Members of Sean Quinn’s family were recently ordered by the Supreme Court to disclose the passwords to their personal e-mail accounts as part of their on-going dispute with the Irish Bank Resolution Company (formerly Anglo Irish Bank). Text messages exchanged between Mike Aynsley of the IBRC and Irish developer, Paddy McKillen were also introduced in evidence in proceedings before the High Court in London in early 2012. Such digital evidence is likely to form part of most, if not all, discovery Orders made in Ireland in the future, changing the way in which organisations meet their discovery obligations. 

Under the rules of Court, “electronically stored information” may now be sought on discovery. This has resulted in wide-ranging requests for discovery where the opposing side in litigation can seek access to all electronically stored information including, e-mails, hard-drives, USB sticks, text messages, calendar entries, postings on social media websites, and information stored in the “cloud”. It is therefore more important than ever that when litigation on a matter seems likely, appropriate procedures are put in place to ensure that all potentially relevant information, including electronically stored information is retrieved and preserved. Thought must also be given to the potential holders and sources of information to ensure that any such Order is fully complied with. Issues can arise for example where employees hold potentially relevant information on personal devices such as phones or home computers, or in personal e-mail accounts. This may have implications in terms of accessing the data as well as from an employee privacy point of view. 

It is important for parties in considering the merits of their position, to review carefully any electronically-stored information which might otherwise be overlooked, such as voice and text messages and emails.

The potential impact, both in terms of costs and management time, where an Order directing electronic discovery is made, or an information request is received from a regulatory body as part of a statutory investigation, should not be under-estimated. It is important that organisations take appropriate steps to ensure they are adequately prepared to deal with such a scenario.

Contributed by Deirdre O’Donovan.

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