Contributed By Arthur Cox
Ireland has a common law legal system. The Irish Constitution prescribes the structure of the judicial system, which comprises:
The Supreme Court is the court of final appeal, with appellate jurisdiction over decisions of the Court of Appeal and over decisions of the High Court in exceptional circumstances (eg, in matters of general public importance).
The Court of Appeal has appellate jurisdiction over almost all decisions of the High Court, except those matters of general public importance.
The High Court has full jurisdiction in all criminal and civil matters.
The Circuit and District Courts are courts of limited jurisdiction (a monetary limit of EUR15,000 applies in the District Court and of EUR60,000 for personal injury cases, and EUR75,000 for all other cases in the Circuit Court) and are organised on a regional basis. All lower courts are bound to follow the decisions of superior courts.
The Rules of the Superior Courts (RSC), which govern the discovery process, were amended in 2009 to take account of the growing importance of electronic discovery and provide that a party may seek electronically stored information (ESI) in searchable form from its opponent.
Order 31 Rule 13 of the RSC requires parties to swear an affidavit as to “documents.” Order 31 Rule 12(13), which was inserted by RSC (Discovery) 2009 (SI No 93 of 2009), provides that “documents” includes all ESI. However, this amendment to the RSC was intended to improve the efficiency of discovery of ESI and provides no guidance on the extent to which parties are required to discover ESI.
In practice, the RSC are constantly being interpreted through case law and increasingly with the benefit of The Good Practice Discovery Guide (the Guide), as developed by the Commercial Litigation Association of Ireland (CLAI). The Guide is a set of non-binding guidelines that was prepared to assist practitioners in discovery and ESI issues in practice. The judicial sponsor of the Guide is the Chief Justice of Ireland, Mr Justice Frank Clarke of the Irish Supreme Court.
As noted above, the amendment to the RSC that was intended to improve the efficiency of discovery of ESI provides no guidance on parties' obligations to discover ESI. In this respect, practitioners must rely on the following court rules and case law.
RSC – Voluntary Discovery
As outlined in 4 Discovery/Disclosure of ESI, parties requesting discovery must try to agree terms for voluntary discovery through correspondence. According to Order 31 Rule 12(6)(a)(iii) of the RSC, each letter seeking voluntary discovery should seek the production of any ESI in searchable form and, if necessary, the provision of inspection and searching facilities owned or operated by the party from whom discovery is requested.
This requirement is difficult to comply with as, in most cases, the requesting party will be unaware of the form and content of the documents sought. It is common practice for a party requesting discovery to include a 'catch-all' paragraph in the letter seeking voluntary discovery requesting that the party from whom discovery is requested identify whether their documents comprise ESI and whether ESI is stored in searchable format.
RSC – Court-ordered Discovery
In circumstances where letters for voluntary discovery do not result in an agreement to provide documents or if there is a dispute as to the nature of the categories sought, the requesting party may seek an order of the court granting discovery against the party from whom discovery is requested. Order 31 Rule 12(2)(c) of the RSC provides that where the discovery ordered by the court includes ESI that can be provided without significant cost, the court may order that (i) the ESI be provided in searchable form, or (ii) the party from whom discovery is requested make inspection and searching facilities available to the requesting party.
There is limited case law dealing with parties’ obligations to search and review ESI.
In Atlantic Shellfish Limited v Cork County Council ( IEHC 215; unreported, High Court, Budd J, 15 August 2006), the court considered the extent of the obligation to search for documents that may be covered by an order of discovery. The court held that an order for discovery carried with it “a duty to search archives of records and files diligently for material documents including computer records... a party is required to make a reasonable search.”
While no court in Ireland has considered the precise meaning of “reasonable search,” there has been cautious endorsement of the use of keyword searches in searching through ESI. In Hansfield Developments v Irish Asphalt Limited ( IESC 4; unreported, Supreme Court, 23 January 2009), the Court emphasised that the use of keyword searches required the parties to discuss and agree upon the use or omission of certain keywords. It has been further noted in Thema International Fund plc v HSBC International Trust Services ( IEHC 19; unreported, High Court, Clarke J, 26 January 2010) that, while keywords are valuable, the use of keyword searches alone would not ordinarily constitute compliance with one’s discovery obligations.
