
for information
• Information on paper –
easy for a reader to
access that information
long after it was created
• Tangible – has a discrete
physical existence

10. Nature of an “E-Document”
• An e-document is not “out there
somewhere” like a book in a
library
• An e-document is a “process”
whereby unintelligible pieces of
data – distributed over a storage
medium – are
assembled, processed and
rendered legible
• As a single entity, the document is
“nowhere”

11. Technology and “Functional
Equivalence”
• Involvement of technology
makes the e-document
paradigmatically different
from hard copy.
• “Functional equivalence”
is used to bring cyber
searches into line with
hard copy searches.
• An electronic document
may be seen as
“functionally equivalent”
in the presentation of
information in readable
form.

12. • Why are we
referring to
“documents”
• Reflect a past
paradigm where
information was
stored on paper
• Information is a
better word
• Or perhaps
Electronically
Stored
Information (ESI)
if you want
precision

13. ELECTRONIC DISCOVERY

14. What is E-Discovery?
• The methods by which the parties use electronic
means to assist in
finding, identifying, locating, retrieving, reviewing, lis
ting or exchanging documents to satisfy discovery
obligations
• Rules do not mandate the use of digital tools and
methods to find, identify, locate, retrieve or review
documents
• But such tools and methods, when properly
implemented, can lower the monetary costs of the
litigation and accord with cost and proportionality

15. Understand the Process and Purpose of E-
Discovery

16. Initial Objectives
• A pre-existing good information management
system is an excellent starting point
• Reduce the volume
• Restrict to relevance
• Identifying classes of information – early case
assessment (ECA)

17. Why is important to know this stuff?
• Lawyers and Judges MUST be aware of the
elements of the E-Discovery process
• Lawyers need to satisfy the Court (in disputed
cases) that proper processes have been
undertaken
• Judges need to be able to craft proper
directions and discovery orders that recognise
the potential (and limitations) of technology

18. Why is this so?
• Look at the Checklist and the Electronic
Bundle Protocol
• Do you REALLY think you can avoid
understanding the technology

19. The Checklist

20. The New Zealand
Checklist
Designed to assist the parties carry out discovery
The checklist itself highlights ways to reduce some of the
listing and exchange costs -
“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 to be produced for discovery.”

21. Underlying Premise
• Co-operation between counsel to limit
discovery to what is
– Reasonable
– Proportionate to the issues in dispute
– Relevant

22. Assessing Proportionality
• Review pleadings to identify document
categories
• Identify
– Location of documents
– Document custodians
– Volume of documents

23. Likely Volume and Cost
• Estimated cost of discovering identified
material
• Includes
– document review for
• privilege,
• confidentiality and
• Listing
• Is specialist assistance required to help make
informed decisions

24. Assess and Discuss
• The ongoing responsibility of co-operation and
conferring
• Is the estimated cost proportionate to the
sums in issue
• Might a tailored order help keep costs down

25. Extent of Search

26. Two Points
• Identify whether methods listed in the
tailored discovery provision may help locate
electronic material
• Consider seeking a tailored discovery order
• Proportionality and cost govern criteria
– Number of documents
– Nature and complexity of proceeding
– Ease and expense of retrieval
– Significance of any document located in search

27. Tailored Discovery

28. Consult, Confer and Co-operate
• Try to agree to a proposal for a discovery
order with respect to:
– Categories of documents to be discovered –
should be limited to what is reasonable and
proportionate
• Subject matter
• Date Range
• Types of Documents
• Key individuals – document custodians

29. Methods and Strategies for locating
Documents
• Agreement on methods and strategies that will result
in a reasonable and proportionate search
– Keyword searches
– Other automated searches and techniques to cull
douments
• Concept searching
• Clustering technology
• Document prioritisation (predictive coding)
• Email threading
• Any other tool or technique
– Near duplicate identification
– Specialist assistance?
• Consider a staged approach to discovery

