Changes to discovery rules in force from 1 February 2012

A number of amendments made to District Courts and High Court rules about discovery will come into force on 1 February 2012.

The amendments were made by Order in Council on 3 October and make important changes to the rules for discovery of documents, partly to reflect developments in electronic documentation and the use of email.

From 1 February 2012 all discovery will be electronic unless a party is able to obtain an exemption by persuading a Judge that electronic discovery would be impracticable or would be unjust. A new category of discovery - "tailored discovery" - is also created.

The High Court Amendment Rules (No 2) 2011 (2011/351) amend the High Court Rules and make a number of changes. These include:

• Parties must co-operate with each other at an early stage to discuss the methods they are going to use to conduct a reasonable search that is proportionate to the proceeding.

• The first pleading filed by a party will usually have to be accompanied by a bundle of the principal documents that the party has used when preparing the pleading.

• Discovery orders will be mandatory in all standard track cases, unless discovery is dispensed with, and will usually be made at the first case management conference.

• Standard discovery will be narrower in scope than the current Peruvian Guano test (documents that are or may be relevant to issues in the proceeding or may lead to a chain of inquiry).

• A new category of "tailored discovery" is created for several defined categories of case.

• All discovery must be given electronically, unless a party obtains an exemption by persuading a Judge that electronic discovery would be impracticable or unjust.

• A new Schedule 9 is introduced to the Rules with the intention of facilitating the process of discovery and subsequent inspection of documents discovered in a party's affidavit of documents. This includes a practical discovery checklist that parties must consider and a listing and exchange protocol.

• Parties are required to co-operate in the preparation of a common bundle of documents, with new rules about the indexation and chronological order of documents in the common bundle.

• The procedure for applications by prejudiced shareholders under section 174 of the Companies Act 1993 is altered. These will have to be made by originating application under Part 18 of the High Court Rules, and applications as to service must be sought.
  

The District Courts (Discovery, Inspection, and Interrogatories) Amendment Rules 2011 (2011/347)  amend the District Courts Rules 2009 and are necessary as a consequence of the enactment of the High Court Amendment Rules (No 2) 2011.