NEW ZEALAND Law and Practice Contributed by: Fionnghuala Cuncannon and Kate Muirhead, Cuncannon
5.4 Alternatives to Discovery Mechanisms In some abbreviated civil proceeding processes, evi- dence is adduced by affidavits or an agreed statement of facts, and discovery is only available in limited cir- cumstances. One example is judicial review applica- tions, in which the court is asked to review decisions involving the exercise of public power. Such applica- tions are regulated by the Judicial Review Procedure Act 2016, which provides (and will continue to provide after the New Rules come into force) that the court may order discovery and/or document production. 5.5 Legal Privilege New Zealand recognises legal privilege. Categories of privilege commonly arising in civil litigation include the following. • Solicitor-client privilege: for confidential communi- cations made in the course of and for the purpose of seeking or receiving legal advice. This privilege applies to external and in-house counsel, although communications with in-house counsel will not be privileged to the extent that they do not involve legal advice. • Litigation privilege: for documents prepared for the dominant purpose of preparing for a proceeding that has begun or is reasonably apprehended. • Settlement negotiation privilege: for confiden- tial communications made in connection with an attempt to settle or mediate a dispute. The party(ies) holding the privilege may waive privilege by voluntarily disclosing or consenting to the disclo- sure of the information, or by putting the information in issue in the proceeding. Under the current regime, the starting point is that par- ties are required to list privileged documents in their affidavit of discovery documents but are not required to provide them for inspection. Under the New Rules, privileged documents or document extracts must be described in an initial disclosure affidavit, but any privileged documents do not need to be listed in that affidavit.
discovery described above – may be ordered. A party must disclose all documents, including commercially confidential documents, in a list attached to an affida- vit. Discovery does not include the taking of witness testimony. The New Rules will abolish discovery from most civil proceedings in the New Zealand High Court, replacing it with new disclosure rules. The shift is intended to promote access to justice by reducing the complex- ity, time and cost often associated with discovery and with High Court civil litigation more generally. The dis- closure regime will: • require a bundle of documents, including adverse documents, to be provided for initial disclosure when a party serves their first pleading (see 3.4 Initial Complaint ); • allow further disclosure as agreed by the parties or by court order; • allow judges to limit the extent of further disclo- sure; and • require parties to file factual witness statements before any opposed further disclosure requests are resolved, except in limited circumstances. 5.2 Discovery and Third Parties At the time of writing, parties may apply to the court to obtain discovery from a non-party. There must be grounds for belief that a non-party has or had docu- ments that would be discoverable if the person was a party. The documents must be relevant to issues in dispute in the proceeding, and the tests for stand- ard or tailored discovery (see 5.1 Discovery and Civil Cases ), and for proportionality, must be satisfied. From 1 January 2026, the New Zealand High Court Rules will not contain an express power to order non- party disclosure. However, the amended rules require a judge to consider at a judicial issues conference whether any further disclosure is needed. In theory, this could include disclosure from non-parties. 5.3 Discovery in This Jurisdiction Please see 5.1 Discovery and Civil Cases regarding the general approach to discovery and disclosure in New Zealand.
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