The Thema case also considered the process to be undertaken by parties in their search for and review of ESI for the purposes of complying with the rules:
It should be noted that Clarke J in this decision commented that the court should “not be prescriptive as to the method to be followed” but that the process outlined above was “an entirely appropriate means for approaching the question of making discovery in a case such as this.”
This case provides very useful guidance as to the type of procedure to be followed and what is acceptable to the Irish courts.
Further to the helpful outline of the discovery process in Thema, the Guide referred to under 2 Electronically Stored Information provides a useful explanation and step-by-step instructions on the phases involved in a typical discovery project, as follows:
The Guide has been endorsed in decisions of the High Court in Ryanair Limited v IMPACT, IALPA and Evan Cullen ( IEHC 425; unreported, High Court, Ní Raifeartaigh J, 20 February 2017) and Sean Gallagher v Raidió Teilifís Éireann ( IEHC 237; unreported, High Court, Keane J, 11 April 2017).
It should be noted, however, that while the Guide has been considered “an excellent document setting out a roadmap for large commercial cases to which the issue of eDiscovery is central,” Ni Raifeartaigh J in Ryanair Limited considered that the detailed, rigorous and costly approach to discovery envisaged by the Guide is not appropriate in all cases and that the step-by-step phases outlined above should – as those steps outlined by Clarke J in Thema – form the basis for the method of discovery to be employed rather than be a set of prescribed rules that must be followed to the letter.
The RSC do not provide guidance as to the time at which discovery may be sought. The general rule is that discovery (including ESI) shall be sought when the pleadings for both parties have been delivered and are closed, ie, typically when the defendant has delivered its defence. In the absence of formal pleadings, discovery should be sought when the issues in the proceedings have crystallised. Discovery arises after the close of pleadings because the issues in the case need to be defined before discovery. Discovery is not intended as a means to identify causes of action or grounds of defence and is not to be used as a fishing expedition.
There are limited circumstances in which the courts grant discovery before the close of pleadings. The modern Irish case on the issue is Law Society of Ireland v Rawlinson ( 3 IR 592), in which the trial judge found that the court has power to make an order for discovery prior to the delivery of the statement of claim, but that such an order “should only be made in the most exceptional circumstances.” This principle was also applied, in different circumstances, in AMEC plc v Bord Gais Eireann (Unreported, High Court, Laffoy J, 4 July 1997).
As mentioned under 3 Case Law or Rules Relating to ESI, parties requesting discovery must try to agree terms for voluntary discovery through correspondence before seeking an order for discovery. The letter seeking voluntary discovery must:
These elements of the letter are mandatory.
There are three possible responses to the letter seeking voluntary discovery.
In circumstances where the party from whom discovery is requested refuses to make voluntary discovery or fails to respond to the letter seeking voluntary discovery, the requesting party may proceed to issue a motion for discovery.
The motion for discovery must be grounded on an affidavit that:
On hearing the motion, the court may refuse or adjourn the motion if it is unsatisfied that such discovery is necessary, or make an order for discovery in the terms of some or all of the categories sought. The onus of proof that discovery is necessary is on the applicant.
Recently, however, the courts appear to have increased the threshold of “necessity.” The Court of Appeal in declining a motion for discovery, in Tobin v The Minister for Defence & Ors ( IECA 230, Court of Appeal, Hogan J, 9 July 2018) indicated that where an applicant is seeking discovery of documents that is likely to be extensive, discovery orders should not be made unless all other available options have been properly explored. This is to be done at first instance in the form of interrogatories, or notices to admit facts, and the court emphasised that it is in the interests of both parties to facilitate these alternative means of discovery.
The court order will recite the precise categories of documents to be discovered.
Order 31 Rule 29 of the RSC provides that it is possible to seek discovery against a non-party, which is commonly known as third-party discovery.
