William Fry: Discovery – time to engage?

William Fry: Discovery – time to engage?

Adele Hall and
Leeane Grace

William Fry associates Adele Hall and Leeane Grace discuss developments in discovery.

The importance of the discovery process during litigation was recently emphasised by the Supreme Court in overturning the Court of Appeal’s decision in Tobin v Minister for Defence [2019] IESC 57 which we discussed previously here and here.

The Supreme Court recently turned its attention to the voluntary stage of discovery in Tweedswood Ltd v Power [2019] IESC 93.

Conduct of parties at voluntary discovery stage

The Supreme Court in Tweedswood found that it followed from Tobin and previous decisions that the parties should attempt to agree reasonable discovery in a way that is appropriate and constructive. Clarke CJ. for the Supreme Court held that a trial judge may have regard to the approach of the parties at the voluntary stage of discovery in order to ascertain the proper manner in which to proceed. The Court noted that in extreme cases it may be open to a trial judge to refuse to order discovery entirely or on the full terms sought.

However, Clarke CJ. did not go so far as to say a trial judge must consider the approach of the parties in all discovery applications but rather that it will be a matter for the trial judge to consider what is the best route to achieve a cost-effective discovery. The Supreme Court reaffirmed that appellate courts should still afford a significant margin of appreciation to trial judges when they are considering the best way for discovery to proceed.

Redaction of commercially sensitive information

In Courtney v Ocm Emru Debtco Dac & anor [2019] IEHC 160, a claim which related to a transfer of the plaintiff’s loans, the defendants provided heavily redacted documents in discovery on the basis that nonredacted versions of the documents would reveal commercially sensitive information regarding pricing and the security provided.

The plaintiff sought to inspect the documents and the defendants refused stating that the relevant documents contained commercially sensitive and/or confidential information which they argued was not necessary for the fair disposal of the matter. The High Court found, after reviewing the documents, that the redacted portions related to the price of the transfer and were therefore relevant to the plaintiff’s claim. Haughton J. granted disclosure of less redacted versions of the documents, subject to various undertakings, on the basis that consideration of the documents in largely unredacted form was necessary to enable the reader to properly understand their operation. The undertakings limited inspection to the plaintiff and her legal advisors and prevented Ms Courtney from mentioning the information in open court or in documents.

This imposition of this sort of “confidentiality ring” is similar to a previous requirement of the High Court in Goode Concrete v CRH PLC & Others [2017] IEHC 534. It can be a useful tool to protect confidential information when ordered by a court.

Practical Tips

As we previously advised after the decision in Tobin these cases serve as a warning to parties in litigation to be aware of how you plead your case so that you are only seeking relevant and necessary information in discovery. Following on from these recent decisions, parties in litigation should be aware that:

  1. While other methods such as interrogatories should be considered, discovery remains an important part of litigation.
  2. Ensure requests for discovery are not overbroad. Avoid the “kitchen sink” approach.
  3. Be aware that the approach of the parties at the voluntary stage of discovery can be taken into account by a court when considering discovery applications. Engage appropriately and constructively.
  4. Where confidentially sensitive information is redacted, provide comprehensive reasons why the redaction is necessary and why the information is not relevant.
William Fry: Discovery – time to engage?

  • Adele Hall and Leeane Grace are associates in the litigation and dispute resolution department at William Fry.
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