E-Discovery

Author:Mr John O'Riordan
Profession:Dillon Eustace
 
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  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...

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