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This man has been referred to as the ‘El Chapo’ of illegal file sharing.  He has been fighting extradition from New Zealand by the United States Government for the past ten years.  He’s the former CEO of ‘MegaUpload’, founder of the ‘Internet Party’ and the creator of one of the cheesiest electronic dance albums this side of an Ibiza 1999 mixtape. He’s Dotcom. Kim Dotcom.  

<record scratch> What does any of this have to do with ediscovery?

Let me explain. 

New Zealand is an eDiscovery Innovator

Let’s call it the “Kiwi eDiscovery Revolution.” It was one of the first jurisdictions to explicitly introduce ediscovery into its civil procedure rules. In 2011, it amended its rules for civil procedure, the ‘High Court Rules’. Schedule 9, clause (3)(2) require that both parties in a Discovery proceeding: 

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)…

Note that these rules allow parties to seek agreement on ediscovery technologies, but they do not require that those technologies be used. 

In one of the earliest of the many extradition hearings with respect to Kim Dotcom, Dotcom v United States of America [2012] DCR 661, Judge Harvey made Obiter (that is, non-binding) comments about the merits of predictive coding, including stating that “there are procedures available…in the civil arena that will enable the prompt disclosure of relevant information.”

There have been no explicit court precedents stating more than this – that predictive coding must be used in some cases. However, anecdotally, its use seems to be quite common among Kiwi legal practitioners. The fact that the issue has not been explicitly considered before the courts is likely a reflection of the small quantity of civil litigation that occurs in New Zealand anyway. 

How are other countries any different?

Few other countries have tended to recognize predictive coding in their civil procedure rules. More commonly, their rules remain silent on how Discovery is to proceed, with lawyers to consider for themselves how predictive coding is to be implemented.

Where there is reference to predictive coding, it occurs in ‘Practice Notes’ issued by the judiciary, rather than the civil procedure rules. See, for example, the United Kingdom (Disclosure Review Document, question 14) and Victoria (Australia) (SC Practice Note: Technology In Civil Litigation, clause 8.7). 

In the United States, it has been Judges in individual cases such as Moore v. Publicis Groupe SA. 11 Civ. 1279 (ALC) (AJP), not the civil procedure rules, that have confirmed the application of predictive coding. 

By elevating predictive coding to the civil procedure rules themselves, New Zealand has sent a message to lawyers that ediscovery solutions are not only tolerated  – they are an expected element of civil procedure. 

As far as I know, no New Zealand court has yet to determine whether Kim Dotcom’s single ‘Good Times’, offends the laws of common decency. 

About the Author:

Drew Donnelly

Drew Donnelly

Drew Donnelly is a Germany-based legal and tech writer. He was admitted to the Bar in New Zealand, worked as a paralegal in Australia, and comments on eDiscovery from a Europe and Asia-Pacific perspective. Catch him on LinkedIn at https://www.linkedin.com/in/dr-drew-donnelly-b5ba35135/.

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