knowledge 22 January 2018 |

Discovery Reform is Essential if Ireland is to Compete for International Disputes

Undoubtedly discovery is a major contributor to delay and unnecessary costs in its current manifestation and the Chief Justice and President of the High Court have both recently highlighted the need for reform.  

It has been a privilege in recent months to serve as a member of the Commercial Litigation Association of Ireland (“CLAI”) sub-committee that was tasked with reviewing our discovery procedures to identify factors that are contributing to unnecessary costs and delays and putting forward options for reform.  This resulted in a discussion paper, which is available at www.clai.ie.  As part of an ongoing consultation process comments can be submitted via the CLAI website.

As Andrew Fitzpatrick SC noted in his recent article in the December 2017 edition of The Bar Review, ‘Potential reform of discovery procedures’, this consultation process will form the basis for a proposed set of amendments to Order 31 Rule 12 of the Rules of the Superior Courts, which govern Irish discovery procedures. 

There is no magic wand.  Data volumes continue to grow and most people carry multiple devices.  Increasingly the internet of things will become a feature of discovery disputes.  We therefore need discovery rules that are not tied to technological developments but are robust and able to respond to them, without jeopardising the key role that documentary evidence plays.  The sub-committee recognised that merely adopting another jurisdiction’s discovery rules is unlikely to address these issues satisfactorily, not least because the same challenges arise wherever discovery is a feature.  We did, however, draw upon the experience of other common law jurisdictions and the Sedona Principles in framing the discussion paper.

Two key features of the discussion paper are worth comment.

Solicitors know that the requirement to specify categories of discovery significantly increases discovery costs.  It causes parties and the courts to devote considerable resources to disputes over discovery categories.  It limits scope to use technology assisted review, because predictive coding and analytics cannot cope easily with divergent categories.  Probably most exasperating for clients and solicitors, decisions on relevance have to be based upon whether a document falls within a category that has been agreed or ordered, not on whether the document bears any materiality to the issues in dispute.  What this means in practice is that huge volumes of documents have to be reviewed, redacted and produced that bear little, if any, real relevance to the issues.  So when judges express concerns about the sheer volume of such documents that parties produce in response to discovery orders, they may not appreciate that this is largely down to the requirement to specify categories and not the fault of the ‘train of enquiry’ standard of relevance.

Aside from the costs involved in fighting and defending discovery motions, which can be substantial, the bulk of the costs of making discovery arise from the physical review of potentially relevant documents.  There are now fabulous technology tools available to cut out irrelevant data early on and reduce the review, but TAR can only assist in reducing the size of the set requiring review if the system can ascertain the parameters of relevance clearly and without confusion.  Simply put, categories confuse this process.

The relevance test that should apply is also addressed in the discussion paper.  It is proposed that parties should be required to discover documents that are material to the issues as pleaded – a new, clearer test than relevance – which would, I believe, significantly reduce the costs of discovery while ensuring that all material documents are produced.  This would allow discovery to be more focused and efficient, as well as meaningful from the perspective of the parties and indeed the trial judge, and should avoid the risk of parties taking overly narrow interpretations of relevance.

As a practitioner I believe that discovery is crucial to the administration of justice in this jurisdiction.  Contemporaneous documents and particularly electronic communications provide clear evidence as to what the factual position was at a given time.  They betray motivations, reveal key facts and are an essential standard against which oral testimony can be tested.  Discovery reform should aim to speed up the process of identifying key documents, make it more efficient and less costly and more likely to find material documents than our current procedures.

The recasting of our discovery procedures along these lines would significantly increase Ireland’s attraction as a forum for international disputes.