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 requests which...

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