To seek discovery against a non-party, the requesting party must follow the procedures outlined above (by first sending a letter seeking voluntary discovery and then, in the absence of a response or agreement, by motioning the court to grant an order for discovery). In order to seek discovery against a non-party, the following conditions must be satisfied:
Once the categories of discovery are agreed upon, either on a voluntary basis or by order of the court, the party providing discovery must swear an affidavit of discovery, as referred to in 2 Electronically Stored Information. This affidavit, and the consequences of failing to comply with discovery obligations, is considered in greater detail below.
Obligation to Preserve ESI
One of the first steps in the discovery process is to inform the relevant parties of their duty to preserve data that may be of relevance to the matter and to suspend any routine/automatic destruction of data. This is vital to ensure that relevant data is not destroyed, either accidentally or intentionally.
Preservation is best achieved by putting in place a legal hold, ie, informing all the potential relevant personnel who may be custodians of relevant data, in writing, of their obligation to preserve all relevant data to the actual or threatened proceedings. The legal hold should apply to all records, whether hard copy or ESI. The legal hold should be addressed to personnel involved in the activities that are relevant to the dispute and to the IT personnel or service providers of an organisation. A record should be kept of the individuals to whom the legal hold has been sent.
It is prudent to take additional steps to preserve data in the event that one or more custodians fails to act on a legal hold instruction. For example, systems that automatically destroy data should be suspended. Such technical preservation steps will depend on the data sources identified, their location and accessibility, and the capability of the available technology.
Once litigation has been commenced, a party must cease any routine destruction of documents that might be relevant. It is recommended that a letter be sent at an early stage in proceedings asking that all necessary steps be taken to preserve all relevant documentation. Where there is potential for litigation, a party’s adviser should promptly advise of the obligation to retain documents and the consequences of a failure to do so.
The obligation to preserve documents applies once litigation is threatened.
Scope of the Obligation
A party is obliged to discover only those relevant documents that it has or has had in its “possession, power or procurement.”
It is extremely important that there is no destruction of any material that may be relevant to the discovery. Inadvertent destruction may draw negative inferences. Specific legal guidance should be sought if there is doubt as to the relevance of any material.
If a party is aware of documents that were once in its possession, power or procurement but that now cannot be located and may have been destroyed, their prior existence must nonetheless be recorded in the affidavit of discovery and an explanation given as to their likely whereabouts or reason for non-availability.
Furthermore, parties are only required to preserve and discover documents that are relevant. The test for relevance, as applied by the Irish courts, is set down in Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company ( 11 QBD 55). A document is relevant where it relates to any matter in question in the action. This means that the document may directly or indirectly enable the party requiring the affidavit to advance his own case or to damage the case of his adversary and that the document may fairly lead the party requiring the affidavit to a train of enquiry that may advance his case or damage his adversary’s.
It is important to note that relevance does not equate to materiality. For example, in discovery of ESI, it is common practice to discover parent emails to which relevant documents are attached, even though the email itself is not relevant.
Not only must documents be relevant, but they must be necessary (for disposing fairly of the case) and proportionate (particularly as regards costs).
Failure to preserve relevant documents when on notice of litigation may amount to a failure to make (adequate) discovery, which can have serious consequences. If the plaintiff(s) to an action fails to make adequate discovery, the case may be struck out, costs awarded against the infringing party, or the proceedings dismissed. If the defendant(s) to an action fails to make adequate discovery, judgment may be granted against it.
Indeed, it will be helpful to the cause of the party from whom discovery was requested if it can produce the legal hold notice discussed under 5 Obligations to Preserve ESI, in order to show that effort was made to comply with preservation and retention obligations.
In very serious cases, failure to make discovery can lead to attachment to prison for contempt of court. It is common for the party seeking discovery to motion the court seeking an order compelling further and better discovery, although this may be a fruitless exercise in circumstances where documents have been destroyed.
The sanctions or penalties will typically arise when the appropriate orders are made by the court.
