Category: Tips

Did you know you can use LawFlow to create a chronology of facts?

High Court Rule 9.9 requires parties (primarily the plaintiff) to prepare a “chronology of the facts it intends to rely upon at the trial or hearing“, cross-referenced to relevant documents.

LawFlow includes a tool specifically for creating the chronology. It allows you to:

• Create chronology events;
• Link those events to one or more relevant documents;
• Add notes to events;
• See which chronology events you or other team members have added to the project; and
• Generate a Word version of the chronology which can be edited and formatted into the appropriate final form.

This tool is directly integrated into your LawFlow projects, allowing you to carry out discovery, issue analysis, preparation of a common bundle, and preparation of the chronology using the same LawFlow platform. It also allows chronology entries to be recorded at any time, and by any team member, during the discovery process and beyond, which can be more efficient and effective than attempting to prepare the chronology in isolation.

Chronology functions are available on the Analysis menu of projects, and the Analysis tab of documents.

For more information, please contact us.

LawFlow has specific features for carrying out tailored discovery under the High Court Rules. Unlike ‘standard discovery’, tailored discovery requires documents to be discovered in categories (or some other method of classification). Examples of categories may include:

• Date ranges
• Specific subjects
• Types of documents
• Key individuals

This can be useful for limiting the scope of discovery to ensure it remains focused and proportionate, though it can also be used to expand the scope of discovery in appropriate cases. It can also make it clearer between the parties why certain documents have been discovered.

In LawFlow, you can set up the tailored discovery categories relevant to your project, and then specify which category (or multiple categories) relevant documents fall into. When you generate document lists, you can include a column showing each document’s category, and (optionally) choose to group the documents by category (e.g. so all “Category A” documents are listed together, then “Category B”, etc).

It is important to consider tailored discovery before attending the first Case Management Conference when discovery orders are usually made. If you want to seek tailored discovery, or think that another party may seek it, you should consider in advance which categories are appropriate. Ideally, this can be agreed with the other parties before the Conference so that orders can be made by consent.

For more information on using LawFlow for tailored discovery, please contact us. If you are already using LawFlow, you can set up tailored discovery categories for a project via Documents > Tailored discovery categories.

By its nature, discovery often involves disclosing confidential documents, or documents containing confidential information.

Confidentiality is usually not grounds for withholding (i.e. not disclosing) a discoverable document. Documents can be withheld on the grounds of privilege (either as codified in the Evidence Act 2006, or the residual common law privileges) or irrelevance, but there is no privilege for “commercial sensitivity” or other such aspects of confidentiality (see ss 68-70 of the Evidence Act for other grounds).

But this does not mean that confidential documents need to be handed over without restriction.

The starting point is relevance, under the “adverse documents” test. If a document is not required to be discovered, then issues of handling confidential information in that document should not arise.

If a document is discoverable, then High Court Rule 8.15(2)(f) permits the producing party to propose “restrictions … to protect the claimed confidentiality of any document”. Rule 8.28(3) then permits the producing party to produce those documents subject to the proposed restrictions. If the receiving parties wish to challenge the proposed restrictions, they may do so pursuant to Rule 8.25.

There are several important points to note:

1. The confidential documents must be listed as confidential documents in the affidavit of documents (usually ‘part 3’).
2. The proposed restrictions on the confidential documents must be stated in the affidavit of documents itself.
3. The producing party is free, within reason, to propose whatever restrictions they consider appropriate, though this should be read subject to the duty to co-operate.
4. It is up to the receiving party to challenge the restrictions, if they wish. This will usually require an interlocutory application or a memorandum seeking directions (a party that inappropriately claimed confidentiality, or proposed inappropriate conditions, would likely have to pay costs).

What restrictions can be applied?

While rule 8.30(4) limits the use of discovered documents to the purposes of the proceeding only, and prevents extra-judicial disclosure, the producing party still may wish protect the confidentiality of certain information.

The producing party is at liberty to propose appropriate restrictions. Common restrictions include:

• Redacting documents. While relevant information cannot be withheld on the grounds of confidentiality, non-relevant confidential information could be redacted, making the resulting document discoverable with redactions (“DWR”; the same can apply to privileged documents). For example, a document may be commercially sensitive because it contains sales figures or name of other customers. If sales figures or customer names are not relevant to the dispute, a redacted version of the document omitting that information could be provided (as a Part 1 document).

  LawFlow includes an easy-to-use redaction tool that allows you to safely redact documents directly in your browser.

• Limiting inspection. Confidential documents are sometimes provided on an “attorney’s eyes only” basis that limits inspection to the receiving party’s lawyers and experts only. This is usually supported by an undertaking from the receiving party’s solicitor.
• A combination of the above, where redacted versions are made available to the receiving party themselves (without restrictions), and the full versions are available for the receiving party’s lawyers (with undertakings) to inspect in order to confirm the legitimacy of the redactions.

Common sense should prevail

Care should be taken not to claim confidentiality over-zealously. Rule 8.30(4) provides a reasonably robust level of protection to all discovery documents, and it is not necessary (nor appropriate) to claim confidentiality across tracts of documents without an “elevated” need to do so. A robust case should be made.

In practice, most discovery issues of this nature can and should be resolved between the parties on a common sense basis – which is supported to some extent by the duty to co-operate that the new rules impose.

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.

As electronic documents continue to proliferate, a solution designed for New Zealand requirements such as LawFlow can enable discovery to be undertaken efficiently and effectively.