The ruling brings Ireland into line with the position across the
UK, according to a legal expert.
In a telecoms industry dispute former state monopoly carrier
Eircom was asked to produce a report based on information in its
databases. The company refused, claiming that e-discovery did not
cover the creation of new reports.
Though the Supreme Court said that it would be disproportionate
to demand the report in this specific case, it did say that the
Court had the right to ask for such reports.
The decision is an important one, according to an Irish legal
scholar.
"This promises to be a very significant decision, and will
certainly make electronic discovery more attractive for litigants
while at the same time increasing the burden on those from whom
discovery is sought," said TJ McIntyre, an academic and legal
consultant, in his blog,
IT Law In Ireland.
"While this is not the first case on this point … this is the
first case to consider the issue in detail and the first time that
the matter has been ruled on by the Supreme Court," he said.
Pre-paid phone card business Dome Telecom claimed that Eircom
charged too high a rate for calls from mobile phones to its
numbers. It wanted information from Eircom databases on the rates
charged by Eircom to connect its competitors' calls.
Eircom claimed that this required the creation of a new document
from its databases. Irish courts can order the discovery of
documents, but only if they already exist. It cannot order the
creation of a document.
The Supreme Court said that though it would not order disclosure
in this particular case, it must have the right to do so in other
circumstances.
"It is common knowledge that a vast amount of stored information
in the business world which formerly would have been in a
documentary form in the traditional sense is now computerised,"
said its ruling. "As a matter of fairness and common sense the
courts must adapt themselves to this situation and fashion
appropriate analogous orders of discovery. In order to achieve a
reasonable parity with traditional documentary discovery it may
well be necessary to direct a party "to create documents" within
the meaning of the notice of appeal."
"I would be firmly of opinion that an order of discovery can be
made which involves the creation of documents which do not exist,
made in the kind of context in which it is sought in this case.
Otherwise, potential litigants could operate their business
computers in such a way that they would be able to evade any
worthwhile discovery," said the ruling.
The ruling puts Irish law in line with the UK position, where
e-discovery does cover the creation of reports based on the
contents of databases.
"There can be no valid argument that producing electronically
stored information (ESI) involves the creation of a new document
which is therefore outside the ambit of the rules," said Mark
Surguy, an e-discovery expert at Pinsent Masons, the law firm
behind OUT-LAW.COM. "The creation of a spreadsheet or other
electronic analysis is simply a way of efficiently producing the
'documents' constituted by the data itself."
"All that is happening is that technology is changing the way we
conduct our business lives and the way the resolution of disputes
arising out of that business life should be managed," he said.
Surguy said that companies which are unaware of the powers of
the courts can find themselves in difficulties. "Many businesses
are not properly in control of the preservation, destruction,
storage and retrieval of their data and are too often caught on the
back foot responding to the exercise of compulsory disclosure
powers," he said. "These powers can mean huge management disruption
and significant cost, particularly where there is no advance
planning, awareness and effective risk management."
"Businesses which address the issues with their lawyers and
technology advisers before the problems arise will save themselves
disruption and stress when inevitably they become embroiled in a
dispute or regulatory investigation," he said.
