Irish companies face increasing e-discovery challenge

20 Sep 2011

Owen O'Connor, managing director of Cernam

The burden of preserving electronic records as potential evidence will fall to CIOs.

Digital evidence is starting to become a decider in the success of legal actions in Ireland, but many companies here are still struggling to understand the issues involved and its implications for them.

This will be the subject of a two-day conference to be held in Dublin next month. The E-Discovery Ireland conference will highlight the importance of electronic records which organisers say are becoming central to a range of situations, from lawsuits and criminal cases, to employment disputes and government investigations.

E-discovery and legal cases

Ireland is not at the same level as the US, where there have already been high-profile cases setting precedents in electronic discovery, notably Zubulake vs UBS Warburg. “There have been no cases involving household names but there have been some in the High Court and the commercial courts,” said Owen O’Connor, managing director of Cernam and the conference organiser.

Even though exploit digital evidence is becoming a key factor in the success of legal actions, O’Connor claimed many Irish companies wouldn’t be able to comply with a request such as providing an employee’s emails from the past year. He pointed to a series of cases taken by residents against a developer of a housing estate in North Dublin where significant e-discovery shortfalls were found on both sides. “There’s a risk angle to all of this: how are companies going to handle this when they’re hit by it?”

Illustrating the growing importance of electronic evidence, last week the Central Bank issued a call for a framework agreement on IT forensics. It is seeking between three and five suppliers with expertise in e-discovery to help the bank’s Enforcement Directorate in identifying, preserving, collecting, processing, reviewing, analysing and producing electronically stored information in a forensically sound and secure manner.

The conference is intended to bridge the legal and technology issues, bringing together barristers and solicitors with CIOs and directors of IT. “IT are fairly heavily burdened with the digital evidence issue,” said O’Connor.

The e-discovery issue also affects Irish companies that are listed in the US, as they could be automatically hit with requests from the Stock Exchange or a regulator. In the same vein, Irish companies doing business in the UK will also be affected by that Government’s new bribery act and this subject will be covered at the conference.

The conference will also explore the state of the law in Ireland and will ask whether a change in legislation could benefit Ireland Inc by ensuring cases involving e-discovery move through the courts faster, with more predictable outcomes.

Currently in Ireland, there is no obligation to preserve digital evidence at the start of a case and O’Connor said there is still a debate to be had over where the balance falls between the need for justice and the need for business to function without additional administrative red tape.

E-Discovery Ireland 2011 conference

E-Discovery Ireland 2011 is being held in Dun Laoghaire, Co Dublin, on 6 October. More information is available at the conference website. Although the full lineup hasn’t been finalised, it is scheduled to include speakers from UK specialist lawyers Pinsent Mason and DLA Piper, the world’s largest legal firm.

Subjects to be covered include e-discovery in the Irish courts, experiences of e-discovery and digital evidence in Irish litigation, digital evidence in the criminal context, challenging digital evidence and managing complex e-discovery projects.

The company behind the conference, Cernam, specialises in gathering digital evidence from online sources. According to O’Connor, this is an increasing part of digital investigations given the amount of information people post in social networks, or on cloud computing services, like Google Docs.

Cernam is based at the NovaUCD business incubation facility and its first product, Capture and Preserve, is currently in beta testing ahead of a full launch anticipated later this year. The company is planning to hire more staff and take on external investment around the same time.

Gordon Smith was a contributor to Silicon Republic