Discovery is commonly referred to as a particular factor leading to the increasing cost and delay in civil litigation.  Most common law jurisdictions have abandoned the traditional Peruvian Guano test in favour of an adverse documents test, and made specific rules relating to electronic discovery.  There has been debate about reform in New Zealand since 2002, when a proposal to replace the Peruvian Guano test was strongly opposed by the profession. 

Since 2009 the Rules Committee has been in a particular process of consultation with the profession about discovery reform.  New rules have now been made which come into effect on 1 February 2012.

There are three major changes.  First, there will be initial disclosure.  All parties filing their pleadings must serve on the other parties a bundle of the documents referred to in the pleading and any additional principal documents.  Second, instead of there being an obligation to discover all relevant documents on the basis prescribed by Peruvian Guano there will be standard discovery and tailored discovery.  Standard discovery will involve the discovery of documents on which a party relies or which adversely affect that party’s own case or another party’s case or support another party’s case.  Tailored discovery, which must be ordered when the interests of justice require something more or less than standard discovery, requires discovery orders tailored to the needs of the case, setting out a method of classification by which documents are to be identified.  The discovery order may include specific directions as to the manner of discovery.  The third major reform is the introduction of the electronic listing and exchange of documents.  A checklist of matters to be considered in this regard, and a protocol for more complex electronic listing and exchange, are set out in a schedule.  A party may obtain an exemption if the Judge is persuaded that electronic discovery would be impracticable or unjust.

Overlaying these changes is a specific rule requiring the parties to co-operate with each other on the processes of discovery and inspection at an early stage.  There are also specific new rules including an obligation to preserve documents and an obligation to carry out a reasonable search.

These rules will involve litigation practitioners changing the way in which they operate on a day-to-day basis in relation to discovery.  Their aim is to reduce cost by introducing a more flexible and co-operative discovery process.  The success of the new rules will turn on the profession adopting and implementing these new rules.  The starting point will be understanding those rules, and this seminar is designed to ensure that that goal is met.

The Hon Justice Asher, High Court, Auckland
The Hon Justice Fogarty, High Court, Christchurch