Rules of the Superior Courts (Discovery) 2009

JurisdictionIreland
CitationIR SI 93/2009

S.I. No. 93 of 2009

RULES OF THE SUPERIOR COURTS (DISCOVERY) 2009

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 27th March, 2009.

We, the Superior Courts Rules Committee, constituted pursuant to the provisions of the Courts of Justice Act 1936 , section 67, by virtue of the powers conferred upon us by the Courts of Justice Act 1924 , section 36, and the Courts of Justice Act 1936 , section 68 (as applied by the Courts (Supplemental Provisions) Act 1961 , section 48), and the Courts (Supplemental Provisions) Act 1961 , section 14, and of all other powers enabling us in this behalf, do hereby make the following Rules of Court.

Dated this 30th day of October, 2008.

Richard Johnson

Joseph Finnegan

Elizabeth Dunne

Paul McGarry

Mary Cummins

Patrick Groarke

Patrick OConnor

Noel Rubotham

Maeve Kane

I concur in the making of the following Rules of Court.

Dated this 22 day of March, 2009.

DERMOT AHERN

Minister for Justice, Equality and Law Reform

S.I. No. 93 of 2009

RULES OF THE SUPERIOR COURTS (DISCOVERY) 2009

1. The Rules of the Superior Courts are hereby amended:

(i) by the substitution for rule 12 of Order 31 of the following:

“12. (1) Any party may apply to the Court by way of notice of motion for an order directing any other party to any cause or matter to make discovery on oath of the documents which are or have been in his possession, power or procurement relating to any matter in question therein. Every such notice of motion shall specify the precise categories of documents in respect of which discovery is sought and shall be grounded upon the affidavit of the party seeking such an order of discovery which shall:

(a) verify that the discovery of documents sought is necessary for disposing fairly of the cause or matter or for saving costs;

(b) furnish the reasons why each category of documents is required to be discovered, and

(c) where the discovery sought includes electronically stored information, specify whether such party seeks the production of any documents in searchable form and if so, whether for that purpose the party seeking discovery seeks the provision of inspection and searching facilities using any information and communications technology system owned or operated by the party requested.

(2) On the hearing of such application the Court may:

(a) either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at that stage of the cause or matter, or by virtue of non-compliance with the provisions of sub-rule (6), or

(b) make an order for discovery either in terms of some or all of the categories of documents sought or limited to certain documents or classes of documents within any or all of those categories, or otherwise as may be thought fit, and on terms as to security for the costs of discovery or otherwise, and for this purpose may adjourn the application in part;

(c) where the discovery ordered includes electronically stored information and the Court is satisfied that such electronically stored information is held in searchable form and can be provided in the manner hereinafter referred to without significant cost to the party from whom discovery is requested:

(i) further order that the documents or classes of documents specified in such order be provided electronically in the searchable form in which they are held by the party ordered to make discovery, or

(ii) where the Court is satisfied that such documents or classes of documents, or any information within such documents, could not, if provided electronically, be subjected to a search by the party seeking discovery without incurring unreasonable expense, further order that the party ordered to make discovery make available inspection and searching facilities using its own information and communications technology system, so as to allow the party seeking discovery to avail of any search functionality available to the party ordered to make discovery.

(3) (a) Any order made under sub-rule (2)(c) may include such provision or restriction and be subject to such undertakings from any party or person as the Court may consider necessary to ensure that documents discovery of which has not been ordered are not accessed or accessible, and otherwise to secure the information and communications technology system concerned.

(b) Such order may in particular include a provision that the inspection and searching of documents shall be undertaken by an independent expert or person agreed between the parties, or appointed by the Court in default of agreement (instead of being undertaken by the party seeking discovery), who may conduct such inspections and searches as may be required and report the results to the party seeking discovery.

(c) Where such order makes provision for inspection and searching of documents in the manner referred to in paragraph (b), the party seeking the order shall indemnify such independent expert or person in respect of all fees and expenses reasonably incurred by him, and the fees and expenses so indemnified shall form part of the costs of that party for the purposes of Order 99.

(4) (a) Documents of the same or a similar nature and not in electronic form, when numerous, shall so far as...

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