NEW ZEALAND Law and Practice Contributed by: Ellie Harrison and Jasper Fawcett, Wynn Williams Lawyers
6.2 Legal Professional Privilege Communications between a party and their legal adviser that were intended to be confidential and made in the course of and for the purpose of seeking and obtaining professional legal services are privileged. Communications or information made, received, com - piled, or prepared for the dominant purpose of prepar - ing for proceedings or apprehended proceedings are also privileged. Parties are not required to disclose privileged docu - ments in either initial disclosure or discovery more gen - erally and, where documents contain both privileged and non-privileged information, a party may redact the privileged information. Documents for which privilege is claimed need to be listed in the schedule attached to the affidavit of documents, but may be grouped (for example, by referring to all documents of a certain type and within a date range for which solicitor-client privilege is claimed). 6.3 Leniency and Settlement Agreements The New Zealand Commerce Commission administers a Cartel Leniency and Immunity Policy. Leniency and/ or settlement agreements with the Commission are not necessarily protected from disclosure, although they may be subject to confidentiality restrictions. The Commission does, however, operate a “paper - less” process whereby an application for leniency or immunity can be made, and a marker or immunity/ leniency can be granted verbally. 7. Witness and Expert Opinions 7.1 Witness Procedure The ordinary methods of giving evidence in civil pro - ceedings in New Zealand are: • orally in the courtroom; • by affidavit filed in court; or • by reading a written statement in the courtroom. Affidavits or written statements may be read into evi - dence only if they are the personal statement of the witness and do not contain inadmissible evidence. Any of these methods are treated as the witness giv - ing evidence in chief.
between the parties and submitted to the Court for approval. Standard discovery requires each party to disclose documents in their control and that are relevant to the proceedings (that is, documents on which the party relies, documents that adversely affect the party’s own case or another party’s case, and documents that support another party’s case). There is, however, a presumption of tailored discovery in instances where the interests of justice require it (for example, where the costs of standard discovery would be dispropor - tionately high in light of the matters at issue in the proceedings, or where the value of the claim exceeds NZD2.5 million). Under tailored discovery, the parties agree categories of documents likely to be relevant to the matters in issue in the claim, the discovery of which would be proportionate. Parties are also required to discover any documents they become aware of that are rel - evant to the case, but do not fall within a tailored dis - covery category (but they are not required to search beyond the categories). Given the complexity that will ordinarily be involved in private antitrust litigation, tai - lored discovery is likely to apply. Solicitors acting for parties in a proceeding are subject to an obligation to take reasonable care to ensure that the party they act for understands the party’s obliga - tions under the discovery order and fulfils those obli - gations. The parties must undertake a reasonable search for documents within the scope of the discovery order (in accordance with the terms of the discovery order), and each party to whom the order applies must file and serve an affidavit of documents outlining the steps taken to fulfil the discovery obligations and including a schedule of documents identified. All documents that are not subject to privilege or confidentiality must be disclosed to the other parties. Parties remain under a continuing obligation throughout the proceedings to give discovery and offer inspection of relevant docu - ments, even if that party has filed and served an affi - davit of documents.
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