E-Discovery

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...