Much has been already written in previous editions of this journal about the problems of e-discovery in large-scale commercial litigation in Hong Kong. These problems are shared in many other jurisdictions that have civil procedure rules providing for the exchange of relevant documents in a party’s possession before trial.
The main problems relate to parties and their lawyers getting to grips with large-scale e-discovery exercises in a way that is proportionate to the litigation and that assists the court with its case management responsibilities.
These issues were discussed in London recently at a “General Counsel 100 Disclosure Seminar”, held at the Commercial Court Rolls Building.
Given the similarities between the process of “standard disclosure” in the London Commercial Court and “discovery” in the High Court of Hong Kong, a number of points are worth noting (including, for example):
- in large-scale document-heavy litigation, parties should consider whether a “menu” of options would be appropriate, thereby (for example) limiting e-discovery to certain key issues or managing e-discovery in stages*;
- an interesting idea is for case management directions in appropriate cases to provide that witness statements precede e-discovery. Each witness statement would attach the documents referred to by the witness (as is generally the practice in Hong Kong). Thereafter, issues of relevance would be defined primarily by reference to the witness statements (and not so much the legalistic terminology often seen in parties’ pleadings)*;
- there is an increasing need in commercial litigation for the parties’ representatives to prepare for e-discovery well before the first Case Management Conference, as there is for case managing judges to be conversant with the issues in dispute and more up to speed with e-discovery technology;
- there are suggestions that the onerous and costly obligations that come with e-discovery may be turning some parties away from commercial litigation in London.
With the Pilot Scheme for E-Discovery in place (pursuant to Practice Direction SL1.2), there are lessons to be learnt for parties and practitioners in the Commercial List in Hong Kong.
The issues raised can, no doubt, be discussed on the sidelines during the “2016 Annual Conference of In-house Lawyers” in Hong Kong, on 21 September 2016.
* See (for example) High Court Practice Direction SL1.2, paras. 5 and 20; and RHC O. 24, rr. 2 and 15A and O. 38 r. 2A(2)–(3).