1. Fiachra Moody Digital Investigations and the Law
E-Discovery from a costs perspective: A multi-jurisdictional examination of rules aimed at
reducing the cost of electronic discovery/disclosure.

2. Fiachra Moody Digital Investigations and the Law
The rapidly increasing use of electronic documents has changed the means in which business and
legal matters are conducted in contemporary society. Alongside this, the need to evaluate and
discern appropriate documents for discovery has proven ever more costly for clients and oftimes
accounts for more than half of the outlay for most forms of litigation. As a result, discovery and
its use in litigation has become a carefully scrutinised activity by both law reform advocates and
the broader legal community. This answer will focus on the development of the laws and rules
pertaining to discovery in Ireland with special attention being given to that which relates to
Electronically Stored Information (‘ESI’) and measures taken to reduce costs in e-discovery
matters. It will also consider the differences and similarities of rule development relating to these
issues in Ireland, England and Wales, and the USA, with the first of these being the primary
subject of this essay.
In a world where multinational trade and business is now the norm, litigation has too become more
comparative in approach as a result. This has acted as a driving force in the reform of outdated
discovery rules which were not adequate to deal with phenomena such as electronically stored
information. In practice, electronically stored information has become increasingly the de facto
form of relevant information rather than hard-copy documents. Therefore, discovery in modern
practice is generally ineffective without some form of electronically stored information being
considered. Where once lawyers might have sifted through boxes of paper documents, today’s e-
discovery professionals are filling the void in an industry estimated in some quarters to have a
potential global value of €2.5 billion by 2018.1 However, there are significant costs for the parties
involved in the discovery process. Technology has vastly increased the volume of data generated,
the result of which is far from creating a ‘paperless office’. The proportion of hard-copy data has
broadly increased, but there has been an exponentially greater increase in the volume of
Electronically Stored Information.
As mentioned previously the cost of litigation has dramatically increased especially with regard to
disputes involving Electronically Stored Information due to three reasons:
1. The volume of data has dramatically increased.
1
Mark Hilliard, ‘Rise of e-discovery signals start of brave new world for litigation’ The Irish Times (Dublin,
10 November 2014)

3. Fiachra Moody Digital Investigations and the Law
2. Information now stems from various forms of media, with considerable outlay for the
production of this data.
3. Independent technological assistance may be used to produce data from legacy systems
and to show that it has not been interfered with at a significant cost. 2
This is an important consideration for parties prior to undertaking litigation and more broadly for
protecting access to justice.
One of the most visible starting points in the development of rules relating to e-discovery is the re-
definition of ‘documents’ under the law. In the Irish jurisdiction this was first addressed in
McCarthy v O’Flynn3 wherein the court found that documents, when referred to in relation to
discovery rules, was to include: ‘any thing which, if adduced in evidence at the hearing of the
proceedings, would be put in, or become annexed to, the court file of the proceedings.’ This
redefining of the term ‘document’ was affirmed and expanded in Clifford v Minister for Justice
where the Irish High Court concluded that: ‘tape recordings and compact discs and material on
computer are now encompassed as containing information which, if relevant to the issues, is to be
considered for discovery.’4
Prior to the introduction of the 2009 amendment, the issue of e-discovery was first explored by the
Irish Supreme Court in the landmark case of Dome Telecom Limited v Eircom Limited.5 In this
case the plaintiff was seeking a large-scale discovery motion of the total number of minutes of
calls made to specific 1800 freephone numbers that were operated by its competitors. This type of
mass discovery would have involved and necessitated the extraction of data and the collation and
analysis of said phone calls from an expansive database. The order was initially granted by the
High Court, despite the defendant’s claims that this would go beyond merely disclosing an
‘existing document’ and would instead involve the more complex and costly procedure of ‘data
mining’. Following an appeal to the Supreme Court, this order was vacated as it was held that it
was not necessary that the defendant make such discovery. Essentially, the court’s decision was
grounded on the proposition that proportionality should be exercised so as to prevent the costs of
2
Kennedy and Grace, Total Recall, Law Society Gazette (2009) p19
3
McCarthy v O’Flynn [1979] IR 127
4
Clifford v Minister for Justice [2005] IEHC 288
5
Dome Telecom Limited v Eircom Limited [2007] IESC 59

