Challenging a Third-Party Discovery Request
What, if any, circumstances entitle a third-party to resist a discovery request? In this article we look at recent cases where third-party discovery applications were contested.

 

"Third-party" or "non-party" discovery is provided for under Irish court rules. It is an extension of the scope of discovery in that it allows the court to order a non-party or stranger to the proceedings to make discovery of documents in certain circumstances.  

Basis and Standing

Order 31 Rule 29 of the Rules of the Superior Courts (RSC) governs the procedure in the superior courts, while similar provisions are also contained in the Circuit Court Rules and District Court Rules.

The test applicable to an application for non-party discovery was summarised by the Supreme Court in Edward Keating v Radio Telefís Éireann and Others [2013] IESC 22. The applicant must establish that:

  • the third party has or is likely to have in its possession or power of possession documents falling within the parameters of the type of documents sought;
  • the documents are relevant to an issue or issues in the action;
  • an order for discovery is necessary for disposing fairly of the cause or matter or for saving costs; and 
  • any order made, by reference to its scope, is not oppressive.

The Supreme Court also emphasised the discretionary nature of the court's jurisdiction in non-party discovery applications. 

Challenging the third-party discovery request as the third-party

In Lynda Meegan v Times Newspapers Limited t/a The Sunday Times [2021] IEHC 495, the Commissioner of An Garda Síochána (AGS) was directed to make discovery of a report despite arguing that it was covered by public interest privilege.  See our previous article on the judgment here.

Mark Beatty v The Military Judge and The Director of Military Prosecutions and The Human Rights Commission (Notice Party) [2021] IECA 69

In this case, Mr Beatty (Appellant) brought an application in the High Court for non-party discovery against the Court Martial-Administrator (CMA), seeking discovery of a copy of the Digital Audio Recording (DAR) from the court-martial proceedings that had been brought against him, and which he wished to have judicially reviewed.

The High Court refused the application on the grounds that the discovery sought by the Appellant was otherwise available from an existing party to the review proceedings (i.e. the Military Judge), and that the Appellant had not shown any exceptional need for the DAR beyond “the prevention of disparity” between the parties. 

The Appellant's case was also dismissed by the Court of Appeal (COA). The COA focused on the necessity for non-party discovery. The COA noted that because of the position of the non-party and the imposition of onerous discovery obligations on such parties, it followed that Order 31 Rule 29 RSC should be interpreted restrictively. It noted that non-party discovery should only be ordered where documents could not be obtained by other means or where there was no realistic alternative for the applicant.

Pat O'Mahony, Leonard Hyde & Labardie Fisher Ltd v Guardian News & Media Ltd [2020] IEHC 234

This case concerned defamation proceedings. The defendant applied for discovery against two non-parties, the Department of Tourism, Transport and Sport, and the Commissioner of AGS. Both non-parties contested the discovery application on four grounds:

  1. relevance and necessity; 
  2. excess scope and oppression; 
  3. public interest privilege; and 
  4. confidentiality. 

Barton J held that the categories of documents sought were patently relevant to the issues raised by the plea of truth, and it was clear that the non-parties were the only remaining sources for the documentation sought, as the plaintiffs made discovery which the defendant accepted was full and complete. Barton J held that orders in the terms sought were necessary to avoid unfairness at trial.  He accepted the defendant’s submissions that the scope of the discovery was not so broad as to render compliance with the terms of the orders sought onerous to the point of being oppressive. Barton J also rejected the public interest claim and held that communications of a confidential nature do not of themselves create a privilege against disclosure. Non-party discovery was therefore granted. 

Ryanair Limited v Channel 4 TV Corporation and Blakeway Productions Limited (Defendants) Irish Aviation Authority (Non Party) [2017] IEHC 743

The plaintiff sued the defendant arising out of statements regarding the airline's safety. Non-party discovery was sought from the Irish Aviation Authority (IAA) of four categories of documents.

The IAA's concerns related to confidentiality and its legal obligations under Irish and EU rules concerning aviation safety. It also raised reservations regarding the “chilling effect” such discovery could have on reporting occurrences to the IAA in the future.

The focus of the High Court was on whether the documents were relevant and necessary.  It ordered discovery of two out of the four categories.  It found one category was neither relevant or necessary, and the other was unnecessary and in some degree overlapped with another, so it was redundant. 

Conclusion

As the above cases show, the courts carefully examine the merits of non-party discovery applications. They will assess the necessity and adequacy of such applications, as well as the grounds advanced to resist it. Arguments such as confidentiality or public interest privilege will not necessarily defeat such applications. Given its discretionary nature, third-parties resisting the application need to advance compelling evidence that the application is unnecessary, oppressive or that the documents can be obtained by other means. 

If you wish to discuss any aspect of this article in more detail, or need advice on third party discovery, please contact Paul Convery, Laura Murdock or Adele Hall or your usual William Fry contact.

 

Contributed by Karolina Rozhnova

 

Key Contacts

Paul Convery Partner

Laura Murdock Partner

Adele Hall Senior Associate

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