Courts will not micromanage discovery in complex commercial litigation. Proportionality is key in discovery.

A recent High Court judgment emphasises that litigation is not an exercise in perfection. It reiterates that a proportionate approach will be taken to discovery. The court will require egregious default before it will strike out pleadings for failure to comply with discovery obligations.

Discovery in Ireland requires litigants to disclose both harmful and helpful documents to the other side which are relevant and necessary to the litigation. This is to ensure that pertinent evidence which is not legally privileged comes to light.

In recent years, there has been an enormous growth in the amount of electronic material generated by businesses and individuals which may be susceptible to discovery. Parties are faced with the dilemma that to comply with their discovery obligations they will incur disproportionate costs to review masses of electronic material which in reality may have no material value to their case. This has increasingly brought  the concept of proportionality to the forefront when the courts are considering whether it is necessary that documents be discovered. The High Court has recently emphasised again1 that discovery must be proportionate. This echoes earlier judgments in this area.

In this case, the plaintiffs had sought to strike out the defence on the basis of the defendant’s alleged failure to comply with discovery. One complaint related to the non-disclosure of audio calls. The defendant had trawled a large volume of relevant custodians’ calls and had made discovery of a small number of relevant calls. This had involved considerable expense and had yielded little relevant material. The plaintiffs asserted that the defendant had an obligation to search all audio records to ensure that all relevant calls were discovered. The court noted that evidence as to the viability of electronic audio searching was directly contradictory and held that it would now be disproportionate to compel discovery of the remaining audio tapes given the vast time and expense involved and the minimal return likely. While it could not be ruled out that further relevant material existed, the plaintiff could not objectively identify any evidence to suggest that this would be the case.

The court also made some interesting comments in relation to password  protected emails covered by the discovery order. The employee who had created these emails had left the defendant’s employment but had not provided the password to access them. The court acknowledged that the defendant had made extensive but ultimately unsuccessful efforts to access  the emails. It accepted that the defendant had been unable to provide discovery of these documents. It held that while these documents were within the defendant’s possession, they were not within its procurement.

Useful Guidance

Importantly, the court noted that litigation was not an exercise in perfection and that many trials had taken place in the absence of perfect discovery or major relevant witnesses. Errors occur in discovery in complex commercial litigation. However, even if a party had been guilty of some default, the court would consider whether that party took appropriate steps to rectify the default. The court would have to be satisfied that this had been egregious default before it would strike out a pleading. The court would also consider whether there had been any prejudice to

the other side. The court emphasised that it would not micromanage discovery in complex commercial litigation. Where it was satisfied that a party had and would do its best to comply with their discovery obligations, the opposing party was not entitled to review the discovery exercise or to seek to micromanage the process either directly or through the court.

Comment

This judgment recognises the inevitable tension in discovery; ensuring a conscientious and complete review and production of documentation on the one hand balanced with time and cost on the other. The Irish courts continue to recognise that a balance must be struck. While parties should do their utmost to comply with

their discovery obligations, it is recognised that “[t]he public interest in the proper administration of justice is not confined to the relentless search for perfect truth.” 2