Watch your step: the digital footprints that can walk your business into trouble

In a month when a Supreme Court judge ordered Seán Quinn’s family members to surrender passwords to their personal email accounts and the unfolding Petraeus affair at the CIA hinged on webmail messages, it’s hard to escape the conclusion that digital footprints leave a heavy trace.

Electronic discovery, or e-discovery, is the digital equivalent of the legal process whereby relevant documents are brought to both sides ahead of a case.

“In the last three years, e-discovery has really mushroomed as an issue for practitioners, and not just in litigation. It’s also in the investigation side for all sorts of corporate clients,” she says.

Harty would not comment on the Quinn case but says it makes sense to consider electronic sources of evidence. “There is no doubt that people will commit things to email that they would never put in a formal letter and, for that reason, discovery is a very fruitful way of identifying vulnerabilities from a litigator’s perspective.”

A survey of 14 Irish legal firms by Ernst Young last year found that most cases now involve electronic evidence, but it is often not preserved in a forensically sound way – risking its admissibility – or else it is not collected efficiently, which risks lengthening the time and cost of discovery.

Many law firms now outsource the process of gathering digital evidence to specialist consultancies with the forensic skills and technology to tackle large volumes of data – to determine accurately when a document was created or an email sent, or to retrieve material even if it appears to have been deleted.

Larry Fenelon, managing partner with Leman Solicitors, says discovery can take up to half of the time in an average commercial court case.

“If you’re not prepared for discovery in a high-level dispute, your prospects of success in your defence or your claim are severely diminished,” he says.

Electronic evidence can be the difference between winning and losing – jurors interviewed after this summer’s Apple v Samsung court case said the contents of internal Samsung emails helped to swing the case in Apple’s favour.

To address what’s proving to be a complex area, six industry experts under the guidance of Mr Justice Frank Clarke are preparing a “good practice guide to electronic discovery in Ireland” for publication next year.

The guide will be aimed primarily at legal professionals, but observers say many Irish businesses would not be ready for e-discovery today.