High Court Amendment Rules (No 2) 2011

Schedule 9 Discovery checklist and the listing and exchange protocol

rr 8.10, 8.11, 8.12, 8.15, 8.16, 8.27

The purpose of this schedule is to assist the parties in carrying out discovery in accordance with subpart 1 of Part 8, and to specify detailed requirements for listing and exchanging documents when giving discovery.

Part 1
Discovery checklist

1 Assessing proportionality

• The parties must—

  • (a) review the pleadings to identify the categories of documents that would be required if a standard discovery order were made in the terms set out in rule 8.7; and

  • (b) identify where those documents are likely to be located, including the following:

    • (i) the individuals likely to have those documents or know where they might be located; and

    • (ii) the location and likely volume of any documents held as hard copies or electronically; and

    • (iii) whether other people have discoverable documents within the client's control (for example, lawyers, accountants); and

  • (c) estimate the likely volume and cost of discovering the above material, including the following matters:

    • (i) the approximate number of hard copy and electronic documents; and

    • (ii) the estimated cost of assembling and discovering those documents (including reviewing for relevance, privilege and confidentiality, and listing the documents); and

    • (iii) whether specialist expertise is required to help the making of informed decisions (including an accurate assessment of the likely costs involved); and

  • (d) assess and discuss with the other parties whether that estimated cost is proportionate to the sums in issue or the value of the rights in issue in the proceeding. If the cost is disproportionate, or if, having regard to rules 8.8 and 8.9, the interests of justice require the making of a tailored discovery order, parties should seek such an order.

2 Extent of search

• The parties must—

  • (a) assess whether any of the methods identified in clause 3(2)(a)(ii) may assist in locating electronic material efficiently; and

  • (b) consider whether it would be appropriate to seek a tailored discovery order about the extent to which a party must search for documents to reflect the circumstances of the case, including (but not limited to) the following:

    • (i) the number of documents involved; and

    • (ii) the nature and complexity of the proceeding; and

    • (iii) the ease and expense of retrieval of any particular document; and

    • (iv) the significance of any document that is likely to be located during the search.

3 Tailored discovery

• (1) This clause applies when tailored discovery is appropriate having regard to rules 8.8 and 8.9, or when any party intends to apply for an order for tailored discovery.

  (2) The parties must—

  • (a) endeavour to agree a proposal in relation to the discovery order that should be made, with respect to the following:

    • (i) categories: identify the categories of documents required to be discovered by the parties, and for each category seek to limit discovery to what is reasonable and proportionate. This may be done by, for example, specifying—

      • (A) subject matter:

      • (B) date range:

      • (C) types of documents:

      • (D) key individuals (for example, those who are company directors or are at a specified management level); and

    • (ii) methods and strategies for locating documents: seek agreement on what methods and strategies are appropriate to conduct a reasonable and proportionate search for the documents as identified in paragraph (a), including (but not limited to) the following:

      • (A) appropriate keyword searches; and

      • (B) other automated searches and techniques for culling documents (including concept searching, clustering technology, document prioritisation technology, email threading, and any other new tool or technique); and

      • (C) a method to be used to identify duplicate documents; and

      • (D) whether specialist assistance is required to locate documents efficiently and accurately; and

  • (b) discuss whether a staged approach may be appropriate in conjunction with identifying the categories and methods to be adopted by the parties. Parties may agree on—

    • (i) whether any different deadlines are appropriate; and

    • (ii) whether to look initially at select categories (for example, date ranges or key individuals).

4 Listing and exchange

• (1) Parties are required by rules 8.12(2) and 8.27(2) to use the listing and exchange protocol in Part 2 of this schedule unless a discovery order otherwise requires. Parties must—

  • (a) consider whether the listing and exchange protocol is appropriate and seek to agree any modifications; and

  • (b) if any electronic material contains relevant information that cannot be seen if provided to other parties in paper or image form, consider what special arrangements will be necessary for inspection (for example, unusual software licences are required).

  (2) If the parties agree to modify the listing and exchange protocol, the agreement between them must be recorded in writing. The discovery order must record that the parties have agreed to modify the listing and exchange protocol, but it is not necessary for the specific modifications to be contained in the discovery order or be considered by the Judge.

  (3) To reduce unnecessary costs of listing documents, parties are encouraged to—

  • (a) use native electronic versions of documents as much as possible; and

  • (b) use the extracted metadata from native electronic documents, instead of manually listing documents; and

  • (c) convert documents to image format only when it is decided they are to be produced for discovery; and

  • (d) if document images are to be numbered, only number those images if they are to be produced for discovery.

