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Editorial: The Rise and Rise of Electronic Discovery

DATE: 23.06.2011

 

The process of discovery has entirely changed in the last ten years, in an era where electronic documents are now the norm. In addition, the ease with which such documentation can be shared with others irrespective of location has also led to multi jurisdictional issues in discovery becoming increasingly common. In recognition of this, new rules on the discovery of electronically stored information (‘ESI’) (the ‘E-Discovery Rules’), were introduced in Ireland in April 2009. The E-Discovery Rules implement the Law Society’s Litigation Committee recommendations. One of our Litigation partners, Lisa Broderick, was heavily involved in the Committee and the drafting of the recommendations, designed to bring Irish practice into line with e-discovery rules in the US and the UK.

Particular practice points in the E-Discovery Rules include provisions for documents to be provided electronically in searchable format, for inspection and search facilities to be provided to the party seeking discovery, and for an independent expert to carry out such searches where there is a risk disclosing sensitive non-discoverable documents.

The most challenging aspect of electronic discovery in modern commercial litigation is the sheer volume of documentation and managing the process to ensure all relevant information that the parties have agreed to make available is actually being provided. The risks of failing to manage this process properly were recently highlighted in Hansfield Developments and Others v Irish Asphalt Limited and Others, one of the first significant cases to examine the issues which arise in relation to e-discovery. The defendants in the case sought to strike out the plaintiffs’ claim for failing to make proper discovery, when it had come to light four months into the trial that almost 48,000 documents had not been discovered that should have been included. In a lengthy judgement, the court highlighted the difficulties faced when parties fail to liaise at an early stage in order to discuss and agree key elements of the e-discovery process such as scope, search terms and collection parameters. The court was highly critical of the manner in which e-discovery issues were dealt with and referred to the “most cavalier, reckless attempt by the plaintiffs to comply with their discovery obligations….there was a failure to deal with the issues raised”.

The nature of high value Commercial Court litigation, often covering years of documentation stored in any number of jurisdictions and generated automatically on a daily basis, has therefore resulted in discovery of documents into the millions in some case. Discovery is now potentially running to hundreds of terabytes of documents. By way of illustration the entire contents of the library at Trinity College Dublin in word format is approximately 15 terabytes and with associated cost mounting, practitioners are increasingly looking at novel ways to reduce the scope of discovery. Some of the proposed solutions identified by the recent Jackson Report on civil litigation costs in the UK are likely to influence how the E-Discovery Rules evolve in this jurisdiction. In particular, the proposal for parties to meet at an early stage to agree a constructive process and scope, is being viewed by practitioners as one approach. This issue is currently before the Irish Commercial Court in the Madoff related litigation.

Sharon Daly

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