1. Introduction
Unlike the United States, which is leading the way in relation to e-discovery and where the disclosure of electronic data has become standard procedure, as of yet there is no standard protocol or practice direction issued in relation to e-discovery in Ireland. Despite this fact, Irish lawyers are beginning to appreciate the invaluable nature of electronic data which can be retrieved and used in commercial litigation.
2. Discovery in Ireland
The legal basis for electronic discovery in Ireland is contained in the Rules of the Superior Court relating to discovery and also in the Electronic Commerce Act, 2000 ("the 2000 Act") which defines "information" as including "data, all forms of writing and other text, images ... sound, codes, computer programs, software, databases and speech." Section 9 of the 2000 Act also provides that information "shall not be denied legal effect, validity or enforceability solely on the grounds that it is wholly or partly in electric form, whether as an electronic communication or otherwise".
Discovery in Ireland tends to be limited to merely paper discovery and so a final draft of an email or other computer document is printed off and discovered. This method of discovery can fail to show a considerable amount of electronic data which is not immediately apparent or recognizable, such as the hidden profile of a computer document showing, for example, the author or the editing history. This is mainly due to a lack of awareness of the kind of information that exists on computers as many Irish lawyers do not appreciate the extent of the surplus and hidden information collected by computers and the period for which such information is retained.
3. Judicial Developments
With increased awareness, it is becoming more common for discovery requests in commercial litigation to include the disclosure of computer based records such as emails, word processed documents, databases and "deleted documents". The High Court1 recently ordered a plaintiff to deliver up to an independent expert nominated by the defendant, two lap-top personal computers for the purpose of reconstituting documents contained on the hard drives.
4. Discovery Requests
The discovery process in Ireland is more restrictive than in it is in the United States. This follows the implementation of Statutory Instrument 233 of 1999: Rules of the Superior Courts (No.2) (Discovery), 1999. This was motivated by the desire to discourage general discovery requests which result in time wastage and unnecessary costs for the parties engaged in litigation. The Irish Courts are extremely critical of general requests for discovery and are opposed to broad, generic requests or "fishing expeditions."
Accordingly, all discovery requests must be framed precisely stating the category of documents being sought and the reason why it is considered that such documents are material to the issues to be considered. Each category of document contained in a discovery request is judged on relevance to the matters in question in the action and on necessity. In addition, documentation will not be discovered if it is available to the requesting party though other sources. As with soft copy documentation, requests for the disclosure of electronic documentation should be specific and should disclose the rationale for the belief that the documentation requested is needed.
The Rules of the Superior Courts2 obliges a party seeking discovery to convince the judge hearing the case that discovery is necessary, either for disposing fairly of the case or for saving costs. As a result, the Courts may take into account the costs involved in complying with a discovery request prior to making its decision on whether or not to grant the request. As the cost of making e-discovery may be quite substantial, involving for example, the retaining of IT specialists this is an issue to be borne in mind when seeking discovery.
Footnotes
1 McGrath v Trintech Technologies Limited and Trintech Group plc [2004] IEHC 342
2 Order 31, Rule 12
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