Discovery when you’re ‘David’

16/05/2018

Smaller parties in large-scale discovery cases need to choose their battles wisely, writes Ben Clarke in the April Gazette.

Choosing your battles

Practitioners and litigants understandably often adopt a tough stance when facing down larger parties, such as State bodies or financial institutions, and the huge resources at their disposal. This is all the more true in the context of the various pre-trial procedures applicable in large cases. There is no better example of this than in motions for discovery.

In the context of discovery, many parties can choose the wrong issues to ‘get tough’ about, and perhaps misapprehend what constitutes a victory. Adopting a tough stance when facing up against larger parties can be understandable, but in motions for discovery, it’s often wise to ‘box clever’, writes Ben Clarke.

A practical approach

Clarke, a Dublin-based barrister, urges practitioners involved in large-scale discovery to pay attention to the Good Practice Discovery Guide, published by the Commercial Litigation Association of Ireland (CLAI). He also recommends considering the recent CLAI discussion document entitled Possible Reforms to the Rules of the Superior Courts to Reduce the Time and Cost of Discovery. These documents will help practitioners to understand the various issues facing the courts in the context of discovery projects involving large amounts of electronically stored information (ESI).

In practical terms, Clarke adds, after initial processing of electronically stored information, it may be necessary to further narrow the universe of documents through technology assisted review. Writing in the Gazette, Clarke discusses how a smaller party can conserve resources and achieve a positive result with a practical, efficient approach to discovery.

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