4. Fiachra Moody Digital Investigations and the Law
discovery spiralling out of control. Although an arguably correct ruling, the dissenting argument
of Justice Geoghegan has helped to develop more recent legal opinions on the matter:
‘It is common knowledge that a vast amount of stored information in the business world,
which formerly would have been in a documentary format in the traditional sense, is now
computerised. As a matter of fairness and common sense, the courts must adapt themselves
to this situation and fashion appropriate analogous orders of discovery.’6
Since this judgment, and through the recommendations of the Law Society of Ireland,7 a 2009
update to the Rules of the Superior Courts has provided for discovery of the broad category of
“electronically stored information”. It is noteworthy that the term was not explicitly defined which
was seen by many commentators as a method to import flexibility to the rule.8
The rules set out in Order 31 of the Rules of the Superior Courts were implemented to govern the
disclosure of documents between parties in Irish litigation which usually takes place once the
pleadings have closed. As per the Rules, each party issues a written request for voluntary discovery
from the other party of specific categories of documents now or previously in its possession, power
or procurement, relevant to the dispute. However, the written request must comply with the
following requirements:
● Both parties must stipulate the precise categories of documents that they believe are
necessary.
● Requests must be confined to documents that are material to the issues in dispute and
necessary for the fair disposal of the proceedings or for saving costs.
● A reasonable period of time must be given for discovery to be made.
If an agreement is reached between the parties regarding discovery, this will have the same effect
as a court decreed order. In the absence of agreement, the court can order discovery on
applications by the parties.
6
Dome Telecom Limited v Eircom Limited [2007] IESC 59
7
Law Society of Ireland, Civil Litigation Discovery in the Electronic Age: Proposals for Change (Dublin,
2007)
8
Rules of the Superior Courts 2009, O.31, r.12(13)

5. Fiachra Moody Digital Investigations and the Law
Assuming the discovery has been agreed or ordered, the documents are then disclosed in a two-
stage process:
● Parties disclose on affidavit the existence of documents that are relevant to the proceedings
at hand.
● These documents are then made available for inspection, unless exceptions to the rule such
as legal privilege exempts the party from production. Generally, in practice copies of the
documents are provided to the other party rather than an inspection being required.
If the parties fail to make discovery as agreed or ordered, applications can be brought to have the
claim dismissed or defence struck out and the parties could be liable for an attachment order.9
Although e-discovery is subject to the same general principles and rules as traditional discovery,
further practical considerations have emerged in relation to proportionality and reasonable efforts
in carrying out discovery.These principles are important for several reasons such as not creating a
disproportionate burden on the plaintiff, to facilitate a fair disposal of the case, and also to monitor
and temper costs. The update to the Rules introduced a nuanced approach to electronically stored
information disclosure. Interestingly, they also introduced the requirement that the applicant
specify and justify electronically stored information.
In more recent decisions there has been a notable shift towards balancing costs and embracing e-
discovery. Since the decision in Dome Telecom there has been an increasing willingness to
implement and utilise e-discovery in civil matters. This was first brought to light in relation to the
‘Menolly Homes’ pyrite litigation or Hansfield Developments Ltd & Ors v Irish Asphalt Ltd &
Ors.10 The defendants in this case argued for the dismissal of the plaintiff’s claim for the failure to
make proper discovery. It eventually was discovered that a number of emails relevant to the
litigation had not been discovered by the plaintiff due to insufficient communication between both
sides. The High Court held that the basic principles of identifying, collecting, and processing
potentially relevant data to enable a search filter to be applied were not sufficiently carried out.
Although the defendants were unsuccessful in dismissing the claim, the court stated that both
parties should set out a program outlining the primary areas of the e-discovery process, which
9
Kennedy and Grace, Total Recall, Law Society Gazette (September, 2009) p19
10
Hansfield Developments Ltd & Ors v Irish Asphalt Ltd & Ors [2010] IEHC 32

6. Fiachra Moody Digital Investigations and the Law
should include scope, search terms, and collection parameters.11 However, despite discussing the
issue of the adequacy of search terms and keywords, there was no affirmative deliberation in this
regard by the court but there was implicit acceptance that this might be employed if agreed by both
parties.
More recent cases such as Thelma International Fund PLC v HSBC Institutional Trust Services
(Ireland) and Thelma Asset Management Limited and 2020 Medici AG12 have also helped to
further advance the principles first suggested by Geoghegan J in Dome Telecom. This case was
part of the fallout created by the Bernie Madoff controversy and related to an application by the
plaintiff for an extension of time to make discovery. Notably, this was one of the first detailed
understandings of e-discovery and the advantages of keyword searches expounded by the Irish
judiciary. Justice Clarke laid out a set of principles that both parties to litigation should consider
when conducting e-discovery in litigation. It was also suggested by Clarke J that the rules ought
to be changed to refine the scope of discovery with due regard being given to proportionality and
costs.
The development of the case law in Ireland has created a greater comprehension and recognition
of the need for e-discovery in modern litigation. Due to its potential to locate relevant
documentation from ostensibly infinite data sources, and in matters where the litigation process
may benefit from being expedited, it’s clear to see the reasons for the notable shift in legal
consensus towards the harnessing of e-discovery technology. Although the introduction of new
rules in relation to electronically stored information clarified a substantial amount of the
outstanding ambiguity present following Hansfield and Thelma, the rules ultimately failed to
define any specific guidelines as to the extent of electronically stored information that is
discoverable. In this regard, England and Wales’ 2010 guidelines, as set out in the Practice
Direction 31B, provided for greater consistency in terms of defining the scope of discovery.13
In more recent years the area of predictive coding and keyword specification has been deliberated
over and suggested as a key area of streamlining costs in civil and commercial litigation.
11
Greene and Fox, Children of the Revolution, Law Society Gazette (July, 2012) p36
12
Thelma International Fund PLC v HSBC Institutional Trust Services (Ireland) and Thelma Asset
Management Limited and 2020 Medici AG [2011] IEHC 496
13
Civil Procedure Rules (Britain) 2010, practice direction 31B

