Bermuda: Electronic Discovery In Bermuda: A Summary

Last Updated: 24 August 2018
Article by Alex Potts

The Rules of the Supreme Court of Bermuda 1985 do not yet contain any detailed rules, practice direction, or guidance specifically dealing with electronic discovery.

However, it is submitted that the Supreme Court of Bermuda clearly has the jurisdiction to give directions to the parties as to the manner in which they conduct discovery, including electronic discovery in any appropriate case.

The source of this jurisdiction is located in, or supported by:

  • Section 12(1) and 12(2) of the Supreme Court Act 19051
  • Section 75 of the Evidence Act 1905
  • Section 14 of the Electronic Transactions Act 1999
  • The Rules of the Supreme Court of Bermuda 1985, including, in particular:

    • RSC Order 1A, Rule 1
    • RSC Order 1A, Rule 3
    • RSC Order 1A, Rule 42
    • RSC Order 3, Rule 5(1) (which gives the court power to abridge time)
    • RSC Order 24, Rule 1(5)(a)
    • RSC Order 24, Rule 3(1)
    • RSC Order 24, Rule 7
    • RSC Order 24, Rule 8
    • RSC Order 24, Rule 14
    • RSC Order 29, Rule 2
    • Paragraph 3 of the Commercial Court Practice Direction, Circular No. 8 of 2006, supplementing RSC Order 72.

The existence of such a jurisdiction is also supported by:

  • The Bermuda case law, the pre-CPR English case law, and the commonwealth case law that has recognised that, for the purposes of discovery under RSC Order 24 and under RSC Order 29 (or analogous procedural rules in other jurisdictions), discoverable documents include electronic documents and electronic infomation storage media: see, for example, Grant v Southwestern and County Properties Ltd [1978], Derby & Co Ltd v Weldon (No. 9) [1991], Sony Music Entertainment (Australia) Limited v University of Tasmania [2003], and Re Lehman Re Ltd [2011].
  • The Bermuda case law that has recognised the importance and effect of the overriding objective and the Court's duty of active case management under RSC Order 1A: see, for example, Ribaroff v Williams [2014], per Kawaley CJ at Paragraphs 13 and 14:

    The essence of modern judicial case management, applying the principles embodied in Order 1A of the Rules to the application and interpretation of the other Rules, is pragmatism and bringing tailor-made decision-making to bear which takes into account the particular factual and legal circumstances of each case ... it is well settled that the dominant aim of case management is to make civil proceedings more efficient by avoiding the wastage of costs. Wasted costs in the past often flowed from the fact that the parties themselves were largely allowed to dictate the course of litigation, with the Court not required to make any decisions of substance until trial.
  • The post-CPR English case law that has recognised the English Court's power to tailor directions relating to electronic discovery according to the circumstances of the case. See, for example: Digicel St Lucia Limited v Cable & Wireless Plc [2008]; Goodale & Ors v The Ministry of Justice & Ors [2009]; Vector Investments v Williams [2009]; Fiddes v Channel 4 TV Corporation [2010]; West African Gas Pipeline Company Ltd v Willbros Global Holdings Inc [2012]; Mueller Europe Ltd v Central Roofing (South Wales) Ltd [2012]; Montpelier Estates Ltd v Leeds City Council [2012]; and Re Atrium Traning Services Ltd, Smailes & Anor v McNally & Ors [2013].

It is submitted that the Supreme Court of Bermuda also has an inherent jurisdiction to give directions to the parties as to the manner in which they conduct electronic discovery, as part of its inherent jurisdiction to regulate the conduct of civil litigation before the court (save to the extent that to do so would be in direct contravention of primary legislation or secondary legislation, such as the Rules of the Supreme Court of Bermuda 1985)3. It is further submitted that the Court's regulation of the parties' approach to electronic discovery would not contravene any primary legislation or secondary legislation applicable in Bermuda.

If any further support is needed for the proposition that the court's power to regulate discovery is within the scope of its inherent jurisdiction, the UK Supreme Court has confirmed that "the remedy of discovery (now known as disclosure) was adopted by the courts of equity in order to aid the administration of justice", and that it was only subsequently codified in rules of court: "... the scope of disclosure has long been seen as a matter on which the court has jurisdiction to decide"4. This supports the proposition that the jurisdiction to order discovery is part of the court's inherent jurisdiction, and that it is not limited by any codification in the rules of court.