5 Presenting documents at trial

• The parties must—

  • (a) consider with the other parties how documents will be used efficiently and effectively in preparation for and in the conduct of the trial (for example, whether an electronic bundle of documents will be used); and

  • (b) ensure the format adopted for listing and exchange of documents is compatible with any such uses.

Part 2
Listing and exchange protocol

6 Protocol requirements

• (1) Parties are required to—

  • (a) list documents, providing the following detail for each document:

    • (i) document ID:

    • (ii) date:

    • (iii) document type:

    • (iv) author:

    • (v) recipient:

    • (vi) parent document ID:

    • (vii) privilege category; and

  • (b) exchange documents electronically by way of—

    • (i) a single, continuous table or spreadsheet, with each column exclusively containing the detail from paragraph (a); and

    • (ii) multi-page images in PDF format (or another format if agreed).

  (2) Parties should endeavour to apply the specific details in clauses 7 to 11 to ensure consistency for listing and exchange.

  (3) Any technical terms have the meanings set out in the glossary in Part 3.

7 List of documents format

• (1) The format of the document descriptions should be as follows:

  Field No	Field name		Description
  1	Document ID		The document ID must be a unique reference
  			The format must be alphanumeric, for example, AAA.000001, AAA.01.0001, etc Parties must agree on Party Codes, for example,— AAA—Party A BBB—Party B CCC—Party C
  2	Date		The date appearing on the face of the document Dates must appear as DD/MMM/YYYY, for example, 01 Jan 2010 If a document is partially dated or only partially legible, this field must contain such date information as can be determined from the document If the date is estimated, state that in an additional field titled “Estimated”
  3	Document type		The type of document being listed, for example, email, letter Parties may agree to construct a predefined list for all document types
  4	Author		The name of the author of the document If only part of either the individual or organisation can be determined, provide the information available
  5	Recipient		The name of the recipient(s) of a document If only part of either the individual or organisation can be determined, provide the information available
  6	Parent document ID		This field will be populated with the document ID of the parent document This field will be populated only if a document is attached to, or embedded within, another document
  7	Privilege category		This field is to be populated if the document is subject to a privilege claim

  (2) Documents may be listed otherwise than chronologically if a different order would be more convenient.

  (3) Other than document ID, if information cannot be determined for a description it must be left blank.

  (4) The parties may agree not to list face value descriptions for electronic documents, and instead use agreed metadata material that is extracted from the electronic files. In all cases, however, the method must be agreed. This is to ensure parties' descriptions are consistent with each other.

  (5) Any document ID used in any supplementary discovery must be unique and run sequentially from the last number used in the previous list.

  (6) The list must include all documents previously disclosed by that party in accordance with rule 8.4.

8 Specific document decisions

• Duplicate documents

  (1) The following applies in relation to duplicate documents:

  • (a) parties must take reasonable steps to ensure exact duplicate documents are removed from the discovered documents:

  • (b) a copy or version of a document containing a material modification or an obliteration or other marking must be treated as a separate document:

  • (c) an email and attachment are to be considered a duplicate only if the entire email and attachment document group is contained elsewhere:

  • (d) a document attached to a document group is not to be classed as a duplicate if it is contained as a stand-alone document elsewhere:

  • (e) parties should discuss the method of de-duplication at an early stage.

  Emails

  (2) The following applies in relation to emails:

  • (a) all individually discoverable emails must be listed separately:

  • (b) if an email is part of a chain, parties should make reasonable efforts (subject to issues of time, cost, and proportionality) to—

    • (i) discover the top-level version of each relevant email contained within the chain; and

    • (ii) investigate whether email chain technology may assist in directing parties to the end point of an email chain.

  Attachments

  (3) The following applies in relation to attachments:

  • (a) any document that is attached to or embedded within another document is to be classed as an attachment:

  • (b) attachments must be listed as separate documents:

  • (c) in general, attachments must appear immediately after the parent document in the list, and will take the next document ID.

  Consistency of names

  (4) The following applies in relation to consistency of names:

  • (a) the parties must consult and co-operate with each other to agree on a set list of common names to ensure consistency across the document descriptions:

  • (b) consistent naming conventions may be established for fields like document type, author, and recipient.

  Native electronic documents

  (5) The following applies in relation to native electronic documents:

  • (a) electronic documents that do not lend themselves to conversion to PDF (for example, complex spreadsheets, databases, etc) may be exchanged in their native electronic format:

  • (b) parties may agree on a list of electronic file types that do not lend themselves to conversion to PDF.

  Colour documents

  (6) The following applies in relation to colour documents:

  • (a) colour versions of documents need to be created only if it will be evidentially significant to see colour in a document:

  • (b) if it is technically impracticable to reproduce a document in colour, the party giving discovery must make the original document available for inspection in its native file format.

