This is a collection of some eDiscovery-related things which have come up recently and which deserve to be captured. By chance rather than design, my side of the Atlantic features heavily.
Update your website contact details
Although I have no timetable for publishing these collections, I had intended to put this out this last week. The reason why I did not may have a message for others.
I changed the password for access to WordPress – I had not done so for a long time and an odd picture on my personal blog made me think it prudent to change the password. For whatever reason, Safari failed to record the new password, so I had locked myself out. No problem, you’d think – just apply to change it via the WordPress login. The usual email did not appear with the update link. I worked out eventually that the email address recorded with WordPress no longer existed – its only purpose was fielding these update messages and it seems that Virgin had closed it down because it seemed to be unused.
I then had to prove to WordPress that it was really me who wanted to access the site – it was not difficult (they were helpful) but it did take a while.
Two messages then – change your passwords more frequently than I did, and review your contact information stored on such sites to be sure of receiving the password update messages.
Overhaul of discovery procedures in Ireland
Karyn Harty of McCann FitzGerald has written an article about the current proposals for the overhaul of discovery procedures in Ireland. The review recommends a complete overhaul of the existing discovery regime, including moving away from train of enquiry relevance based on the pleadings to a new standard of ‘relevant and material to the outcome of the proceedings’, with documents to be produced earlier and in a more streamlined manner.
Discovery is a burden everywhere and many jurisdictions have sought to tame it, including England and Wales whose Discovery Pilot faces two reviews in succession early in 2021. The Irish proposals include an early “Production of Documents” obligation. Proportionality and a focus on documents which are relevant and material are part of a hoped-for culture change which keeps parties honest, uncovers the truth and encourages settlement. Court involvement would be encouraged and there would be “potential for costs penalties for parties who do not engage constructively in this process.”
Irish legal sector can benefit from Brexit
Still on Ireland, and going wider than discovery, here is an article headed Irish legal sector can benefit from Brexit from the Business Post of 4 January. Written by Karyn Harty and Catherine Derrig of McCann FitzGerald, its opening sentence reads “Ireland is well placed to capitalise on the uncertainty caused by Brexit to become a destination of choice for complex international litigation.”
Back in 2016, I suggested that Ireland’s lawyers would benefit specifically in the context of data transfers – why bring data to the UK when Ireland would comply with the GDPR? Profiteering shyster Jacob Rees-Mogg, a UK minister who did much to drive us to Brexit, was one of the first to set up an operation in Dublin to take advantage of Ireland’s post-Brexit advantages.
Other benefits include an Anglophone common law system recognisable to US and other litigants, and a government-led Ireland for Law initiative, part of a Brexit strategy which, as the article puts it, “aims to position Ireland as a jurisdiction of choice for agreements and business disputes.”
The UK has no equivalent, and no discernible strategy.
Revenue And Customs v IGE USA Investments Ltd & Ors
Revenue And Customs v IGE USA Investments Ltd & Ors  EWHC 1716 (Ch) (31 December 2020) is a case from the Chancery Division of England and Wales. Its central points is expressed as:
Does the court have the power to order specific disclosure when there is no agreed or approved List of Issues for Disclosure?
The court below had held that, without a List of Issues for Disclosure, it had no jurisdiction to order disclosure of specific documents. That led to a discussion summarised as “Are ‘Issues for Disclosure’ and ‘List of Issues for Disclosure’ distinct concepts?”, with a reference back to a quotation from McParland & Partners v Whitehead that issues for disclosure do “not extend to every issue which is disputed in the statements of case by denial or non-admission”.
There is also a reminder in the judgment that the Disclosure Pilot has not swept away the former disclosure rules save where replacement is expressly provided for and in the courts to which the pilot applies.
Equipe v Higgins Construction: Disclosure, what’s it really good for?
Helena White from Hardwicke gives us a helpful article called Equipe v Higgins Construction: Disclosure, what’s it really good for? about a case in which she is involved.
Procedural issues arose around extension of time for service of the Particulars of Claim. How much disclosure should be given during the period of delay? The main conclusions are:
- keep the categories for disclosure to a minimum or as necessary
- make sure you seek the appropriate amount of disclosure in relation to the stage of proceedings, ensuring that the reason for seeking the disclosure of documents relates to the particular stage of action, not just in the context of the proceedings as a whole
- provide a clear structure of the claim, no matter how general, as soon as possible.
Top three decisions from 2020
Johnny Shearman has been promoted within Signature Litigation to be Head of Knowledge and Legal Services. He has helpfully provided a brief commentary on what he sees as the top 3 decisions from 2020 which dealt with the Disclosure Pilot Scheme: they are AAH Pharmaceuticals Ltd v Jhoots Healthcare Ltd, Castle Water Ltd v Thames Water Utilities and McParland & Partners Ltd v Whitehead and you can find his post about them here.
In case you missed them from this blog: