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New Rule Change on Document Discovery Will Affect Litigants’ Rights and Counsel’s Ethical Responsibility

By Kornfeld LLP (posts)

New Rule 7-1 will replace existing Rule 26(1) by mandating a two-step process for obtaining discovery of documents. This will, no doubt, have a significant impact on counsel’s role in the discovery process and on legal ethics governing that role. It maywell be that some of that impact is quite unanticipated by those who framed the new rule.

The eventual effect of the new rules and particularly of Rule 7-1 on professional responsibility is not yet known. As far as this author is aware, the substantive content of new Rule 7(1) is novel and has not previously been enacted in any other jurisdiction, although past rule changes and their interpretation in the United Kingdom may provide some guidance on the approach our courts may take in overseeing the new regime for production.

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