E-Discovery in the APAC Region

Judge David Harvey - Auckland District Court - New Zealand

Hong Kong

Singapore

Australia

New Zealand

All have e-discovery regimes

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

All other jurisdictions have developed special protocols or practice directions for e-discovery

Protocols have an engagement threshold

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

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

Consult, Confer, Cooperate

All APAC regimes emphasise cooperation rather than adversarialism

Emphasis is upon reasonable and proportional discovery

Reasonable and Proportional Approaches

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.

Hong Kong

The number and significance of electronic documents;

The nature and complexity of the proceeding;

The ease and expense of document retrieval.

Checklists

All regimes employ a form of checklist

Rules are broad brush statements of principle

Checklists address the detail and technical aspects of discovery

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.

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.

Hong Kong

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

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.

Utilisation of Technology

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.

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

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.

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

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