Orders for costs at the close of cases do not include the costs of discovery, unless specified in the order. As such, each party bears their own costs of discovery unless otherwise ordered by the court, although the general rule of Irish law is that the ultimate successful party to proceedings will be able to recover its costs from the unsuccessful party (ie, costs follow the event). In some instances – for example, where the court is satisfied that there is a disproportionate effort being requested of one party in relation to searching for ESI – there have been suggestions of cost shifting, which are normally dealt with by way of undertakings agreed between the parties as opposed to judicial orders.
Costs in respect of non-party discovery are treated rather differently. Order 31 Rule 29 stipulates that a party seeking non-party discovery must indemnify that person in respect of all costs reasonably incurred by such person. It states that an order for discovery against a non-party will only be made on the basis of an undertaking from the party seeking discovery to pay the costs of the non-party in making it and any costs incurred on the motion. The costs of the making of discovery by a non-party are deemed to be the costs of the party seeking the discovery. As such, if the party seeking non-party discovery is successful in the proceedings, he or she will generally be able to recover those costs from the unsuccessful party.
Further, in terms of costs associated with discovery, a reform initiative is under way involving various stakeholders in the Irish legal community, which has commenced with the Commercial Litigation Association of Ireland making a submission to the Review on the Administration of Civil Justice regarding the reform discovery in Ireland with a view to making the process less expensive.
As mentioned in 3 Case Law or Rules Relating to ESI, parties requesting discovery must try to agree terms for voluntary discovery through correspondence before seeking an order for discovery. Although not compulsory, it is highly recommended and is good practice for the parties to meet and confer at the earliest possible stage with a view to agreeing the scope (categories) and approach for the discovery. Such a conferral could reduce costs by focusing on documents most likely to be of relevance. Ideally, this meeting should take place before discovery requests are exchanged, although in practice this is not usually the case.
It is also highly recommended that, where significant amounts of ESI are involved, the parties load the data on to a software platform where any proposed filtering (date ranges, keywords, etc) can be applied easily. It is good practice to have a dialogue about the sufficiency of the overall approach (the importance of which has been outlined previously by reference to the Thema decision).
A party’s obligation to search has developed by reference to limited case law in this jurisdiction, which is considered at length under 3 Case Law or Rules Relating to ESI.
Disclose and Produce
As considered under 5 Obligations to Preserve ESI, a party is obliged to discover only those relevant documents that it has or has had in its “possession, power or procurement.” These documents are then disclosed by way of being scheduled to an affidavit of discovery. All documents that have been deemed relevant must be disclosed by way of being noted in the schedules to the affidavit of discovery. Those documents over which the party asserts privilege are listed in the privileged schedule. Where a claim of privilege made in respect of a document is not challenged or where, upon challenge, the claim of privilege is upheld by the court, the document is immune from production.
Privilege is discussed in further detail in 15 Privacy Statutes & Rules or Regulations.
As mentioned above, once the review of potentially relevant documents is complete, the party from whom discovery is requested must swear an affidavit of discovery, which comprises three lists or schedules of documents:
The party from whom discovery is requested must swear on oath that the documents listed in the three schedules to the affidavit comprise all the discoverable documents that it has or has had relating to the category or categories of discovery sought and that there are no further documents within these categories that it can discover. The deponent (the person who swears the affidavit) will be expected to have knowledge of the documents listed, including the steps taken and searches made, and may be cross-examined in respect of the contents of the affidavit.
Once the affidavit has been delivered to the requesting party, that party and its advisers are entitled to attend at the office of the party from whom discovery is requested to inspect the original documents and identify those documents in respect of which it seeks copies. In practice, this does not usually occur and the advisers usually write to each other seeking copies of all documents listed in the first schedule or agree to exchange electronic briefcases of the documents.
As discussed above, the court can order that ESI is provided to parties in a searchable format.
As mentioned above, discoverable documents must be outlined in the first schedule to the affidavit of discovery. It is common practice that the requesting party will seek copies of all documents referred to therein. Whether provided voluntarily or court-ordered, ESI must be in a searchable format. The party from whom discovery is requested may be required to allow the requesting party to make use of its IT system in order to review the documents, although in practice this is rarely sought and typically only where an issue as to the provenance of a document has been raised.
