Legislation amending the Rules of the Superior Court on Discovery comes into effect on the 16th April 2009. The amendments to the Rules were necessitated mainly as a result in the proliferation of electronically stored information such as email communication. The new Rules also address other procedural changes which practitioners need to be aware of.

The main points are as follows:

  • The word "document" for the purposes of both inter party and non party discovery includes all electronically stored information.
  • The Rules provide that parties seeking discovery of documents, which include electronically stored information, must specify whether they require the information in searchable format and, if so, whether for that purpose they require inspection and searching facilities using the assistance of the IT and communication systems of the party making the discovery.
  • The court can order that the information is provided in searchable format or if it cannot be searched, without the party seeking discovery incurring unreasonable expense, the court can direct the party making discovery to make available searching and inspection facilities using their own IT systems.
  • The court may also attach conditions to the Order to ensure that confidential information, which is the not the subject of the Order, is not accessed.
  • To assist with the implementation of this provision, the court may also appoint an independent expert to conduct the search.  
  • Where a party making discovery finds that the process is excessively costly or onerous then they can apply to vary the order of discovery.  
  • The Rules also address the issue of labelling and classification of documents in Affidavits of Discovery. Documents must now be listed and correspond with the categories of documents in the Order/agreement for discovery or be listed in a sequence corresponding with the manner in which the documents have been stored or kept in the usual course of business.
  • Finally the Rules provide for a new form of affidavit of discovery. This includes a new paragraph which clearly puts it beyond doubt, that the person swearing the affidavit understands the extent and duties of their obligations in making discovery.  

Comment

The Rules will be welcomed by practitioners. Ten years have passed since the Rules were last amended. In the intervening period, new technologies have not only emerged, but become the dominant means of communication. Under the old rules, it had become implied that documentation sought in discovery included electronically stored information. The new Rules expressly state this. The Rules tidy up procedural issues for practitioners in relation to the listing and scheduling of documents in Affidavits of Discovery. Perhaps most importantly, the new wording of the Affidavit now expressly states the purpose of making discovery so that people swearing the Affidavits are under no illusion as to their obligations both to the court and the opposing party in making discovery.