Furthermore, both the Court of Appeal for Bermuda and the Supreme Court of Bermuda have recognised that there are circumstances in which the court is entitled to regulate its procedure as a matter of its inherent jurisdiction, notwithstanding a lacuna in the rules. See, for example, Phoenix Global and Phoenix Capital v Citigroup and Bank of Bermuda [2007], per Kawaley J at Paragraph 90:

A gap in the Rules as a matter of broader principle should not be regarded as an impediment to giving effect to applicable constitutional, statutory or international obligations. In New Skies Satellite BV v FG Hemisphere Associates LLC [2005], Evans JA gave the Judgment of the Court of Appeal for Bermuda in a case where a statute conferred a positive right to enforce foreign arbitration rules but there was a "lacuna" in the Rules. On one construction, the fact that the Rules were silent as to the applicable procedure interfered with the positive statutory right. The Court of Appeal's primary finding was that the "lacuna" was no impediment to enforcement proceedings being commenced. Evans JA observed (at Pages 8–9): "If it be a case of ambiguity, we should prefer the construction which enables Bermuda to perform the international treaty obligations undertaken on its behalf.

Experience from other jurisdictions such as England and Wales5 (and, to some extent, Bermuda6) suggests that it is beneficial for the parties and the Court to address the issue of electronic discovery at an early stage, before the parties have each embarked substantially on the discovery process unilaterally, with a view to resolving any contentious issues before (a) they interfere with the procedural timetable at a later stage or (b) result in costs being wasted unnecessarily.

It is recognised, of course, that while the English Civil Procedure Rules contain an electronic disclosure Practice Direction, PD 31B, that deals with the English court's approach to Disclosure of Electronic Documents, and the obligations of the parties, the extent to which CPR PD 31B should be followed or applied by the Supreme Court of Bermuda in any particular case is subject to the exercise of the court's discretion taking into account the circumstances of the particular case before the court, and bearing in mind the differences between (a) general 'discovery' in Bermuda under RSC Order 24 (which, for example, includes Peruvian Guano 'train of inquiry' documents), and (b) 'standard disclosure' in England under CPR Part 31 (which does not)7. However, it is submitted that the English CPR PD 31B does, at the very least, provide some useful guidance, in the absence of a specific local rule or Practice Direction.

In an ideal world, with a view to promoting greater certainty and reducing the scope for satellite disputes regarding the parties' compliance with their discovery obligations (with associated costs consequences), Bermuda would introduce specific rules relating to electronic discovery, whether by way of further amendments to the Rules of the Supreme Court or by way of Practice Direction.

Footnotes

1. These statutory provisions were discussed at length by Kawaley J in Phoenix Global and Phoenix Capital v Citigroup and Bank of Bermuda [2007], at Paragraphs 54 ff, in the context of a security for costs application.

2. RSC Order 1A provides that the court has a duty to further the overriding objective by managing cases actively, including by "making use of technology" (RSC Order 1A, Rule 4(2)(k)), "encouraging the parties to co-operate with each other in the conduct of the proceedings" (RSC Order 1A, Rule 4(2)(a)), "fixing timetables or otherwise controlling the progress of the case" (RSC Order 1A, Rule 4(2)(g)), "considering whether the likely benefits of taking a particular step justify the cost of taking it" (RSC Order 1A, Rule 4(2)h)), and "giving directions to ensure that the trial of a case proceeds quickly and efficiently" (RSC Order 1A, Rule 4(2)(l)).

3. See Moore v Assignment Courier Ltd [1977], Langley v North West Water Authority [1991] , Raja v Van Hoogstraten [2009], and Al Rawi v Security Service [2012], per Lord Dyson at Paragraphs 18 and 20.

4. Al Rawi v Security Service [2012], per Lord Dyson at Paragraph 20.

5. See, for example, Goodale & Ors v The Ministry of Justice & Ors [2009], Vector Investments v Williams [2009], West African Gas Pipeline Company Ltd v Willbros Global Holdings Inc [2012], and Re Atrium Traning Services Ltd, Smailes & Anor v McNally & Ors [2013].

6. There is no reported Bermuda case addressing issues of electronic discovery in any detail. However, in Re Lehman Re Ltd [2011], Kawaley J confirmed that, as a matter of Bermuda law, "the term "documents" in the modern era clearly includes electronic data as well": see also the notes to the 1999 Supreme Court Practice at 24/2/3, and the authorities there cited. Addressing electronic documents in a different context, Ward CJ varied an ex parte Anton Piller order in Crane v Booker [1999] granting the plaintiff the right to seize various emails, electronic documents and computer discs held by the Defendants. The author also has practical experience of certain first-instance judges of Bermuda's Commercial Court accepting the submissions summarized above, albeit in unreported and untranscribed oral ex tempore Rulings.

7. See, in this context: Nichia v Argos [2007], in which the English Court of Appeal referred to standard disclosure and the reasonable search and emphasised the difference between this approach to disclosure under the CPR and the former approach to discovery under the RSC.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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