A judge of the High Court of Kogi State, Justice Alaba Omolaye-Ajileye, has called on heads of courts in the country to amend the rules of their courts to give room for the inclusion of electronic discovery.
Justice Omolaye-Ajileye made the call in a paper delivered on Wednesday in Abuja at a specialised training for prosecutors of environmental offences, which was jointly organised by the Nigerian Institute of Advanced Legal Studies and the National Environmental Standards and Regulations Enforcement Agency.
In the paper titled, ‘Digital Evidence and E-Discovery in Prosecuting Environmental Cases’, Justice Omolaye-Ajileye stressed the importance of electronic discovery in litigation involving electronically-stored information in the current age in facilitating effective administration of justice.
“In this digital age characterised by the proliferation of digital devices, which have facilitated the creation, storage and communication of electronic information of all kinds, electronic discovery has become an essential and inevitable fabric of the litigation processes around the world,” he stated.
According to the jurist, the emerging dominance of the information technology landscape will make the discovery of electronically-stored information an increasingly-important tool to determine the truth in cases before the courts.
He added that with e-discovery, litigants could retrieve information from a wide range of electronic sources, including, but not limited to social media accounts, messages, emails, documents or any other valuable data.
Justice Omolaye-Ajileye lamented that only the National Industrial Court had provisions guiding e-discovery in the court’s civil procedure rules, while what other courts had were provisions for the inspection and discovery of hardcopy documents, which he noted fell short of the requirements of e-discovery.
He considered this a great gap that demanded urgent attention, because “the primary duty of the judex, through its rules, is to provide an enabling environment that will facilitate and enhance the attainment of justice.”
Speaking on the forthcoming general elections, the judge added that the call for the incorporation of e-discovery in court rules had become more relevant and inevitable as the nation was approaching a period where the enabling law would provide for electronic storage and transmission of election results from polling units to collation centres.
He explained that just in the same way the extant rules of election petition tribunals provide for the inspection of election materials such as ballot papers and result sheets of the Independent National Electoral Commission, attention would be focused on how to access and retrieve electronically stored results transmitted by INEC to establish or test the veracity or otherwise of the results that might be announced, a process which litigants were entitled to access.
He, therefore, called on the appropriate authorities such as INEC, Federal High Court, and the Court of Appeal to begin to give careful and serious thought to issues of e-discovery as they might dominate electoral litigation.