Irish courts can demand data mining in electronic discovery

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.