The RSC provides that ESI should be provided in the searchable form in which it is held by the party from whom discovery is requested, known as native format. As noted in the Guide, this is often the most efficient way to produce ESI as it does not require the producing party to incur the cost of converting it to a different format.
In the interests of efficiency, it is good practice that, at the time of seeking voluntary discovery, the parties confer and consider agreeing to a common production format and common discovery platform software.
The time during which discovery must be made should be agreed between the parties. A failure to provide the required documents to other parties within the agreed or, indeed, court-ordered time period could have adverse cost implications and result in court sanctions. If it becomes clear that a party will not be able to comply with directions/agreement in relation to timing, a party should advise the other side of this as soon as possible and try to agree an extension.
The RSC do not require that the review of potentially relevant documents be carried out manually, but also do not refer to the use of technology in carrying out the review.
In the case of IBRC & Ors v Quinn & Ors ( IEHC 134; unreported, High Court, McGovern J, 13 February 2015), the High Court approved the use of Technology Assisted Review (TAR) in the discovery process. The court commented that the RSC seek to uphold the administration of justice in a manner that encompasses the objectives of expedition and economy. The court noted that, in discovery of large data sets, TAR using predictive coding is at least as accurate – and probably more so – as the manual or linear method in identifying relevant documents and that using TAR allows for a more expeditious and economic discovery process.
The Court stated, however, that the process must contain appropriate checks and balances to render each stage capable of independent verification and that a balance must be struck between the right of the party making discovery to determine the manner in which discovery is provided and participation by the requesting party in ensuring that the methodology chosen is transparent and reliable. This should be a matter for agreement if/when the parties confer (see 9 Obligations of Parties to Meet and Confer).
The use of keyword searches has been considered in 3 Case Law or Rules Relating to ESI. Further, Early Case Assessment (ECA) technologies are in wide use in high-value commercial litigation, either solely or in conjunction with keywords.
Privileged documents may be disclosed inadvertently, ie, documents over which solicitors wish to assert privilege in a discovery are unintentionally handed over to other parties to a dispute. This risk of inadvertent disclosure is of greater concern in the digital age, as lawyers are required to handle vast quantities of data. Fortunately, disclosure of privileged documents is not sufficient in itself to amount to a waiver of privilege.
If a privileged document is listed inadvertently in the first schedule to the affidavit of discovery, the party making discovery should immediately notify the other side of the error. Furthermore, during a discovery process solicitors have a duty not to knowingly read or make use of any privileged documents that are inadvertently revealed to them and should notify the other solicitors if such a disclosure is made. Where a party seeks to reassert privilege over a privileged document disclosed in error, the court will apply a two-stage test: (i) whether it was evident to the solicitor receiving the documents that a mistake had been made and (ii) whether objectively it would have been obvious to a hypothetical reasonable solicitor that the disclosure was inadvertent.
This test was set down by Clarke J in Byrne v Shannon Foynes Port Company ( IEHC 315;  1 IR 814) and has been subsequently applied in Shell E&P Ltd v McGrath ( IEHC 409;  2 IR 574). In Byrne, Clarke J placed strong emphasis on the volume of documents, ie, the court would be more likely to recognise that an error had been made and that privilege had not been waived where a small number of privileged documents 'slipped through the cracks'.
In practice, it is prudent to put in place a 'clawback agreement' with the opposing party in a discovery process, which generally provides that either party may identify and, without opposition (unless, of course, it was incorrectly claimed), recover any privileged documents that have been inadvertently provided in discovery. This removes the risk of having to raise unnecessary issues to determine the status of inadvertent disclosure.
As a matter of Irish law, a party does not lose privilege by virtue of sharing a document over which privilege has been asserted with a third party, provided that there is a written agreement that the document is being disclosed for a limited and defined purpose, and confirming that it will be kept strictly confidential (this was proposed in Fyffes plc v DCC plc & ors –  IESC 36; unreported, Supreme Court, 27 July 2007).
