13. Amendment of section 103 of the principal enactment

The court may, upon the receipt of an application under subsection (2), make an order as prayed for in such application, if –

the person or entity against whom an order is sought is likely to be a party to the proceeding to be instituted subsequently;

the applicant is also likely to be a party to such proceeding to be instituted subsequently;

the document in electronic form sought to be preserved, disclosed or produced is relevant to the matter in dispute in respect of which the proceedings are intended to be instituted and is in the possession or control of such respondent;

the duty to preserve, disclose or produce any electronic document upon the receipt of such order extends to the document in electronic form of which the applicant seeks preservation, disclosure or production, if proceedings had commenced against such person or entity;

preservation, disclosure or production of such document in electronic form is desirable in order to –

dispose the intended proceedings in a fair manner;

assist the dispute to be resolved without proceedings; or

save costs.

Any party to any proceeding pending before a court may, not less than forty-five days before the date first fixed for the pre-trial conference, make an application for an order to be made requiring any other party to such action to preserve, disclose or produce any relevant document in electronic form, as may be specified in such order.

Any party making an application under subsection (5) of this section shall –

describe with reasonable particularity each item or category of items to be preserved or disclosed or produced; and

specify the manner of preservation, disclosure or production and by whom such preservation, disclosure or production is to be performed.

A party who receives an order made under subsection (5) shall have a duty to comply therewith and in the event of non-compliance, the court may–

where the restoration of such document in electronic form is possible, order for the restoration of the same and award costs;

where the restoration of the document in electronic form is not possible and where the court is of the opinion that prejudice has been caused to the party making the application, due to the loss of such document and that non-complying party has acted with the intention of depriving the use of such document by the other party-

impose costs in a sum as may be deemed reasonable by the court; or

where the prejudice cause cannot be cured by way of costs, in case of a plaintiff, order to have his action dismissed for want of prosecution, and in case of a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not appeared and answered.

A party or person failing to comply with an order made under subsection (5) of this section shall not be entitled to produce any such document in electronic form in evidence on his behalf in such action, unless he satisfies the court that such electronic document relates only to his own title, or that he had some other sufficient cause for not complying with such order.

A party to any proceeding may make an application ex-parte by way of a petition supported by an affidavit, not less than forty-five days before the date fixed for pre-trial conference, for an order to be made requiring any person or entity who is not a party to such proceeding, to preserve, disclose, or produce any document in electronic form in the possession or control of such person or entity. The person or entity against whom such order is sought shall only be made the respondent in such application.

Upon receipt of an application under subsection (9), the court may make an order as prayed for in such application, if –

the document in electronic form of which the preservation, disclosure or production is sought is likely to support the case of the applicant or adversely affect the case of any party to such proceeding;

preservation, disclosure or production is necessary in order to disprove the claim in a fair manner or to save costs.

An order made under subsection (10) may-

specify the documents in electronic form which the respondent is required to preserve, disclose or produce;

if relevant, specify the time and place of preservation, disclosure or production to take place;

specify the format or formats in which document in electronic form is to be produced; and

require the respondent, when making preservation or disclosure, to specify the documents, if any, which are or not in his control or possession with reasons therefor.

Any person or entity who fails to comply with an order made under subsection (10), shall be guilty of the offence of contempt of court.

Where a person, entity or party from whom preservation, disclosure or production of a document is sought under subsection (2), (5) or (9)

the preservation, discovery or production sought is unreasonably cumulative, duplicative, disproportionate or excessive to the material facts of the case;

the requested document in electronic form can be obtained from any other source which is more convenient, less burdensome or less expensive;

the party seeking preservation, disclosure or production has had ample opportunity to obtain such document by discovery in the action; or

the requested document in electronic form is irrelevant or not proportionate to the issues in dispute or the party’s resources or the burden of expense of the proposed discovery outweighs the possible benefits and importance in resolving the issues:

Unless otherwise agreed or ordered, electronic copies of the disclosed documents in electronic form shall be produced –

in their native format;

in a manner which preserves metadata relating to the date of creation of each such document; and

organised and labeled in a manner that corresponds with the categories of such documents as requested.”; and