knowledge | 31 May 2022 |

Irish Product Liability and Safety Update – May 2022

Disclosure of manufacturers’ product files – changes underway

The Irish government has approved a programme of reforms to Irish civil litigation, authored by a former president of the High Court, which will include significant changes to Irish document discovery (or disclosure). These reforms should help manufacturers of products to oppose unreasonable and overly-broad discovery demands. However, claimants too will welcome the changes, which include a right to seek information from defendants about how they store documents and what document searches they will carry out. The changes are likely to be put in place next year.

Essential but expensive

Discovery of paper and electronic documents is an essential part of Irish civil litigation. The Supreme Court has observed that as well as identifying evidence, discovery helps to ensure that witnesses give honest evidence, as they will be cross-examined in light of emails and other documents discovered.

Due to modern technology and the proliferation of emails and other messages, however, discovery has become more expensive and protracted. A significant difficulty is searching for documents created by large numbers of employees with documents stored on many systems and devices. Discovery in these circumstances is usually labour-intensive, though technology can help in the search for and review of documents, particularly where a company’s documents are well organised.  

Burden on manufacturers

The manufacturer usually carries the main burden of discovery in product liability cases. This is because most claimants only discover medical records and documents showing financial loss. In contrast, the manufacturer may have to search for and assess large numbers of research, manufacturing, testing, regulatory, marketing and market surveillance records, at heavy cost.

Goodbye to Peruvian Guano

The proposed abolition of the Peruvian Guano rule may reduce the burden. That rule, dating from 1882, requires discovery of any document conceivably relevant to a case.

Instead, under the new rules, quite soon after the start of the case, each party will have to produce documents on which they intend to rely in their case.  If a party wishes to get documents from their opponent, they must set out details of narrow and specific categories of documents sought and explain why these are relevant and material to the outcome of the proceedings.

The proposed rules will entitle the parties to seek information from each other about document retention policies, how categories of relevant documents are held or stored, how documents will be  searched for and reviewed, and the anticipated time and cost of carrying out any searches which may be requested.

These novel obligations in Irish civil litigation will help the court to assess the reasonableness of demands for documents in light of likely benefits and costs.   

Implications of the proposed changes

Claimants’ lawyers will probably continue to seek wide discovery to enable their experts to assess whether the manufacturer took unjustified shortcuts or ignored relevant safety information. They will hope to see a “smoking gun” or other prejudicial documents.

They may argue that disclosure of documents by a large company is not unduly burdensome, as companies routinely have to store and access large volumes of documents for regulatory purposes. To support that argument, they may demand information about the manufacturer’s information systems and how its documents are stored. 

However, manufacturers will have greater scope to argue for proportionate and more limited discovery, given the clear intention of the proposed rules.

Such arguments will work best where they are supported by convincing reasons and factual or expert evidence on affidavit showing, for example, that the discovery sought extends beyond the allegations made by the claimant, or is unreasonable in view of the cost and delay involved and the likely results of searches. Generalised assertions along the lines that the costs would be “very heavy” or that the task would take “up to six months” will be less persuasive than evidence on affidavit from a sufficiently knowledgeable person who sets out specific facts and examples.

This document has been prepared by McCann FitzGerald LLP for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.

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