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:
- Printing all documents to paper
- Scanning / converting documents to PDF
- 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.
- 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.