This book is only available in PDF format 
Published: 22 September, 2005
Pages: 116

Introduction

Effective pre-trial disclosure and gathering of information is essential to making a party’s case and assessing the strengths and weaknesses of both that case and the opponent’s case. In the past 20 years there has been a markedly increasing trend towards openness in litigation, including greater pre-trial disclosure of information and the elimination of “trial by ambush” and surprise disclosures at trial. Pre-trial information and disclosure procedures are now aimed at preventing parties from keeping their cards close to their chest. Consequently, the traditional adversarial approach has been considerably eroded.

Discovery of documents is the most important process for the pre-trial disclosure of information. This is because documentary evidence is often the most reliable. To a considerable extent it underpins the accuracy of judicial decision-making and the credibility of the civil justice system. But the process can be very time consuming and costly. Lord Woolf’s 1995 interim report in the United Kingdom “Access to Justice” asserted that “The scale of discovery, at least in larger cases, is completely out of control”.

Relevant documents which are required to be discovered pre-trial are those which directly or indirectly support or adversely affect any party’s case, including those which may lead to a train of inquiry in this regard. They include not only hard copy documents but also electronic documents. “E-discovery”, or discovery of information recorded on computer hard drives and other electronic storage media, is one of the most significant of the rapidly snowballing developments in this area. There is now a veritable jurisprudential industry in the United States covering this area. The courts there have become less and less tolerant of e-discovery defaults and have imposed severe sanctions, particularly for failure to preserve relevant electronic information. Parties and their lawyers are now very much “on notice” of the need to disclose, preserve and produce e-documents. There are also important developments occurring in this area in New Zealand. Whilst the unique issues and challenges posed by electronic discovery can be accommodated to some extent within the existing High Court Rules, new rules are likely to be required. The Rules Committee is currently looking at this. Electronic communications such as emails can provide golden opportunities for a persistent party seeking information and create a trail of smoking guns for those who have them. A goldmine for some, a minefield for the others.

The processes of pre-trial information impose increasing legal and ethical responsibilities on lawyers. Most clients have little knowledge or understanding of the requirements of pre-trial processes such as discovery. The solicitor acting for a party in litigation making discovery is now positively required to ensure that the party understands the obligations involved and that these are complied with. If properly managed, the discovery process is a highly valuable strategic tool. On the other hand, if parties and their lawyers do not focus early and diligently on their discovery obligations, discovery shortcomings may overwhelm, or even supplant, the merits of the case, as a number of recent decisions relating to e-discovery illustrate.

The High Court Rules relating to discovery underwent significant amendment, with effect from 1 November 2004. Discovery orders will now usually be made at the first case management conference that is held for the proceeding. Discovery is now made in a new form of affidavit of documents, with a detailed schedule of documents appended. Specific provision is now made for documents in respect of which confidentiality is claimed, separate from those in respect of which privilege is claimed.

The emphasis in this seminar and accordingly this booklet is on the means by which pre-trial information can be obtained, discussion of recent developments and of the constraints and grounds of objection in this regard which exist. The law applicable to the respective pre-trial processes is considered but is not in all cases dealt with in depth. Some avenues for obtaining pre-trial information are simply signalled.

The intention is to discuss as well practical aspects and the opportunities which the various pre-trial processes provide in litigation, particularly in the context of developments in new technology and the various forms of electronic information. Allied to this is consideration of the increasing obligations, demands and responsibilities imposed on lawyers in overseeing and managing these increasingly important pre-trial processes.

Gillian Coumbe
Austin Forbes KC
September 2005