knowledge 4 October 2022 |

Discovery – Court’s approach to commercial confidentiality applied to sensitive private or personal material

In this case,¹ the defendant had admitted negligently disclosing the plaintiff’s medical information to other family members. The plaintiff alleged that she had suffered damage because of the disclosure. The claim included an allegation that the relationship between the plaintiff and one family member had deteriorated as a result of the disclosure. The defendant sought discovery of communications between the plaintiff and that family member for a six month period either side of the disclosure.

The plaintiff declined to make discovery as she said that the material involved private persons who were not parties to the proceedings and trespassed egregiously upon the fundamental principles of the GDPR and the constitutional rights to privacy and family life.

Discovery was granted in the High Court and the plaintiff appealed.

Application of relevance and necessity tests

Giving judgment on the appeal, Collins J said that the documents sought were manifestly relevant to the pleadings and central to the claim being made. The specified time period covered by the order was not unreasonable.

Moving on to the necessity of discovery for disposing fairly of the cause or matter or for saving costs, Collins J said that the “default position should be that a document whose relevance has been established should be considered to be one whose production is necessary” or put another way, “the establishment of relevance will prima facie also establish necessity”. However, that default position was capable of being displaced “for a range of other reasons”, with the burden being on the requested party to identify grounds as to why the test of necessity had not been met.²

He said that discovery might not be necessary in the sense outlined above where the documents were likely to contain confidential material. Applications for discovery of confidential material (and for production or inspection of such material) warranted special scrutiny.³

Were the communications confidential?

The defendant disputed the confidentially of the communications but Collins J said that family members did not have to enter into a confidentiality agreement in order to have a reasonable expectation that private communications between them would not be disclosed. In any event, quite apart from confidentiality in the strict sense, discovery could also engage privacy, data and other rights.⁴

He said that none of these protections was absolute or unqualified. However, it did not follow from this, that in making decisions about discovery, courts should not give weight to the fact that the effect of the discovery sought would require the disclosure of private and personal information of one of the parties or third parties. Here, it seemed reasonable to suppose that the requested disclosure did include such information.

Applicable principles for discovery of sensitive private or personal information

Collins J said that the principles applicable to the discovery of confidential material set out in Ryan v Dengrove DAC⁵ also applied to the discovery of sensitive private or personal information. In summary, these required the competing interests for and against discovery to be weighed against each other. The court would consider factors such as the likely materiality of any given document to the issues likely to arise in the proceedings and the degree of confidentiality attaching to it. This assessment required the court to look beyond the threshold test of Peruvian Guano relevance and to adopt the approach that involved the least risk of injustice. Where there appeared to be any material risk that refusing discovery could give rise to unfairness, the court should generally err in favour of directing discovery (if necessary, on terms).

Decision of the court

Here the communications were likely to be highly material to the resolution of the proceedings. To refuse discovery would give rise to a real risk of unfairness to the defendant, as without access its capacity to defend the plaintiff’s claim effectively was likely to be significantly impaired. In those circumstances, “the interests of justice in bringing about a fair result of the proceedings” clearly weighed in favour of discovery notwithstanding that this could involve confidential or otherwise sensitive private or personal information relating to the plaintiff’s family member.

However, it was relevant that the plaintiff had advanced her case in a particular way and had brought that particular family relationship into the proceedings and so she “by implication necessarily waives the right of privacy which [she] would otherwise enjoy in relation to [that relationship]”.⁶

This did not mean that a personal injuries plaintiff waived all rights of privacy. Every case was different. It was the particular manner in which the claim was advanced here that justified the discovery. It was also relevant that the plaintiff could have but did not lead direct evidence on the content of the communications and had not identified specific and particularly sensitive information liable to disclosure in the event that she was directed to make discovery.

Restrictions on circulation and use of material

Having granted discovery, Collins J went on to impose certain restrictions on the circulation and use of any material discovered in order to strike an appropriate balance between the competing interests weighing for and against discovery here.

He pointed out that the defendant was subject to the normal implied undertaking not to use any material discovered other than for the purposes of the proceedings. However, in addition, he said that a court could require this undertaking to be given expressly. He also noted that the court could impose additional restrictions in the context of the discovery or production of commercially confidential material.⁷ Such restrictions could extend to excluding disclosure to the other party, at least in the first instance, through the creation of a “confidentiality ring”.⁸ In his view, there was no reason why a court should not have the same powers in the context of the discovery or production of sensitive personal or private information. He imposed this type of restriction here.

Comment

This is an interesting case highlighting the potential intersection of discovery and privacy. This decision makes it clear that the additional protection of a confidentiality ring, previously seen mostly in competition law disputes, is available not just to commercial documents that must be discovered but also to documents containing sensitive personal data.