Dome Telecom Ltd v Eircom Ltd
Cases mentioned in this report:-
 3 I.R. 344;  2 I.L.R.M. 208.
 1 W.L.R. 652;  2 All. E.R. 901.
 2 I.R. 20;  2 I.L.R.M. 439.
 Ch. 185;  3 W.L.R. 221;  2 All E.R. 465.
 1 I.R. 184;  1 I.L.R.M. 508.
 4 I.R. 264;  1 I.L.R.M. 241.
Practice and procedure - Discovery - Documents - Electronic database - Offer of concession on matters of evidence - Whether documents necessary for fair disposal of cause or matter - Whether discovery proportionate - Whether discovery should be limited to documents in existence - Whether order of discovery could require party to create documents not previously in existence - Whether different rules apply to discovery in competition cases - Rules of the Superior Courts (S.I. No. 15), O. 31, rr. 12 and 29 and O. 63B, rr. 4(1), (2), 5, 6, 20(1)(b) and 27 - European Communities (Interconnection in Telecommunications) Regulations 1998 (S.I. No. 15) - Rules of the Superior Courts (No. 2) (Discovery) 1999 (S.I. No. 233) - Rules of the Superior Courts (Competition Proceedings) (S.I. No. 130) - Postal and Telecommunications Services Act 1983 (No. 24), s. 111(2) - Competition Act 1991 (No. 24), ss. 4 and 5 - Competition Act 2002 (No. 14), ss. 4 and 5 -Treaty of Rome, Articles 81 and 82.
Cur. adv. vult.
5th December, 2007
1 These are two appeals from discovery orders in which essentially the same issues arise. Both parties are telecommunications companies the nature of whose business is (to use the wording in the plaintiff's written submissions) "the generation and recording of millions of pieces of telecommunications data on a continuous basis". Both cases are concerned with alleged anti-competitive practices affecting the sale of call cards. The respondent which is plaintiff in both actions sought extensive discovery from the defendant much of which has been agreed or furnished but a dispute arose over one particular category, the nature of which I will be explaining.
2 In a dispute over discovery, it is important that the court should not enter into the merits of the case though there must be a clear understanding as to the nature of the issues. I have come to the conclusion that the best way of describing the plaintiff's case for obtaining the disputed category of discovery (which was acceded to by the High Court (McKechnie J.)) is to quote from the succinct summary contained in the plaintiff's written submissions to this court. The relevant passage reads as follows:-
"The plaintiff's business is, inter alia, the sale of call cards, through which it offers its customers telecommunications services such as cheap telephone calls to international destinations. Customers access these services by dialling one of the numbers printed on its call cards. 1800 (freephone) numbers are used to allow customers to access the services without incurring an initial access charge. The plaintiff obtains its telecommunication services from a national telecommunications operator which is licensed by the Office of Director of Telecommunications Regulations (O.D.T.R.), referred to herein as a 'licensed operator'. In turn the licensed operator obtains its services from the defendant. The principal basis of the plaintiff's claim is that the defendant imposed certain charges on licensed operators for the use of 1800 (freephone) numbers where the numbers were dialled by customers from mobile telephones (referred to herein as the 'mobile access charge') and from public payphones (referred to herein as the 'payphone access charge'). The defendant did not impose said charges on telecommunications operators located outside Ireland, referred to herein as 'international operators', who obtained the same telecommunication services from the defendant. The plaintiff alleges that this constituted discriminatory pricing which benefited international operators (and in turn, the plaintiff's competitors who obtained services from such international operators) and discriminated against licensed operators (and in turn, the plaintiff who obtained its services from a licensed operator). It has been accepted by the defendant that for certain periods of time it failed to apply the charges to all operators (referred to by the defendant in affidavits filed in the court as the 'arbitrage period') but it pleads an objective justification with respect to those periods. The plaintiff disputes that the discrimination was limited to the so called 'arbitrage period' admitted by the defendant."
3 A much fuller factual account of the business workings is given in the judgment of Kearns J. which I gratefully adopt. The mobile access charge is generally abbreviated to M.A.C. and the payphone access charge to P.A.C. The appeal no. 374 of 2006 relates to M.A.C. and the appeal no. 375 of 2006 relates to P.A.C. The disputed discovery order made on the 30th August, 2006, in the case to which appeal 374 relates reads as follows:-
"That the defendant do within six months from the date hereof make discovery on oath of the following documents which are or have been in its possession, power or procurement.
The volume of minutes trafficked per month from the 1st July, 2000, to the 7th April, 2005, in respect of each 1800 number by reference to access method by the defendant to international carriers and/or other entities (to be limited for the time being to those identified and set forth in the schedule hereto) where the volume of minutes trafficked to that international carrier and/or other entity in any given month exceeded 5,000 minutes - the documents within the power of the defendant to be created from the defendant's raw data and data-bases and using the defendant's own database."
A similar order was made by the High Court in the action to which appeal 375 relates i.e. the action relating to P.A.C., the only difference being the dates, the specified period in appeal no. 375 is from the 31st August, 1999 to the 23rd December, 2003.
4 The discovery applications in these two cases have had a long and troubled history which I do not find it necessary to recount in detail. With a view to putting the latest dispute into some kind of context, I will explain this much. As already mentioned, there were a number of different categories of "documents" sought and it is category 9 which is now in controversy. At one of a number of hearings before the High Court Judge, it was suggested by the defendant that he postpone making any order in relation to category 9 because in the view of the defendant the information allegedly needed by the plaintiff from that category would in practice be furnished with the discovery in respect of category 8. Category 8 read as follows:-
"All invoices raised and issued by the defendant to licensed operators and/or international carriers and/or other entities relating to the operation of 1800 freephone numbers from the 1st July, 2000, to the date hereof."
More accurately, I should state that that particular wording related to appeal 374. The corresponding category 8 in respect of the case to which appeal 375 relates contained a different date, i.e. the 31st August, 1999.
5 In respect of both category 8 and category 9 and in each of the two cases, reasons for the requests were set out in the relevant requesting letter. In respect of the case the subject of appeal 374 the reasons for requiring category 8 were stated as follows:-
"The defendant has claimed that it applies the M.N.O. originating charge/M.T.C. in a non-discriminatory manner and/or that differences in treatment are objectively justified, contrary to the allegation of discrimination made by the plaintiff. Discovery of invoices raised by the defendant in respect of the provision of 1800 numbers can reasonably be expected to demonstrate the veracity of its denial in this regard. In addition to demonstrating whether the charges are in fact imposed at all, the invoices may demonstrate the credit periods afforded to operators in relation to payment of the charges. To the extent that certain operators are afforded a longer credit period in which to discharge the M.N.O. origination charge/M.T.C. invoices discovered by the defendant may confirm this particular form of discrimination."
In respect of the case to which appeal 375 relates the wording is identical except that "P.A.C." is substituted for "M.N.O. origination charge/M.T.C.".
6 The reasons given for requiring category 9 in the case to which appeal 374 relates read as follows:-
"The plaintiff alleges that it has suffered loss as a result of the discriminatory imposition of the M.N.O. origination charge/M.T.C. by the defendant. Access to full details regarding the quantity of 1800 numbers issued by the defendant, the number of minutes traffickedper number (by reference to access method) and the names of the parties to whom the numbers were allocated would enable the plaintiff to assess the manner in which the M.N.O. origination charge/M.T.C. was imposed. In addition, in terms of assessing the quantum of its alleged loss, such information would demonstrate how in a market...
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