Rules of the Superior Courts (Discovery) 2009 (“2009 Rules”), amend Order 31 of the Rules of the Superior Courts. The 2009 Rules specifically provide for the discovery of electronically stored information (“ESI”) in both the Irish High and Supreme Courts (“Courts”). The new rules came into force on 16 April 2009.

The general position with respect to discovery remains unchanged. Thus, any party to a litigation may apply to the Courts for an order directing another party to make discovery of documents where such discovery is necessary for either disposing fairly of the case or for saving costs.

A party seeking to discover ESI (“Requesting Party”) is required by the 2009 Rules to specify whether it seeks the production of any documents in searchable form and if so, whether for that purpose it seeks the provision of inspection and searching facilities using any information and communications technology system (“ICT System”) owned or operated by the party requested (“Requested Party”).

Where the Courts are satisfied that such ESI is held in searchable form and can be provided without the Requested Party incurring significant costs, the Courts may order that the ESI be provided electronically in the searchable form in which they are held by the Requested Party.

Where such documents could not, if provided electronically, be subjected to a search by the Requesting Party without incurring unreasonable expense, the Courts may order the Requested Party to make available to the Requesting Party inspection and searching facilities using its own ICT System, so as to allow the Requesting Party to avail of any search functionality available to the Requested Party.

In order to ensure that ESI the discovery of which has not been ordered is not accessible, and otherwise to secure the ICT System concerned, the Courts may require that the inspection of ESI shall be undertaken by an “independent expert” or person agreed between the parties to the litigation. The Requesting Party is liable for any expenses and fees incurred by such independent expert or person during this process.

A Requested Party shall list documents or categories of information, and shall provide documents and information for inspection, in a manner corresponding with the categories in the order for discovery and, subject to any such order, in a sequence corresponding with how the documents or information were stored or kept by the Requested Party in the usual course of its business.

An affidavit must be sworn by Requested Parties stating that they understand their obligation to discover the agreed categories of documents and ESI and also that they acknowledge that the discovery may either advance or damage their case.

Any party concerned by the effect of an order for discovery may apply to the Courts for a variation of the terms of the discovery order. The Courts may vary the terms of such order or agreement where they are satisfied that:

  1. further discovery is necessary for disposing fairly of the case or for saving costs; or
  2. the discovery originally ordered is unreasonable having regard to the cost or other burden of providing discovery.