Supreme Court Decision Addresses Potentially Onerous Discovery Obligations
8 August 2019
Despite ongoing attempts to control costs and increase efficiency in the Irish legal system, litigation remains a costly business. One issue which can have a significant effect on the viability of sustaining proceedings is the cost of carrying out a discovery exercise. The decision of the Supreme Court in the case of Tobin – v- Minister for Defence  IESC 57 considers the problems associated with the potentially disproportionate burden and onerous obligations imposed on parties to litigation by discovery.
The plaintiff/appellant, Mr Tobin, was employed as an apprentice mechanic in the Air Corps. He alleged that during the course of his employment he had been exposed to dangerous chemicals and solvents, to include being doused with chemicals on one occasion by other Air Corps personnel.
Mr Tobin commenced High Court Personal Injuries proceedings against the State in 2014. In the course of those proceedings he sought extensive discovery from the State of 15 separate categories of documents. The State opposed the discovery request on the basis that it would take ten members of staff approximately 220 hours to locate, review and categorise the documents, many of which were created some thirty years previous. It argued that it would be disproportionate, burdensome and excessive. The State proposed that Mr Tobin issue interrogatories (a list of questions) requesting the State to confirm whether the chemicals identified in the pleadings were used by the Air Corps during the specified time period.
The High Court held that an Order for discovery of the categories sought was necessary for, and relevant to, the fair disposal of Mr Tobin’s claim, notwithstanding the significant degree of work which would be required to comply with it. The High Court also held that the use of interrogatories would be inappropriate in circumstances where the State had denied that Mr Tobin had been exposed to dangerous chemicals, as alleged, and put him on full proof of this allegation.
The State appealed the High Court’s Order granting discovery to the Court of Appeal. In the Court of Appeal, Hogan J. held that “it behoves courts to seek out and to contemplate alternative solutions to discovery orders”. The Court of Appeal overruled the High Court’s Order and held that discovery should not be ordered unless all other avenues are exhausted and have shown to be inadequate. The principle that discovery should be refused where the information sought was otherwise available by means of interrogatories was said to be “fundamental”.
This decision appears to have been made in contemplation of what Hogan J. described as the “crisis” now facing the courts regarding the breadth of discovery orders and the burdens which modern technological advancements have placed on the discovery process.
Mr Tobin appealed the decision to the Supreme Court who, on granting leave to appeal, determined that: “an issue of general public importance has been identified which concerns the proper overall approach to discovery where the burden of complying with discovery is likely to be significant.”
In overturning the decision of the Court of Appeal, the Chief Justice held that:“A court will only order a party to make discovery if it is satisfied that the documents sought are both relevant and necessary for the fair disposal of the case or to save costs. The Chief Justice added “in an effort to limit the burdens, costs and delays incurred by orders for discovery in modern practice, two further considerations have sometimes been proposed; one being that of proportionality and the other being the suggestion that alternative, more efficient methods of disclosure should first be pursued”.
The Chief Justice held that the key criteria remain those of relevance and necessity and that a document whose relevance has been established should be considered to be one whose production is necessary. However, if it can be demonstrated that compliance would be particularly burdensome a court should consider the following factors when deciding whether discovery is truly “necessary”:-
- The extent of the burden which compliance is likely to place on the party making the discovery;
- The extent to which it might reasonably be expected that the documentation concerned would play a reasonably important role in the proper resolution of the proceedings;
- The extent to which there may be other means of achieving the same end at a reduced cost.
The Chief Justice noted that where it was suggested that the discovery of relevant documents was not necessary, the burden lay on the requested party to put forward reasons as to why the test of necessity has not been met and to suggest any alternative means of obtaining the relevant information which are said to be less burdensome but potentially equally effective. The requesting party does not have to establish that they have exhausted all other procedures available to establish relevant facts before discovery could be sought.The Chief Justice also held that it is appropriate for a court to take into account the manner in which the case is pleaded, not only for determining relevance, but also to assess the extent to which a party who objects to making discovery, on the grounds it is excessively burdensome, has contributed to that situation by the manner in which they have pleaded their case.
In the present case, the Supreme Court held that the issues surrounding exposure to chemicals were central to Mr Tobin’s case and he was entitled to discovery of the relevant information. It held the discovery burden on the State was “moderate” and emphasised that the State had put Mr Tobin on proof of his entire claim. If the State knew the answers to the proposed interrogatories it was hard to see why appropriate admissions could not have been made already. However, if the State did not already have this information a significant amount of research would be necessary to respond to interrogatories and there was, therefore, unlikely to be a significant saving of resources in allowing interrogatories rather than discovery.
The Supreme Court decision confirms that relevance and necessity remain the key criteria of discovery, but also introduces other factors to be considered, particularly in extensive discovery requests. In particular, the party refusing discovery on grounds that it is excessive or overly burdensome must now set out the reasons for their refusal and suggest any alternative means of achieving the same end. The decision also highlights the dangers of generic pleadings, which deny all elements of the claim, as this may extend the scope of documentation relevant to the issues in the case.
For further information, please contact Paul Dempsey, Senior Associate, Dispute Resolution Department or another member of the Dispute Resolution team at Eugene F. Collins.