9 Privilege

• (1) Parties must agree on any specific privilege requirements for listing and exchange.

  (2) Documents for which privilege is claimed may be group listed in accordance with rule 8.16(2).

  (3) Documents must be given a description in accordance with clause 7(1), unless the description discloses information contained in a communication for which privilege is claimed.

  (4) The parent document ID information must be noted in the list if the privilege claim relates to part of a document group.

10 Redactions

• (1) The redacted sections of a document must be blacked out on the image. Parties may agree that a label or note must be provided explaining the grounds for the redaction.

  (2) The party redacting or altering a document must ensure that the original un-redacted and unaltered version is preserved so that it remains available to be inspected if required.

11 Exchange format

• (1) The format of the table or spreadsheet must be as follows:

  • (a) each document must be contained within a separate row and all field entries must be contained within single cells; and

  • (b) a delimiter, for example, “;”, must be used for any multi-entry fields, for example, “; recipient”.

  (2) Documents must be provided as multi-page PDF images (or in another format if agreed).

  (3) The file name for each individual document must be “document ID.pdf”.

  (4) If a document has relevant metadata, parties may request its provision in native file format. Either—

  • (a) the document ID must be contained within the name of the native file format, for example, “document ID.xls”; or

  • (b) the file name of the native file must be specified in an additional field in the spreadsheet.

  (5) The parties may agree to provide documents as searchable images.

  (6) If the software technology available to the party giving discovery makes it reasonably possible, all image documents must have the document ID clearly marked on at least the first page of the document.

  (7) The spreadsheet and the folder with the documents should be provided on a media disk.

  (8) Parties should not place any restrictions on the spreadsheet or documents that prevent opposing parties from accessing them.

Part 3
Glossary

In this schedule, unless the context otherwise requires,—

attachment means any document that is attached to or embedded within another document

clustering means grouping documents by identifying conceptually alike documents

concept searching means a search that attempts to match results with the query conceptually (rather than just by identity or similarity of words)

de-duplication means the process of identifying and removing duplicate documents from a collection of documents so that only 1 unique copy of each document remains. A cryptographic hash function such as the Message Digest algorithm 5 may be used to generate a digital fingerprint for an electronic document. The digital fingerprint of a document can then be electronically compared against the digital fingerprint of any other document to determine whether the documents are exact duplicates. De-duplication may also be implemented by using a cryptographic hash function applied to a group of documents

document has the meaning set out in rule 1.3 of the High Court Rules and includes all ESI

document description means the set of data fields used to describe a document under clause 7(1)

document ID has the meaning set out in clause 7(1)

document prioritisation technology (predictive coding) means technology that analyses the decisions of a human review of a sample set of documents. The software then prioritises/ranks the remainder of documents based on the decisions made on the sample documents, which allows the most relevant documents to be identified first

electronic image or image means an electronic representation of a paper document or electronically stored information. An electronic image may be a searchable image or an unsearchable image

electronically stored information (ESI) means any information stored electronically. It includes, for example, email and other electronic communications such as SMS and voicemail, word processed documents and databases, and documents stored on portable devices such as memory sticks and mobile phones. In addition to documents that are readily accessible from computer systems and other electronic devices and media disks, it includes documents that are stored on servers and back-up systems and electronic documents that have been deleted. It also includes metadata and embedded data

email threading (email chain) means technology that allows the identification of related emails in a thread. This technology can identify the email end point and identify the unique emails in a thread

keyword search means a software-aided search for words across the text of an electronic document

media disk means a CD, DVD, USB flash drive, or any other portable media device

metadata means data about data. In the case of an electronic document, metadata is typically embedded information about the document that is not readily accessible once the native electronic document has been converted into an electronic image or paper document, for example, the date on which the document was last printed or amended. Metadata may be created automatically by a computer system (system metadata) or may be created manually by a user (application metadata). Depending on the circumstances of the case, metadata may be discoverable

native electronic document or native file format means an electronic document stored in the original form in which it was created by a computer software program

parent document means a document with 1 or more attachments. For example, an email is a parent document and any documents attached to the email are its attachments

party code means a sequence of alphanumeric characters in a document ID that uniquely identifies a party in the proceeding

PDF (portable document format) is a file format that enables documents to be displayed or printed in a manner that preserves the formatting originally used by the author. A PDF file may be either a searchable image file or an unsearchable image file

redaction means the process of rendering part of a document unreadable. It is sometimes referred to as masking. Redaction is typically used to render confidential or privileged portions of an otherwise discoverable document unreadable

searchable image means an electronic image in which text-based contents can be searched electronically.