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Judge urges reform of discovery ‘monster’

Lawyers at William Fry have highlighted recent comments from a High Court judge on the need for reform of the discovery process.

Mr Justice Michael Twomey’s judgment came in a case where it was submitted that 1.78 million documents had to be searched for discovery purposes.

The plaintiff argued that, based on current discovery rules, it was entitled to an order requiring the defendant to discover documents, even though it already had, or should have had, those relevant documents in its possession.

‘Relevant and necessary’

The William Fry lawyers said that the court identified the key issue as whether the documents, where clearly relevant to the dispute, were necessary for discovery under current discovery law.

The applicable law, which dates back to an 1882 decision, requires documents to be both relevant and necessary for the fair disposal of the case. A relevant document is presumed to be necessary.

“While it was agreed that the documents were relevant, the parties disputed the necessity element,” the William Fry lawyers said.

‘Plain meaning’

In his judgment, Mr Justice Twomey (pictured) said that the term ‘necessary’ should be interpreted “using its plain meaning as needing a document”.

“If I have a document (or if there is no obvious reason why I would not have a document, that was sent to, or by, me) then that document is not ‘necessary’ to be discovered,” he stated, refusing discovery of some categories of documents sought.

The judge cited the 2020 Report of the Review Group of the Administration of Justice (Kelly Report), which described current discovery rules, based on 19th century legal techniques, as ”completely unsuited” to an era of electronic data and mass information.

Need for action

He emphasised that the present case provided an opportunity to highlight the ‘monster’ that discovery had become, and the need for action by the Oireachtas in this area.

The judge added that an order drafted in the Kelly Report to replace the current discovery rules “lies, in effect, unimplemented on the shelf”.

William Fry said that the judgment advanced efforts calling for a reform in the discovery process “in light of the challenges posed by the sheer volume of electronic data in modern litigation”.