Privilege is considered in further detail below.
Where information is relevant to the categories of discovery sought, it must be discovered regardless of whether it is commercially sensitive and/or confidential, save in certain exceptional circumstances by leave of the court.
In certain instances, it may be possible to redact commercially sensitive information within the body of a relevant document where the information concerned is not relevant to the categories of discovery. The reasons for redacting should be set out in the affidavit of discovery.
Unfortunately, there exists no definitive set of rules as to what information may or may not be edited out of documents that must be produced for inspection. The courts have confirmed, however, that there is no automatic right to inspect documents in unredacted form.
Privilege is the entitlement to refuse disclosure of the contents of a document. As noted above, the party making discovery must disclose the existence of documents over which it asserts privilege in the affidavit of discovery. There are several types of privilege that can attach to documents, but the most common type of privilege asserted is legal professional privilege, which is a well-established principle that extends to two categories of documents: (i) confidential documents created in apprehension or contemplation of litigation, or for the purpose of prosecuting or defending litigation (known as litigation privilege); and (ii) confidential documents created for the purposes of giving or obtaining legal advice (known as legal advice privilege).
While considering which documents are relevant and must be discovered, each document must be assessed to consider whether it is appropriate to assert privilege over it. The Hansfield case emphasises that clients must rely on their solicitor's advice in determining whether they have a right to claim privilege and that the client should not make that assessment. As noted under 11 Requirement to Certify that Search Carried Out, privilege must be asserted in the proper form in the first schedule (second part) to the affidavit of discovery. Failure to do so may result in an otherwise valid claim being unsuccessful.
Other, less common forms of privilege include executive privilege, statutory entitlement privilege, diplomatic privilege, sacerdotal privilege and journalistic privilege.
Where discovery is sought against a named party to litigation in Ireland, the named party is obliged to discover relevant documents in its power, possession and procurement even if it is domiciled outside the jurisdiction. The same is true for an Irish-domiciled named party.
However, it is not possible to seek discovery against a foreign-domiciled non-party. In the case of Fusco v O’Dea ( 2 IR 93), an application for non-party discovery against the government of the United Kingdom was denied as “to grant an order for discovery against such a third party outside the jurisdiction would... [subject] such a party to the jurisdiction of the Irish courts in circumstances other than those provided for in [the RSC].”
However, it should be noted that, in the Thema case referred to above, Clarke J found that “in large corporate structures... it will frequently be the case that companies delegate, either formally or informally, certain of their functions to other companies within the same group” and that it would be an abuse of process for a party to “decline discovery of documents held by another company within the same group... and then seek to place reliance on those documents at trial.” As such, a party is obliged to discover documents as it may be able to secure from related companies and on which it intends to rely, and, in this case, some of the related companies were located outside the jurisdiction.
The most important restrictions on the transfer of data from Ireland are contained in the Data Protection Acts 1988 and 2018 (the Data Protection Acts). Section 11 of the Data Protection Acts prohibits the transfer of personal data from the State to a place outside the State, save in circumstances where a Mutual Legal Assistance Treaty (MLAT) exists between Ireland and the state to which it is proposed the data be transferred. For the purposes of the Data Protection Acts, “personal data” means data relating to a living individual who is or can be identified from such data.
The issues surrounding the extraterritoriality of discovery requests was recently considered by the federal court of appeal (the Second Circuit) in Microsoft v United States (829 F.3d 197 (2d Cir. 2016)). In the case, the US government sought to compel Microsoft to produce certain customer data from its Irish data centre despite Microsoft arguing that this was prevented by territorial limits. The US government sought to have the data held in Ireland transferred, notwithstanding certain provisions of Irish law, namely the Data Protection Acts, and without considering the terms of the MLAT with Ireland. The case was referred to the US Supreme Court but was dismissed due to the issues in the case becoming moot after the signing into law of the Cloud (Clarifying Lawful Overseas Use of Data) Act in the USA in March 2018.