Discovery

The disclosure or discovery of documents forms a central part of litigation in Ireland. Its purpose is to ensure that the opposing parties in a case have sight before trial commences the documents relevant to the proceedings which the other party has within their power, possession or procurement. As soon as the parties become aware of the possibility of litigation, they are under an obligation to the court to preserve relevant evidence, including electronic data and other documents. The Rules of the Superior Courts (the Rules) set out the guidelines governing discovery in High Court proceedings. Lawyers should advise clients to put in place a ‘litigation hold’ once proceedings are anticipated.

When does discovery take place?

After all the pleadings have been exchanged, the proceedings generally enter the discovery stage. It is usual for each side to write to each other and, by reference to matters in issue in the proceedings, seek categories of documentation. These are documents that can properly be said to be relevant and necessary to determine disputed issues. It is usual for discovery requests to recite specific pleas made by each side in justifying the categories sought.

Voluntary discovery

Before an application is made to the court for discovery, a solicitor’s letter should be sent seeking voluntary discovery. If the party receiving the letter wishes to make voluntary discovery, they should comply with the discovery as if it had been ordered by the High Court.

Court application for compulsory discovery

Where the other party refuses, fails or neglects to make voluntary discovery, then an application can be made to the Court for compulsory discovery. The application is made by way of motion on notice to the party from which the discovery is sought. The judge hearing the motion has a broad discretion and may make an order for discovery in the terms of the notice of motion, or amended terms. He may also elect to refuse/adjourn the application.

The rules impose a clear obligation on parties to pinpoint the document or categories of documents required and the reasons they are required. Discovery will not be ordered to enable a party to frame a new case or “fish” for evidence. In addition, the categories must be relevant to the pleaded issues in dispute.

Applicable legal principles:

• Relevance

An applicant must establish the document sought relates to a matter in dispute in the proceedings. The classic test to determine relevance is whether:

• It is reasonable to suppose that it contains information which may either directly or indirectly enable the party seeking discovery either to advance his own case or damage his opponent's case, or
• It is a document which may fairly lead him to a train of enquiry which may have either of those two consequences

The scope of discovery is determined by reference to the pleadings. The Court will take into account the manner in which a case is pleaded for the purposes of determining relevance.

• Necessity

An order for discovery shall not be made if the Court is of the opinion that it is not necessary for disposing fairly of the cause or matter. The term “necessary” is read disjunctively with “relevance” so discovery must not only be relevant, it must also be necessary. The central issue here is one of “litigious advantage”.

The initial burden of establishing that discovery of any particular category of document is “necessary” for the fair and just resolution of a case, at a proportionate cost, rests with the party requesting discovery. The establishment of relevance will automatically establish necessity. However, that default position can be argued if the party refusing discovery on grounds that it is excessive or burdensome can justify their refusal. They will also be required to suggest any alternative means of achieving the same ends.

• Proportionality

There is no mention in the rules of the concept of proportionality. However, avoiding excessive burdens on parties engaged in wide-ranging discovery orders has become an additional factor considered by the Courts. Where a party resists discovery on proportionality grounds, they must produce evidence regarding precisely what will be involved in making the discovery sought. If an order for discovery turns out to be disproportionate or unreasonable, an application to revisit the scope of the order may be made.

• Alternative means of obtaining the relevant information

While there is no mention in the rules to “alternative means of proof”, our evolving case law has seen the Courts consider whether there is an alternative method for ascertaining the information required prior to discovery. This approach aims to curtail the extent of discovery orders.

Documents in the possession, power or procurement of a party

• What is a document?

There is no set definition of a “document”. However, in broad terms, it constitutes anything in which information of any description is recorded. It, therefore, includes any document in writing or otherwise. These can include for example maps, drawings, graphs, photographs, tapes as well as many other classifications or means of recording information. It is open to the requesting party to define a ‘document’ for the purpose of the request.

• What does “in your possession, power or procurement” mean?

The rules state that a party may be ordered to ‘make discovery’ of or to produce relevant documents which are or have been in his or her possession, power or procurement. “Possession” is not confined to physical possession and includes documents held by an agent or a service provider on the party’s behalf. It can include documents held temporarily and those held jointly with another or others, such as a director holding company documents.

“Power” means a presently enforceable right to obtain the document from whoever actually holds the document, without the need to obtain the consent of anyone else. This, for example, includes documents held by your bank, such as bank statements. “Procurement” arises only where it is likely that the document in question would be given voluntarily if requested. Normally, a party will be under an obligation to seek a document of this description. However, where the document is not provided, it is unlikely to be discoverable.

The affidavit of discovery

Once the categories of discovery have been finalised, whether by agreement or by way of court order, discovery will need to be prepared and completed by both sides. This is done through the swearing of affidavits of discovery. An affidavit is a sworn statement. This involves the affidavit explaining what was done to search for, review and compile the discovery. This is then required to be listed in schedules to the affidavit. All relevant, non-privileged, documents will then be exchanged between the parties.

The affidavit will state the documents over which the relevant party has possession, power or procurement. It will have two schedules.

• Schedule 1 Part A lists the documents which will be produced to the other side. Schedule 1 Part B lists the documents over which privilege is claimed and, therefore, those documents that will not be produced. If there is a dispute about whether privilege attaches to documents over which the claim is made, the court can make a determination following an inspection of the documents.
• Schedule 2 lists the documents which a party once had but no longer has. The affidavit must be made by a person who has knowledge of the documents listed and an understanding of how documents have been preserved since litigation was commenced. He or she may later be cross-examined in court as regarding the contents of the affidavit.

Privilege

If a document is privileged, it does not need to be provided to the other side, but it should still be ‘discovered’ by being listed in the affidavit of discovery. There is a special section of an affidavit of discovery where this material should be listed, with sufficient detail about the document being provided to enable the other side to determine if a challenge to privilege is merited. There are various types of privilege recognised by Irish law, the most commonly asserted being legal professional privilege. Legal professional privilege involves two different types of privilege – being legal advice privilege and litigation privilege. Each involve different tests.

Further and better discovery

Where it is apparent from the discovery made or the explanation provided in the affidavit itself that documents are omitted from the affidavit of discovery, the courts may order further and better discovery. The first step is to write to the other party pointing out the deficiencies in the discovery and requesting that a new supplemental affidavit be sworn. If the request for voluntary discovery fails, the next step is to issue a motion for further and better discovery.

Failure to make discovery

The rules provide that if any party fails to comply with an order for discovery, they may be liable for contempt. However, the more usual course of action is for one party to seek to strike out the other’s statement of claim or defence. The court will almost always order an extension of time for the making of discovery. However, where there has been persistent default, the other side may seek an automatic order. This class of order provides that at the expiration of a specified period, the claim or defence will be struck out automatically unless discovery or proper discovery has been made. These orders are, however, exceptional.

Non-party discovery

Discovery is normally made between the parties. However, discovery can also be sought against a person or body not involved in the proceedings. This is known as non-party discovery. Non-party discovery must be firstly sought voluntarily. If agreement cannot be reached an application can be made to the court for an order. This will require a notice of motion and grounding affidavit. Typically, if the order is granted and the non-party is required to make discovery, it will be for the party seeking that discovery to bear the costs involved.

For more information and expert advice on discovery, contact a member of our Dispute Resolution team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.