Discovery And Commercially Sensitive Documentation

Author:Mr Gearóid Carey
Profession:Matheson Ormsby Prentice

The Commercial Court recently considered the applicable test in relation to discovery in related cases which were proceeding before it. Judge McGovern, in considering the applications before him, addressed the relevant test for determining whether particular categories of discovery should be ordered by the court. In doing so, he also had to consider whether to order discovery of confidential and commercially sensitive documents.


In Flogas Ireland Limited v Tru Gas and Flogas Ireland Limited v Langan Fuels Limited 1 the Commercial Court was dealing with claims, among other things, for injunctions, damages and other forms of relief against the defendants, arising out of their alleged use of the plaintiff's gas cylinders, constituting infringement of the plaintiff's registered trademarks and passing off. The defendants in each case sought broad categories of discovery, not all of which were agreed by the plaintiff. While some objections with regard to discovery were specific to the matters in dispute, and related to whether the requests were grounded on the pleadings, the plaintiff made a general complaint that the nature of the discovery sought required it to provide sensitive market information in circumstances where the parties were competitors. Therefore, the court had to consider whether to order discovery of the categories sought and, if that test was met, how to deal with the confidential or commercially sensitive documentation.

The law

In determining whether to direct discovery of the categories sought, the court cited at length from the decision inHartside Ltd v Heineken Ireland Ltd.2 In the course of that judgment, Judge Clarke cited other authority to the effect that the principles to which a court should have regard are as follows: "(1) The court must decide as a matter of probability as to whether any particular document is relevant to the issues to be tried. It is not for the court to order discovery simply because there is a possibility that documents may be relevant. (2) Relevance must be determined in relation to the pleadings in this specific case. Relevance is not to be determined by reason of submissions as to alleged facts put forward in affidavits in relation to the application for further and better discovery unless such submissions relate back to the pleadings or to already discovered documents. It should be noted that O. 31, r. 12 of the Rules of the Superior Courts 1986 specifically relates to...

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