- 19 June 2018
- Posted by: Peter Kearney
- Categories: Commercial Litigation, Intellectual Property
Electronic Discovery — Recent Changes to the Superior Court Rules
Legislation was passed in April of this year amending the Rules of the Superior Courts on the subject of discovery. As matters stand, either party to a litigation case may apply to court seeking an order directing the other party to provide discovery, on oath, of documents, on the basis that it is necessary for disposing fairly of the case or for saving costs. In seeking such discovery, reasons must be provided to enable the court to determine whether such discovery is necessary in the circumstances of the case.
The rules were amended to take account of the increasing use of electronic technologies which now form the predominant basis of communication between parties. Therefore, for discovery purposes, the word “document” includes all electronically stored information.
The main changes to the new rules can be summarised as follows:
Electronically stored information in a searchable format can be sought by one party against another.
The court may order that electronically stored information be provided electronically in a searchable format. If, however, the court is satisfied that such electronic data cannot be subjected to a search by the party seeking discovery without incurring unreasonable expense, then the court may order that the party ordered to make such discovery makes available inspection and searching facilities using their own IT technology.
The rules also ensure that the courts have regard to restricting access to sensitive non-discoverable electronically stored information. To that end, the court may seek undertakings from any party, as it deems necessary, to ensure that such documentation is not accessed or accessible.
The rules state that the court may direct that the inspection and searching of documents be undertaken by an independent expert. If so directed, the party seeking the discovery order must indemnify the independent expert for his fees and expenses, which may ultimately be recovered if the party seeking discovery is successful in their action.
The rules also make some changes with regard to the classification and production of documents in an affidavit of discovery, as follows:
- Documents of the same or a similar nature, when numerous, should be grouped together, and numbered, or otherwise marked in a way so as to be identifiable.
- The lists of documents made in an affidavit of discovery must correspond with the categories in the order of discovery made and in a sequence corresponding with the manner in which normally stored in the usual course of business.
These changes should make large discoveries easier to manage, as in the past, it could be extremely difficult to correlate the documents listed in the affidavit of discovery with the documents provided on inspection, serving to prolong the discovery process and increase costs.
The rules also provide that an application can be made by either party for an order varying the terms of the discovery order made. The court may go ahead and vary such terms if it is satisfied that further discovery is necessary for disposing fairly of the case or for saving costs, or where the discovery originally ordered was unreasonable, having regard to the costs or other burdens of providing such discovery.
Finally, the new rules have provided new wording for the affidavit of discovery to be sworn by the party providing discovery. The deponent must now swear that they understand their obligation to provide the documents ordered which are within his/her possession, power or procurement and which may enable the party seeking discovery to advance his own case or damage the case of the party giving discovery. This new wording is included to ensure that the party making the discovery is fully aware of the serious obligations they owe to the opposing party and to the court.
For further information, please contact Peter Kearney at firstname.lastname@example.org
This information is for guidance purposes only. It does not constitute legal or professional advice. Professional or legal advice should be obtained before taking or refraining from any action as a result of the contents of this publication. No liability is accepted by Reddy Charlton for any action taken in reliance on the information contained herein. Any and all information is subject to change.