E-Discovery in Cross-Border Litigation, Part VI

February 4, 2013

Overview of How E-Discovery Is Handled in Various Forum Countries

crossborder ediscoveryGlobal companies often have operational nuclei in various countries in order to leverage the local economies.  Although the physical operations may be spread broadly in a geographical sense, some multinational corporations centralize their technology operations in a series of data centers that may not be optimized for the nuanced and complex issues of cross-border e-discovery.

This inevitably means that many large companies are assuming substantial compliance risk and exposure to future litigation costs which, understandably, may not have been contemplated years ago when the companies deployed their technological infrastructures.

The type of legal system employed in a particular country also impacts how discovery—and thus e-discovery—is likely to be addressed. For example, an important nuance between common law and civil law systems is the importance placed on discovery.

Australia

On January 29, 2009, Chief Justice Black issued the Federal Court of Australia’s revised Practice Note 17. That Practice Note has since been re-issued as Practice Note CM 6 – Electronic Technology in Litigation Rules (“the Practice Note”). Sections 1.1 and 1.2(b) of the Practice Note permit the court to order discovery in electronic format where “the use of technology in the management of documents and conduct of the proceeding will help facilitate the quick, inexpensive and efficient resolution of the matter.” The Practice Note attachments are buttressed by checklists, sample protocols, and a glossary to provide valuable tools for practitioners.

While not discussed in detail by the Practice Note, the intent is to compel parties engaged in e-discovery, that is, in good faith, and attempt to “agree[] upon a practical and cost-effective discovery plan” that is reasonable— mindful of the issues and cost dynamics and other problems that can plague e-discovery. The High Court Amendment Rules also introduce a new listing and exchange protocol with inspection to take place by way of electronic exchange.

New Zealand

In New Zealand the High Court addresses e-discovery in the High Court Amendment Rules (No 2) 2011 (the new discovery rules). In addition to the introduction of new principles of cooperation and proportionality, there are new duties that require the preservation of documents, often before proceedings are commenced, and the duty of disclosure of documents when pleadings are filed. The High Court Amendment Rules provide a discovery checklist which parties must consult and, depending on the specific scenario, which may require parties to make standard or tailored discovery.

The High Court Amendment Rules also introduce a new listing and exchange protocol with inspection to take place by way of electronic exchange.

Singapore

Singapore introduced new electronic discovery rules in 2009 as part of Practice Direction 3 (“PD 3/2009”). The practice direction creates a framework for parties to request discovery of electronically stored information. PD 3/2009 does not automatically apply, but either party may opt in by requesting its application, or both parties can agree to adopt the new rules. The court can also order compliance.

Under PD 3/2009, the scope of discovery is similar to that found in the United Kingdom. Documents need only be indirectly relevant to be discoverable, however: in Surface Stone Pte Ltd v Tay Seng Leon and another [2011] SGHC 223, the Singapore High Court examined how to determine when documents are part of a “train of inquiry” leading to relevant documents and are thus discoverable, and outlined considerations for ordering discovery and inspection of compound documents, such as storage media containing numerous distinct documents.

In the next and final edition of this series, I will conclude with a discussion on unifying e-discovery globally.

E-Discovery in Cross-Border Litigation: Part I

E-Discovery in Cross-Border Litigation: Part II

E-Discovery in Cross-Border Litigation: Part III

E-Discovery in Cross-Border Litigation: Part IV

E-Discovery in Cross-Border Litigation: Part V

E-Discovery in Cross-Border Litigation: Part VI

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