By happy chance, the discovery rules in Ireland have the same number as those in the Civil Procedure Rules of England & Wales. Order 31 of the Rules of the Superior Courts give the court the power to order discovery of documents between parties. You will spot even from that much that there is a difference from the CPR, under which standard disclosure (as we, stupidly, and alone in the world, call it) is the default in the absence of an agreement or order dispensing with it. In Ireland, a case must be made for it – not difficult in principle in most cases, I imagine, but an interesting and subtle difference of approach.

S.I Number 93 of 2009 – Rules of the Superior Courts (Discovery) 2009 expressly extends the scope of discovery to electronic documents and provides some broad rules. By “broad”, I mean that the rules create a general requirement that any request be considered with regard to the costs. My quick skim detects a slightly different emphasis on this front relative to our rules and those of other jurisdictions. Whilst the reality, I imagine, is that the courts will consider what method is most cost-effective, the express rules are cast in a way which implies that electronic means of giving discovery will only be ordered if no additional expense is caused thereby. Take this for example from 2(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: (1)……

Many practitioners in the UK fear that gung-ho judges assume the default position to be that documents must be disclosed electronically. They do not – judges may assume that many or most of the documents will be electronic, but the question as to the means and form of disclosure is not pre-judged. Judges want to know what the costs and other implications are of one approach versus another, and may well conclude that the “print-and-type” approach to listing documents is the right one for any particular case. The duty of both practitioners and courts is to discuss and weigh the options. The same is in fact true in Australia despite an emphasis which is different again, and which expressly urges electronic production. All these courts have an equivalent to our “overriding objective” whose purpose is implied by its name.

The chief interest in the Irish experience lies in some useful quotations from judgments about the exercise of judicial discretion to do what is right to achieve a just result. I will come back to these when time allows, but meanwhile refer to you an article called New rules for electronic discovery in Ireland on T J McIntyre’s useful site IT Law in Ireland, and to the links from it. His most recent post is about surveillance powers, one of many subjects on my list of topics which have cross-overs into electronic discovery. I have come across this site before, and commend it as a well-written and perceptive source of comment and information on electronic discovery amongst other IT-related topics.

My thanks to Lloyd Wilks of Guidance Software for tipping me off about the effective date of the new Irish e-discovery rules. I am always grateful for pointers to things which I might otherwise miss, whether from home or abroad. I cannot cover them all, but I certainly cannot cover those I do not know about

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