New court rules in relation to E-Discovery which came into effect on 16 April 2009 and apply to litigation in the Superior Courts, are now beginning to finally impact on practice. The new rules make it easier to seek and inspect such evidence and seek to strike a balance between parties’ rights to access relevant evidence, and avoiding excessive burden and expense on parties giving discovery of electronic data.

A substantial amount of documentation is now created and/or stored electronically and this electronic equipment often contains important evidence. The new rules set out specific obligations with regard to electronic discovery.

The rules also impose an obligation on all persons giving discovery to swear on affidavit that they understand their obligation to give adequate discovery, including discovery of documents or data which may damage their case.

The following provisions are of particular relevance:

  • a party may seek electronic data in searchable form from its opponent and state whether they require inspection and search facilities using the IT systems owned or operated by the party controlling the information;
  • the court may order that the party provide information in searchable format;
  • where computers contain sensitive non-discoverable data, the court instead may order that an independent expert carry out the inspection and search for relevant electronic data (the costs of the independent expert will be met by the party seeking discovery);
  • where a party giving discovery finds that searching for the documents or data is excessively costly or onerous, it may apply to the court to seek to vary or narrow the scope of the discovery order;
  • a party giving discovery must list or provide the documents or data according to agreed categories or in a sequence corresponding with the manner in which the documents or data has been stored or kept in the usual course of business – the intention is to make discovery more comprehensible and it is likely that this will result in discovery being provided on a series of discs with a searchable index; and
  • all parties giving discovery must swear in an affidavit of discovery that they understand their obligation to give discovery of documents and electronic data (within the categories of discovery agreed or ordered by the court) which may help or damage their case in any way.