Discovery is the process through which parties to litigation can gain access to documents that the other side has within their possession or has the power to obtain. This enables parties to gain an insight into the type of evidence that the opposing side might use against them in court and, in certain cases, might even help to expose gaps in a party's evidence.

In terms of the procedure, parties must first try to agree the categories of documents to be discovered. This is done by way of a voluntary request for discovery which is sent by one party to another. If the parties cannot agree the categories, the party seeking discovery can apply to court for an order directing that this process takes place.

Once the categories have been agreed between the parties (or ordered by court), the disclosing party swears an affidavit which lists the documents that are or have been in its possession or power of procurement which are relevant to the agreed categories. The party seeking discovery may, following a review of the affidavit of discovery, request to inspect some or all of the documents disclosed.

The rules of the courts do not require discovery of information other than that recorded in 'documents'. Unfortunately, the rules do not provide a definition of the word 'document' and it was unclear until quite recently as to whether the courts would interpret the word 'document' to include data which is stored in electronic form.

The Supreme Court in Dome Telecom v Eircom ([2007] IESC 59) held that "it is common knowledge that a vast amount of information in the business world which formerly would have been in documentary form in the traditional sense is now computerised. As a matter of fairness and common sense, the courts must adapt themselves to this situation and fashion appropriate analogous orders of discovery … Otherwise, potential litigants could operate their business computers in such a way that they would be able to evade any worthwhile discovery."

It is clear, following the Supreme Court decision in Dome Telecom, that the word 'document' will be interpreted by the courts to include electronically stored information or 'ESI' as it is commonly referred to in the United States and Britain. The decision clarifies the obligation upon parties to make discovery of numerous different types of ESI.

ESI can be stored in many different forms. Indeed, courts in other jurisdictions have shown how parties have been in possession of different types of ESI without even knowing it. The use of IT experts to retrieve data (even deleted data) is becoming more common.

A 2004 report in the UK identified different categories of data that can be found on an average desktop computer. It seems that the following three types of data are likely to be particularly relevant in litigation:

• Active data.
  This is the data that we can open on our desktop computers or laptops. Examples include documents or correspondence which you would store in your email inbox or items that you might save in a documents folder in Microsoft Word.
  
  
• Residual data.
  This is data that is deleted from your active data. Common opinion is that once a file is 'permanently deleted' from a desktop computer it can no longer be retrieved. Despite the fact that deleting a file can sometimes cause the data to become lost or fragmented, this data can often be retrieved using specialist software and expertise.
  
  
• Embedded data.
  This provides background information about the active data, such as when a file was created or amended, by whom the file was amended and who accessed the files over their lifespan.

It is important to bear in mind that when anything is committed to record, whether that record is in paper or electronic format, whether it is the first draft or the finalised document, that record could end up the subject matter of a discovery order and could ultimately come before the court. At present, there are no formal rules in place in respect of discovery of ESI and it appears that for the time being discovery of ESI will be dealt with on a case by case basis by the courts. However, it is likely that discovery orders for ESI will be sought on an increasing basis and you should bear this in mind before recording any information in electronic form or otherwise. Furthermore, it is important to put in place effective data retention and protection policies in your business and to seek advice at an early stage when a matter appears likely to result in litigation.

For further information please contact Michael Kavanagh.