7. Fiachra Moody Digital Investigations and the Law
Technology Assisted Review (‘TAR’) or predictive coding as an alternative to the more traditional
and linear review of documents was first put forward in the US in Da Silva Moore v Publicus
Groupe by Magistrate Judge Andrew Peck of the U.S. District Court in the Southern District of
New York.14 In this decision the court held that the defendants could use predictive coding to
review as many as 3 million electronic documents as part of the parties’ e-discovery protocol. As
the plaintiffs and defendants both agreed to use predictive coding to cull from the massive number
of documents, the case appeared to set the precedent for judicial approval of predictive coding.
The agreement of protocol for e-discovery is in line with the Sedona principles, however, it
ultimately was not a judicial decision.15
Further development regarding the monitoring of costs and proportionality in this jurisdiction is
seen in the landmark case of O’Leary v Volkswagen Group Ireland where the Supreme Court
expressly approved the use of search terms to narrow the amount of documents specified for
manual review.16 This case follows the pattern developed in earlier English judgments relating to
the use of search terms such as Digicel (St Lucia) Ltd v Cable and Wireless plc.17
However, the most prominent case in the Irish jurisdiction regarding cost reduction in e-discovery
is the 2015 case of the Irish Bank Resolution Corporation Limited & Ors v Sean Quinn & Ors.18
In his judgment Justice Fullam developed a landmark decision paving the way for TAR in the
common law world. The use of TAR as with search terms and other e-discovery tools allows for
the narrowing of categories of documents for manual review. In his ruling Fullham J acknowledged
the limitations of the 2009 Rules in terms of providing for ‘the adoption by a party of technology
assisted review using predictive coding. Neither is there a specific rule requiring linear manual
review.’
In this case the plaintiffs argued that for the 680,000 documents to be reviewed, using traditional
linear methods, it would take an approximated time of 9 months and €2 million not including
supervision and technology costs. The use of TAR, it was argued, would allow for a much shorter
14
Da Silva Moore v. Publicis Groupe & MSL Groupe et al, No. 1:2011cv01279 - Document 175 (SDNY,
2012)
15
The Sedona Conference, The Sedona Principles: Best Practices Recommendations & Principles for
Addressing Electronic Document Production (2nd edn, 2007)
16
O’Leary v Volkswagen Group Ireland [2015] IESC 35
17
Digicel (St Lucia) Ltd v Cable and Wireless plc [2008] EWHC 2522
18
Irish Bank Resolution Corporation Limited & Ors v Sean Quinn & Ors [2015] IEHC 175

8. Fiachra Moody Digital Investigations and the Law
timeframe and a substantially lower cost. The proportionality element was a key part of the court’s
decision in finding for the plaintiff in their motion.
As a result, Justice Fullam stipulated that:
“As technology assisted review combines man and machine, the process must contain
appropriate checks and balances which render each stage capable of independent
verification. A balance must be struck between the right of the party making discovery to
determine the manner in which discovery is provided and participation by the requesting
party in ensuring that the methodology chosen is transparent and reliable. Ordinarily, as
the rules in other jurisdictions provide, this is a matter of agreement between the parties at
the outset.”
The approval of predictive coding as a form of TAR in Ireland has led to embrace of this precedent
in England and Wales in Pyrrho Investments Ltd. v MWB Properly Ltd.19 In this case the English
court approved the use of TAR in e-disclosure following a dispute between the plaintiff, an
investment company, and the defendant, an owner of hotel chains. The Court was clearly guided
by the decision of the Irish High Court in IBRC, and the decision of the Southern District of New
York in Da Silva Moore v Publicis Groupe & MSL Groupe and found that the case was suited to
TAR as it involved a high value claim (upwards of £20 million) and a large volume of documents
(upwards of 3 million). As in the Irish and US precedent on the matter proportionality came to the
fore as a prominent factor in this decision.
Since the inception of e-discovery and the rules governing same there has been a considerable
amount of change in the area of discovery not only in this jurisdiction but also in other common
law jurisdictions such as the US and England and Wales. It has shown to be an effective and useful
tool for deciphering relevant and necessary information to dispose of discovery in an effective
fashion. With the introduction of TAR and other forms of e-discovery tools, litigation has become
a more affordable avenue for parties in a dispute which should allow for greater participation in
litigation by parties that traditionally did not have the means to effectively engage with the process
due to the overbearing costs associated with discovery.
19
Pyrrho and others v. MWB [2016] EWHC (Ch.) 256