The High Court (Court) recently examined the need to reform Ireland's discovery regime within a larger commercial conflict.
In this case, it was submitted that 1.78m documents had to be searched for discovery purposes. The plaintiff argued that, based on current discovery rules, it was entitled to an order requiring the defendant to discover documents even though it already had or should have those relevant documents in its possession. The financial burden of discovery was highlighted, with estimates suggesting that discovery alone could cost up to €250,000.
Interpretation of Relevance and Necessity
The Court identified the key issue as whether the documents, where clearly relevant to the dispute, are necessary for discovery under current discovery law.
The applicable law, which dates back to an 1882 decision, requires documents to be both relevant and necessary for the fair disposal of the case. A relevant document is presumed to be necessary. While it was agreed that the documents were relevant, the parties disputed the necessity element. It was not disputed that where documents are relevant, the burden falls on the party resisting the discovery to establish that the documents are not necessary to be discovered either because they are confidential or because their discovery would be onerous
Justice Twomey stated that the term 'necessary' should be given its plain ordinary meaning as simply needing a document. In these circumstances, if one party already has or should have a document because it was sent to them by the other party, it cannot be considered 'necessary' for discovery to be made of that document.
Twomey J stated that although a document's relevance generally implies its necessity for production, this does not render the term 'necessary' meaningless. The requirement that documents be 'necessary' is a distinct condition that must be fulfilled, even though it is presumed to be met if the documents are relevant. This presumption can be rebutted, with the most logical rebuttal being that the documents are already in the possession of the party seeking discovery.
The Discovery 'Monster'
Twomey J also considered the Report of the Review Group of the Administration of Justice 30 October 2020 (Kelly Report), highlighting the continued use of 19th-century legal techniques in discovery rules. The Kelly Report found these rules unsuitable for today's electronic data and information era, operating as an 'obstruction to the administration of justice.'
Twomey J referenced several cases calling for reform of the discovery system and emphasised that the present case provides an opportunity to highlight the 'monster' that discovery has become and the pressing need for action by the Oireachtas in this area.
Conclusion
The judgment advances efforts calling for a reform in the discovery process in light of the challenges posed by the sheer volume of electronic data in modern litigation. It emphasises the importance of balancing the relevance of documents with their necessity in the discovery process to avoid imposing unnecessary burdens on the parties involved.
Contributed by Caitlin Devitt.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
