The Discovery Process

MissJustice

I am taking my employer to the High Court, and the summons have already being served to them, and the litigtion process is well underway.

I am wondering what is involved with the Discovery Process? Will my legal team be entitled to access the work email accounts of my work colleagues? Would my solicitor be entitled to enter my place of work to investigate the work I had to do in the past?

NoQuarter

There are procedures in place for everything you asked. It is possible and the application to do so is made by your legal team if you so wish.

MissJustice

NoQuarter wrote: »

There are procedures in place for everything you asked. It is possible and the application to do so is made by your legal team if you so wish.

Thats great, and I certainly will be asking my legal team to do all these things above. It will be excellent evidence.

Thanks

NoQuarter

You will need their advice because discovery can be complicated. Documents can be refused inspection because they claim they are privileged. If that happens, your legal team can seek to force the company to show the documents.

Have a chat with the legal team as its quite complex.

MissJustice

NoQuarter wrote: »

You will need their advice because discovery can be complicated. Documents can be refused inspection because they claim they are privileged. If that happens, your legal team can seek to force the company to show the documents.

Have a chat with the legal team as its quite complex.

A good while before I got a legal team, and issued proceedings, I asked for information on my file, and they stated in writing it "Didn't exist", so I hope with Discovery I can get access to these documents, as my employer were telling lies.

Is a court order needed at the start of the Discovery process, or is a court order only necessary should myy employer claim the documents are privileged?

Thanks so much

Marcusm

NoQuarter wrote: »

You will need their advice because discovery can be complicated. Documents can be refused inspection because they claim they are privileged. If that happens, your legal team can seek to force the company to show the documents.

Have a chat with the legal team as its quite complex.

Make sure you get a good technical rather than process based legal team. Legal professional privilege is not as broad as somewhere believe and internal communications not including a lawyer and prior tO contemPlation of litigation may not be as protected by LPP/LAP/LP as many ill educated lawyers may believe. Additionally, emails even when not accessible by the relevant employee are likely to have been archived and available to IT staff.

I speak not as a lawyer but as a client who has had to assert LPP and be acquainted with he limitations.

NoQuarter

First a simple letter should be sent asking for discovery. If that doesnt work you seek discovery by court order. In this application you have to state precisely the categories of materials you are looking for.

Then the other side will get back to you with a list of what they have/dont have and what they considered privileged.

Then you apply to the court to have them inspected. This can involve going to your place of work and accessing their systems.

The court rules are set out here: http://www.courts.ie/rules.nsf/8652fb610b0b37a980256db700399507/cc15c27a9413d3a980256d2b0046b3db?OpenDocument (for High Court)

Make sure to note the changes to section 12. Just click on the 3 links near the top of that page. They are 3 statutory instruments that changed the process.

MissJustice

Thank you both very much for this information, its very helpful

benway

You will only be entitled to those documents that are "really and genuinely" necessary to prove the allegations made in your pleadings, per Taylor -v- Clonmel Healthcare.

Documentation that doesn't go towards proving a pleaded claim should not be included, nor should discovery be ordered if there's an alternative means of proving the claim, like oral evidence.

You should note that documents which "didn't exist" previously, are unlikely to surface in the Affidavit of Discovery. If you're absolutely 100% sure that these documents exist, but are being concealed, there are steps you can take once discovery has been ordered - if they fall within the scope of the order and are not included in the affidavit.

You would want to be certain, though, and in a position to back it up. You're entitled to a full copy of your personnel file without an order of the court in any event.

Marcusm

OP

Has your legal team made a Data Protection Act request for electronic records? This might turn up the relevant electronic records without having to make a discOvery application.

MissJustice

Marcusm wrote: »

OP

Has your legal team made a Data Protection Act request for electronic records? This might turn up the relevant electronic records without having to make a discOvery application.

I made this request myself in the past, and they still wouldn't provide me with letters that are on my personal file, corrupt as can be.

My legal team will deal with them