Electronic evidence plays a growing part in legal process

7 Oct 2011

Most legal cases in Ireland now involve electronic evidence but there is still a range of different ways in which it is handled, a conference heard yesterday.

E-discovery Ireland 2011, which was held in Dublin, is the first such event in this country to look at the growing area of digital evidence in civil and criminal litigation. Delegates heard how the massive volumes of electronic documents that could potentially come under discovery have created the impression that the process is a costly one.

“The volume of information and the cost of marshalling and disclosing it can be very large,” said Justice Frank Clarke in the opening address.

Ernst & Young revealed details of a survey carried out to determine the extent of electronic evidence in the Irish legal process. It found that in almost three-quarters of cases (73.9pc), the process of identifying and preserving sources of data that may be relevant in a dispute begins as soon as it’s clear litigation or an investigation is due to start.

Preparation and e-discovery

Liam Kennedy, head of dispute resolution at A&L Goodbody, one of Ireland’s largest legal firms, said there are few cases which are not influenced by material produced in discovery. In the civil arena, the ‘Pyrite’ case involving the use of faulty building materials in a housing development in North Dublin dragged on for months due to arguments around e-discovery. Kennedy said this showed the dangers of going into the process badly prepared.

“The fundamental message for lawyers out of e-discovery generally is, when you get to the e-discovery stage, proper planning is essential,” he said. 

Email is considered in every case involving digital evidence, the survey found, followed by laptop and desktop PCs (95.2pc). Shared file servers are investigated in 85.7pc of cases. Interestingly, only two-thirds of cases involve a mobile device like a BlackBerry or iPhone, and backup systems containing historical data are checked in fewer instances: 61.9pc.

Barrister Ronan Lupton referred to the high-profile case of DPP v Joseph O’Reilly, where evidence of emails, phone records and mobile device triangulation were an important part of securing a conviction against the accused for the murder of his wife.

The E&Y survey, which polled solicitors at 14 of the top legal firms in Ireland, also found that data is frequently not preserved in a forensically sound way, with the risk it could be rendered inadmissible in a legal proceeding. Simon Collins, a senior manager at the firm’s fraud investigation and dispute services team in Dublin, told delegates: “Having somebody on your team who understands the forensic technology and who understands the legal aspect is a help, and having them in from day one is important.”

Gordon Smith was a contributor to Silicon Republic