New rules for electronic discovery in Ireland

Statutory Instrument No. 93 of 2009 has made some significant changes to electronic discovery in Ireland. McCann Fitzgerald have summarised the effects:

* a party may seek electronic data in searchable form from its opponent;
* the court may order a party to give inspection and search facilities for electronic data on its computer systems to the other side;
* where computers contain sensitive non-discoverable data, the court instead may order that an independent expert carry out the inspection and search for relevant electronic data (the party seeking that discovery will have to fund the expert’s costs and expenses);
* where a party giving discovery finds that searching for the documents or data is excessively costly or burdensome, it may apply to the court to seek to narrow the scope of the discovery order;
* a party giving discovery must list the documents or data according to agreed categories or in a sequence corresponding with the manner in which the documents or data has been stored or kept in the usual course of business – the intention is to make discovery more comprehensible;
* all parties giving discovery must swear in an affidavit of discovery that they understand their obligation to give discovery of documents and electronic data (within the categories of discovery agreed or ordered by the court) which may help or damage their case in any way.

Interestingly, although the new rules provide for parties to be obliged to allow the other side "inspection and searching facilities", they appear to apply only to existing documents. They don't seem to refer to the question of whether the court can order a party to carry out analysis of ("data mine") electronic records - thus leaving unaltered the effect of the ruling in Dome Telecom v. Eircom.