A comparative overview of e-discovery regimes in Australia, New Zealand, Hong Kong and Singapore

1. E-Discovery in the APAC Region
Judge David Harvey - Auckland District Court - New Zealand

2. Hong Kong
Singapore
Australia
New Zealand
All have e-discovery regimes

3. Only New Zealand has developed a dedicated set of rules
to cover discovery
Peruvian Guano discovery is out
Relevance to issue test applies to ALL discovery

4. All other jurisdictions have developed special protocols or
practice directions for e-discovery
Protocols have an engagement threshold

5. Australia –
200 or more documents relevant to the proceeding have been created or
stored in electronic format + the use of technology and document
management will facilitate quick, inexpensive and efficient resolution of the
matter
Singapore – amount of claim > $SG 1 million + 2000 or more pages of
discoverable documents – predominantly e-format
Hong Kong – amount of claim > $HKD 8 million + document search involves
at least 10,000 documents
Hong Kong and Singapore – discretion vested in Court to order Practice
Direction applicable

6. Court and Judicial Management
Shift away from parties-driven approach to e-discovery
All the APAC systems involve a case management
conference as a key step
Requirement to satisfy Judge that discovery is being
properly considered

7. Consult, Confer, Cooperate
All APAC regimes emphasise cooperation rather than
adversarialism
Emphasis is upon reasonable and proportional discovery

8. Reasonable and Proportional
Approaches

9. Singapore
• The number of documents involved;
• The nature of the case and the complexity of the issues;
• The value of the claim and the financial position of each party;
• The ease and expense of retrieval of any particular electronically
stored document or class of electronically stored documents
including:
• The availability of electronically stored documents or class of
electronically stored documents sought from other sources; and
• The relevance and materiality of any particular electronically
stored document or class of electronically stored documents
which are likely to be located to the issues in dispute.

10. Hong Kong
The number and significance of electronic documents;
The nature and complexity of the proceeding;
The ease and expense of document retrieval.

11. Checklists

12. All regimes employ a form of checklist
Rules are broad brush statements of principle
Checklists address the detail and technical aspects of
discovery

13. Australia
Australia addresses not only e-discovery but also document
management and presentation at trial
– A pre-discovery conference checklist;
– A default document management protocol;
– An advanced document management protocol;
– A pre-trial checklist.

14. Singapore
Checklist emphasises good faith collaboration.
Details of
– search terms,
– the scope and format of a list of documents,
– review for privileged material and
– the method of inspection.

15. Hong Kong
• Electronic Document Discovery Questionnaire (EDDQ)
• Based on English e-discovery questionnaire
• Sample protocol for e-discovery

16. Early Case Assessment
• In New Zealand essential documents must be filed along
with the statement of claim
• Hong Kong – Draft EDDQ filed with initial pleadings.
• Thus the focus is on an aspect of an overall Information
Governance strategy.

17. Utilisation of Technology

18. Hong Kong and Singapore
• Hong Kong and Singapore rules suggest that preliminary evaluation
and development of data sets is done by key word searching and
emphasis is placed upon the elimination of document duplication.
• Both the Singapore and Hong Kong rules suggest a staged
discovery process in terms of the utilisation of technologies.
• Initial discovery or general discovery may take the parties to a
certain point and a further stage of discovery may be necessary to
advance the matter.
• An advantage of a staged discovery approach is that the parties can
continually keep an eye upon issues of reasonableness and
proportionality and of course cost.

19. New Zealand
• The New Zealand rules go into some detail in the glossary
of technological terms if only to ensure that the parties are
clear about what the various technological solutions may
achieve.
• In New Zealand there is provision for a tailored discovery
approach that may be made by agreement with the
assistance of a Judge. A tailored discovery order may
limit or restrict discovery

20. Use of Technical Expertise
• The obtaining and provision of technical expertise is implicit
within all of the rules
• Recognised that evaluations of reasonableness and
proportionality can only be undertaken after a full
consideration of the effectiveness of technological solutions.
• May be necessary for a technical expert to attend at a case
management conference to provide expert opinion or
assistance to the parties and to the Court in addressing a
possible solution.

21. Hong Kong
• Hong Kong makes provision for technical expertise to be obtained to
address the following aspects of e-discovery before first case
management conference
– The categories of ESI within the control of the parties or contained in their
computer systems and devices;
– The scope of a reasonable search of ESI;
– The deployment of techniques to reduce the burden and costs of discovery of
ESI e.g key word searching, de-duplication, identification of privileged material;
– The preservation of ESI;
– Format in which ESI information should be produced; and
– The digitisation of paper documents

22. Technological Competence of Judges
and Lawyers
Lawyers need to know how technology and data analytics
may be employed so they can engage meaningfully in
confer and consult and case conference discussions
Judge must have a reasonable level of technical
competence so that properly informed directions or orders
are made