30. Listing and Exchange

31. Listing and Exchange Protocol
• Protocol provides for way in which
information should be presented and
summarised
• May be modified by agreement in writing
• Arrangements for electronic material that
contains relevant unseen information

32. Listing ESI
• Listing ESI requires different considerations
– Native file format
– Extracted metadata
– Use image format only if document to be
produced for discovery – should be searchable
– Only number images to be produced for discovery

33. Presenting Documents at Trial

34. Consult and Confer - Again
• Must consider how documents will be used
efficiently
• Whether an electronic bundle should be used
• Ensure listing and exchange is compatible

35. The Electronic Bundles Protocol
2013 Practice Note

36. • A guideline for lawyers and judges
• Intended to encourage and facilitate use of electronic
bundles
• Sets out the classes of information that may be in EB
– Documents referred to in a hearing
– Affidavits
– Pleadings
– Briefs
– Submissions
– Authorities
• Used when “common bundle” would exceed 500 pages

37. Observations
• Protocol applies to civil and criminal
proceedings
• Emphasis on counsel’s duty to co-operate
• In PDF format
• Must be searchable
• Folders used within the bundle

38. • Mirrors the “Eastlight File” format of
hardcopy production
• Uses language of the hardcopy
paradigm
• Adobe Acrobat and Foxit Phantom
PDF both allow information ordering
by tabs

39. • Keyword Searching
• Duplication and Exclusion
• Concept Searching
• Clustering
• Document Prioritisation aka Predictive Coding
• E-mail Threading
• Near Duplicate Identification
• Native File Review
Technology and E-Discovery

40. • Key word searching is a fairly blunt instrument but
may be useful for Early Case Assessment
• 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
• Ideally the construction of the search string or key
words should be discussed with other parties so
that the key words may be agreed
• Because of its limitations, key word searching is not
an ideal method of cutting and filtering documents
and other automated searches may be preferable
Search – Keyword Searches

41. Involvement in Effective Keyword
Searching
• Cannot proceed from an
uninformed perspective.
• Examine the approach of the
parties
• How did they go about keyword
selection and search construction
• Is the dispute about definitions of
the keyword search or something
else
• If judge is required to adjudicate a
keyword dispute consider a mixed
process
– Sampling and testing followed
by
– Manual review

42. Duplication and Exclusion
• The process of identifying and removing
duplicate documents from a collection of
documents so that one unique copy of each
document remains
• A cryptographic hash function such as the
message digest algorithm five (MDA5) may be
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

43. Duplication Problems
• In the paper world the process of
duplication required visually sighting
documents
• Some lawyers are still using the same
practices that they used when
reviewing paper documents adding
unnecessary cost and burden to the
discovery process
• It is not unknown for the document
review process to be carried out by
printing out hardcopies of all the
electronic material and then
laboriously reading through
document by document to ascertain
if there were duplicates

44. Concept Searching
• Useful when large volumes have to be examined
and the search attempts to match results with
the query conceptually
• 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

45. Clustering
• 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
context of the documents.
• There is an advantage with process in that similar
issues can be investigated at the same time
instead of reviewing different documents
throughout the document review set.

46. An Example
• Someone creates a word doc, then prints it
PDF, another person opens the PDF, cuts and
paste the text of the document into an email and
emails that to third person.
• That person then prints the email, and a fourth
person scans the email to TIFF.
• Cluster analysis could possibly put all of the files
together in a cluster - four types of files in the
cluster (DOC, PDF, MSG, and TIFF) all because the
content is similar.

47. Near Duplicate Identification
• Not referred to in the New Zealand checklist
• 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
• 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

48. Email Threading
• Many emails contain earlier message and are
constructed in the form of a thread or a chain
• 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
• Threading organises emails into
conversations, revealing the context of the
communication and reducing review time by 50%
or more

49. Predictive Coding in Practice
Most expensive component of any
document production remains the
lawyer review
Keyword search: an imperfect state-
of-the art
Is there a better culling tool?

