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Electronic Disclosure in Bermuda and the Cayman Islands: A Voyage of Discovery

The Rules of the Supreme Court of Bermuda 1985 and the Grand Court Rules of the Cayman Islands 1995 do not yet contain any detailed rules, practice directions, or guidance specifically dealing with electronic discovery in civil and commercial litigation (as opposed to discovery of documents more generally under Order 24 and Order 29).

There is, in particular, no local electronic disclosure protocol of the sort contained in CPR Practice Direction 31B in England and Wales, Practice Direction 3 in Singapore, Practice Direction SL1.2 in Hong Kong, Practice Direction RC17/08 in Jersey, or the “Technology and the Court” General Practice Note in Australia.

In the absence of a specific local Practice Direction , the Supreme Court of Bermuda and the Grand Court of the Cayman Islands clearly have the jurisdiction to give tailored directions to the parties, on an ad hoc basis, as to the manner in which they should conduct their discovery exercises (including electronic discovery). The Courts also have the inherent jurisdiction to decide how best to enforce compliance with those discovery obligations, in the event of non-compliance.

The Court’s power to provide tailored, or bespoke, discovery directions to the parties before the discovery exercise is conducted is part of the Court’s inherent jurisdiction to regulate the conduct of civil litigation. This power is only qualified to the limited extent that the exercise of any particular power might be in direct contravention of any other primary or secondary legislation, or other specific provisions of the rules, relating, for example, to issues of legal professional privilege(see Moore v. Assignment Courier Ltd [1977], Langley v. North West Water Authority [1991], Raja v. Van Hoogstraten [2009], and Al Rawi v. Security Service [2012], per Lord Dyson at paragraphs 18 and 20).

Although there is no prescribed form of electronic discovery protocol in either the Cayman Islands or Bermuda, it is common practice for parties to substantial litigation to agree, through their attorneys, a detailed protocol, which is often then appended to a Court Order for directions at a relatively early stage in proceedings. This practice can avoid unnecessary interlocutory skirmishes at a later date.

 

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Electronic Disclosure in Bermuda and the Cayman Islands: A Voyage of Discovery

 


Alex Potts QC
Partner, Head of Cayman Islands Litigation & Restructuring

Cayman Islands   +1 345 814 7394


Jonathon Milne
Partner

Cayman Islands   +1 345 814 7797
Mobile  +1 345 925 2952


Christian R. Luthi
Director and Chairman

Bermuda   +1 441 298 7814


Ben Adamson
Director

Bermuda   +1 441 298 7824


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