Any party involved in discovery must explain the procedures adopted by them to retrieve potentially lost or deleted documents. Failure to do so may result in the proceedings being dismissed.

Background of case

Former presidential candidate Sean Gallagher initiated High Court proceedings against RTÉ arising out of its conduct of a televised debate. Mr Gallagher alleges that the reference by the moderator to a tweet from a bogus account was made with the express purpose of undermining his credibility and had the improper aim of altering the outcome of the election.

As part of those proceedings, RTÉ sought discovery of a number of categories of documents from Mr Gallagher which included documents relating to polls or research carried out by him concerning his prospects of electoral success, as well as all documents which recorded or referred to statements made by him during the election campaign.

Deficiency of discovery provided

Mr Gallagher swore two affidavits of discovery, both of which RTÉ believed were grossly inadequate. As a result of these deficiencies, RTÉ brought an application to strike out Mr Gallagher’s claim. The deficient discovery was as follows:

  • Failure to list privileged documents: Even though a party does not have to discover legally privileged documents, it must list them in the affidavit with a sufficient description so that an opponent can challenge an assertion of privilege. Mr Gallagher merely referred to “miscellaneous privileged solicitor-client correspondence” in his affidavit.
  • Lapsed email accounts: Mr Gallagher allowed a number of potentially relevant gmail accounts operated by his campaign team to lapse without being backed up. By the time he contacted Google seeking to have the accounts retrieved, he was advised that the documents were not recoverable.
  • Edited documents: Many of the documents discovered were not produced in their original format or were edited. Mr Gallagher argued that he did not engage in editing but rather his campaign team adapted or modified template documents for the purposes of responding to media queries. However, he failed to provide any metadata (for example the date of inception of each document and the date of its modification).
  • Good Practice Discovery Guide: The discovery exercise undertaken by Mr Gallagher fell far short of the Good Practice Discovery Guide published by the Commercial Litigation Association of Ireland (CLAI). Mr Gallagher argued that this was not a commercial case and as a result, this Guide should not carry any weight. However, the court felt that it wasn’t unreasonable to expect that an “appropriately rigorous approach should be taken to the proper discovery of electronically stored information”.

Decision of the High Court

Keane J found that the procedure used by Mr Gallagher to comply with his discovery obligations fell short of the appropriate standard for identifying relevant documents, which is an essential component of discovery compliance. Even though Mr Gallagher had sworn two affidavits of discovery, he failed to swear them in the appropriate form, failed to make discovery of relevant metadata and failed to make proper discovery of all documents in his possession. While the court found his failure was not wilful, it was negligent.

To address the deficiency of his discovery, Mr Gallagher proposed the appointment of an independent IT expert (to be agreed between the parties) to review and report upon his discovery. The court acceded to this suggestion and ordered the appointment of an independent expert to conduct a comprehensive review of the discovery to be made in accordance with the CLAI’s Good Practice Discovery Guide. Furthermore, Mr Gallagher was directed to identify a list of the custodians who may hold relevant documents and the devices upon which such documents may be held so the expert can conduct his review.

What can be learned from this case?

This case is a stark reminder of the importance of understanding the discovery process and the clear implications for failing to adhere to the standards required. While discovery can be an expensive, protracted and complex exercise, some early planning is crucial to avoid the common pitfalls. This planning includes identifying the relevant custodians and IT devices from the outset.

Learn more: read our top tips on making discovery

For more on the dos and don’ts of making discovery, you can read our previous article here.