50. Native File review
• Allows lawyers to view documents in the format
in which they were intended to be viewed
• Spreadsheets and databases may only be able to
be accurately assessed for their native
applications. This can have considerable cost
saving
• 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

51. ADVICE FOR THE BAR

52. Knowing Saves Time
Ensure that both sides know
something about their clients
systems such as:
• Know and verify how to manage
information
• Know what systems may be impacted
• Know what systems are involved
• Bring technical documents including
data map

53. • It is implicit that all parties including the judicial officer
should have the knowledge of the benefits, advantages
and disadvantages of the various documents sorting
and document review technologies that are available
• At times, depending upon the nature of the documents
and their extent, such knowledge or awareness is going
to have to be detailed and specific
• May have an impact upon a tailored discovery order

54. Meet and Confer
• Critical part of the
process
• Assessing
proportionality
• Determining extent
of search and
strategies
• Checklist premised
on meet and confer

56. Focus on the Facts and Issues
• Identify the issues to determine
relevance
• Then focus on how e-discovery
facts can achieve information
location
• Think in terms of
technical specifications
• Checklist requirements of
assessing proportionality and
the extent of the search

57. Remember to
educate and listen as
counsel and parties
are not likely
technology or e-
discovery gurus.
For E-Discovery specialists

58. • There are ways utilising meet and
confer, conferencing, careful case
management, scheduling conferences and
time tabling
• Judicial Activism
Try to avoid a disputed E-Discovery
Hearing

59. • New Zealand and England use variants of a checklist or
questionnaire.
• The checklist provides a very useful roadmap to assist
parties to co-operate over how discovery will be
conducted.
• The checklist establishes a framework to assess a
proportionate and reasonable search for documents
tailored to suit the requirements of each matter.
• All of these discussions must take place prior to the
first case management conference.
• The Checklist can be used by counsel and the Judge
Use a Checklist as a Guide

60. Working as a team
• Meet and Confer is one aspect
• Case Management Conference brings in the
other players
• Judge can assist in the co-operative process

61. • Use the case management
conference actively to superintend
the discovery process
• Encourage narrow targeting of
requests for ESI.
• Consider imposing limits on E-
Discovery.
• Consider sampling to determine
relevance, need and cost of more
expansive discovery.
• Develop procedures for production of
information in usable form.
• Develop procedures to deal with
inadvertent disclosure of privileged
material.
• Consider cost shifting if the
information sought is not reasonably
accessible – may require a
consideration of document storage
and retention policies of the party in
question.
Using the Case Management
Conference

62. • Always encourage co-operation and
continually remind the parties of the
necessity for reasonableness and
proportionality.
• The obligation to co-operate should be
an on-going requirement.
• Because E-Discovery is process
driven, it is important to cooperate over
at all stages of the process, especially
the with Keyword searching or using
Predictive Coding.
For Judges - Emphasise Co-Operation

63. • Is the scope of discovery reasonable in the
context of the case
• Is the scope of discovery proportional to the
matters at issue
Use reasonableness and proportionality as a
yard stick to measure stances of counsel on E-
Discovery issues.

64. What is
Proportionality?
• The relationship
between cost and
value in the
proceedings
• Is the extent or
manner of the
discovery sought
justified by the
amount and matters
at issue in the
proceeding.

65. • Focus and reduce the issues to be determined
within the framework of the pleadings.
• Proper Case Management will distil the main
areas of dispute
• May only be about a technological method or
the scope of discovery of a class of documents
Worst Case Scenario – A Disputed Hearing

66. Looking Ahead
• Particular methods of discovery will
depend upon the case in hand
• Different products may be more
relevant to the different parts of the
discovery process
• Lawyers and Judges are going to have to
become intimately aware of the
technologies that are available and of
the technological processes that can
underlay the discovery process if the
advantages of cost reduction and
proportionality that underlie the rules
are to be achieved