knowledge 23 November 2022 |

High Court unhappy with discovery shortcuts

In this case,¹ the plaintiff claimed that he had suffered Parkinson’s Disease following sustained workplace exposure to a chemical in the 1980s. He brought proceedings against his Irish employer and its U.S. parent company. The defendants swore an affidavit of discovery in the proceedings but the plaintiff was unhappy with its contents and sought an order striking out the defence for failure to comply with discovery. 

Deficiencies in discovery

Heslin J identified a series of flaws in how the defendants carried out the discovery, including:

• they confined their searches to specific years - the discovery order had no time limit;

• they incorrectly narrowed their searches both geographically and by subject matter;

• they had not checked for paper documents;

• they made inadequate enquiries with third parties;

• they relied on interviews to identify documents rather than carrying out  adequate searches;

• they wrongly concluded that they had done enough searching;

• they failed to do a  proper affidavit of discovery.

The judge observed that a litigant cannot seek to shirk their discovery obligations because they conclude that it will be onerous or expensive to do adequate searches.

Also, the judge said that the defendant’s affidavit evidence had not explained adequately what searches had been done. They had submitted an unsworn sheet with details of searches, which was not susceptible to cross-examination.

No bad faith

The judge concluded that the defendants’ approach to discovery had been negligent but that their deponent, the HR director, had not acted in bad faith. The HR director had no first-hand knowledge of the matters in her affidavit and relied on information supplied by others. While the judge was not suggesting that any lesser standard applied where a non-lawyer swore a discovery affidavit, it was relevant to a finding that she did not act in bad faith.

No strike out

The judge declined to strike out the defence and instead, he ordered further and better discovery. He said that there was no finding of bad faith and the defendants were prepared to make additional discovery, if ordered. This weighed in favour of a fair trial remaining possible. The evidence suggested that further documents existed, that if properly searched for, would be discovered.

The solicitor’s duties

The judge, a former solicitor, also set out a solicitor’s duties in the discovery process and their “vital supervisory role” as officers of the court. While the obligation to make discovery did not rest on the solicitor, they played a vital role in ensuring that a party making discovery appreciated the scope of that obligation and acted accordingly.

Conclusion

Parties from whom wide discovery is sought should seek to narrow the scope of the discovery. They can do this in negotiations or in submissions to the court before the order is made. They can also ask the court to narrow the scope of a discovery order if, after commencing their searches and reviews, they identify persuasive reasons to show that the order is too wide and impracticable. However, they may not unjustifiably limit searches and inquiries without reference to the court and the other party.