Discovery describes the procedure whereby parties to litigation obtain disclosure of relevant documents from other parties prior to the trial. The process of discovery has long been viewed by the courts as a vital aspect of civil litigation procedure and an essential component of the administration of justice.

The courts take a dim view of a failure by parties to make discovery in full compliance with a court order or the agreement by a party to make voluntary discovery. While such failure can be fatal to a litigant's case, it can also constitute contempt of court and lead to imprisonment.

The proliferation of the many varied and easier modes of communication has led not just to the creation of more records but also to increasing complexity and work for parties to litigation in the discharge of their obligations to review and make discovery of such records.

'E-discovery' is a recent phenomenon which has surfaced in light of the significant technological developments that have taken place in recent years, including the arrival of email, the internet and sophisticated mobile devices. Accordingly, the relevance of electronically stored information (ESI) in the context of the discovery process raises a new set of issues in litigation as ESI, in its various forms, is now discoverable.

ESI includes material held on email, data generated by a desktop computer and data held on a storage system. ESI may also be stored in text messages, voicemails, Blackberry / Palm Pilots, or in third party online systems such as G-Mail, Hotmail and YouTube.

The search for relevant documents in the context of the discovery process has undoubtedly been made more difficult by the emergence of ESI, given the greater number of potential locations where ESI documents or information may be stored, the greater number of such documents, and the difficulty of retrieving them. Documents relevant to agreed categories may be stored in different locations either within or outside an organisation or in the possession of employees, on their mobile phones or blackberries and so on.

In larger and more complex cases, the volume of potentially relevant ESI could be enormous, with the existence of multiple branches of the same organisation located in many different countries all linked by computer systems.

E-discovery raises new challenges for parties to litigation in terms of conducting searches of their own electronic records and systems, and in seeking disclosure and inspection of electronic documents from opposing parties - all of which is likely to be extremely time consuming and costly.

It is imperative that organisations bear in mind that they have extensive obligations when creating documents and that many types of ESI may, in fact, be discoverable at some stage in the future. According to experts in the field, so-called 'deleted' data is almost always recoverable and accordingly it is important to be aware that both existing (and deleted) documents may, at some stage in the future, become the subject of an order for discovery.

A party who fails to appreciate that certain categories of ESI are discoverable may omit to include documents that might strengthen its case. In addition, a failure to make discovery of all relevant ESI will be considered to be a breach of a party's obligations on discovery and could result in serious consequences for that party.

The issue of ESI continues to grow in importance in the conduct of litigation. Organisations which put in place well-defined policies and procedures dealing with all aspects of the collection, retention and archiving of documents, and who properly implement such policies and procedures, are likely to be well placed to deal with all aspects of the discovery process.

For further information please contact Michael Kavanagh.

Spring 2008.