Ancillary discovery is a modern development of older equitable principles whereby a third party might be made a party to proceedings substantially for the purpose of discovery. It goes much further than bringing in the third-party as a witness or in summoning him as a witness to produce documents. It contemplates a thoroughgoing discovery of documents relevant to the matter.
The remedy is available where the third-party has done something that might be regarded as wrongdoing or fault such as to justify being made a party for the purpose of discovery. They must be more than a mere witness.
The action for discovery is generally brought before the commencement of the principal proceedings against the wrongdoer. If proceedings have already commenced, discovery against existing defendants to discover the identity of other possible defendants may be sought by an application on the motion.
Some element of involvement or participation in wrongdoing is required. Although the requirement of involvement or participation on the part of the party from whom discovery is sought is not a stringent requirement, it is still significant. The party must be more than a mere onlooker or witness. However, it does not matter that the person from whom discovery is sought was innocent and may be unaware of the wrongdoing.
It does not matter whether the source of wrongdoing is a breach of contract, civil wrong or criminal conduct. Another early case involved a newspaper who had wrongfully obtained information in breach of doctor-patient confidentiality.
The jurisdiction is exceptional and is exercised by the courts only when they are satisfied it is necessary. New situations may arise which expands its limits. The jurisdiction has been used, in particular in relation to Internet service providers and other intermediaries who have information of a third party’s wrongdoings.
In the famous early case of Norwich Pharmacal, proceedings were taken against the defendant solely for the purpose of obtaining the names of persons who were importing a product in infringement of a patent. The defendants were not infringing themselves but made a profit from the infringing goods by levying duty on them. The court accepted the principle that an action might be pursued against the particular defendant for the purpose of obtaining discovery of the names of and particulars of third-party wrongdoers.
In the case, the House of Lords confirmed that the so-called mere witness principle did not apply in respect of proceedings commenced for the purposes of discovery against persons who are subsequently called as a witness in the proceedings. However, the House of Lords held that it did not apply where the discovery was initiated in separate proceedings beforehand. Accordingly, it affirmed the principle of commencing proceedings for the purpose of for discovery even though no relief against that entity was claimed.
The House of Lords held that it was illogical that the right to information might depend on whether the party to the action was technically a wrongdoer. It could apply in respect of a person who became innocently mixed up in the wrongdoing of a third party. The House of Lords concluded that the Commissioners, because of their relationship with the wrongdoer’s property were obliged to disclose the identity of the importers. Public interest immunity was denied.
Acceptance in Ireland
It has been stated in Ireland by the Supreme Court that where a person innocently and without incurring any personal liability becomes involved in the wrongful acts of others, he comes under a duty to assist others injured by those acts by giving in full information by way of discovery and disclosing the identity of the wrongdoers. Some amount of wrongdoing is required. It appears that a prospective prima face claim against the unidentified third-parties and the strength of its evidence against the unidentified third parties is an important factor.
The most prominent Irish case involved an application, an action for discovery against telecommunication companies by music companies, whose Internet services were making recordings available to the public in breach of copyright. The action sought to identify the names of customers holding particular Internet addresses from whom the infringing material had emanated.
The court indicated that it should balance the rights of the parties; the plaintiff’s rights and interests and the defendant’s obligations to the third parties and customers. The data protection and telecommunications legislation specifically provided that they were subject to limitations as to the possibility of court orders for disclosure. An order was made on the basis that the disclosed information would only be used for the purpose of seeking redress for infringement of copyright.
Differing Strands of Approach
Although the broad principles of third-party discovery have been set out by the courts, some of the parameters and conditions, are not entirely worked out as of yet. Different strands of opinion and requirements can be found in various judgments in the principal cases.
The principle remains that the innocent facilitator of the wrong must be mixed up or involved in some way or have facilitated it, so as to be in such a relationship to the wrongdoer that he is obliged to assist the plaintiff. He need not be a wrongdoer in himself.
Another approach emphasises the general principle that discovery is not generally required of a party who is not a witness or a party to an action. Where the same information could be obtained by taking an action and making him a witness, this should be done. This principle is limited if the action can never be commenced because the information is not first found and known
It is well established that the action may be taken to discover the identity of potential defendants. However, some courts have gone further and taken steps towards requiring disclosure of the type that might be obtained against the other party to proceedings.
The principle at its broadest provides that where a person, even innocently and without incurring personal liability becomes involved in the wrongful act of another, that person comes under a duty to assist the person injured by giving him information which he is able to by way of discovery that discloses the identity of the wrongdoer (above is narrow view). The court has discretion as to how much further information might be required.
Norwich Pharmacal also contemplated that where a person through no fault of his own gets mixed up in the tortuous acts of other so as to facilitate the wrongdoing, he comes under a duty to assist the person who has been wronged by giving in full information and a disclosing the identity of the wrongdoers. The extent of the information required is a matter of interpretation of the scope of the law and the court’s discretion. The courts will require clear evidence of the wrongdoing.
In Action Disclosure
The Rules of the Superior Court allow discovery against third-parties in all proceedings. Apart from this, discovery may be indirectly made by a subpoena requiring the production of documents.
If it is intended, however, for the production of documents at the actual hearing of the action. They must be admissible in evidence. In principle, the documents are supposed to be identified in the subpoena.
Discovery is generally undertaken after completion of pleadings. However, the court has power before pleadings closed to order discovery against — for the purpose of identifying other defendants against whom relief might be sought.
A quasi-Norwich Pharmacal order may be made before the closing of pleadings in an action to discover the identity of further parties. This is commonly granted in actions for so-called Anton Piller Orders in intellectual property cases.
Type of Proceedings
It appears that the action is not available in support of criminal proceedings. It may, however, be available in certain cases for contempt of court. This may occur where third parties have knowingly breached an injunction, where they are within the scope of the injunction.
There have been some more recent expressions of view in cases that the historical reluctance to allow the action in support of criminal proceedings is no longer applicable. The Irish Supreme Court has taken the view that discovery under the Rules of the Superior Court against non-parties is not available in criminal proceedings.
Under the Judgment Conventions, applications may be made to the courts of the Member States for such provisional and protective measures as may be available under the law of that State even if under the regulation the courts of another States have jurisdiction as to the substance of the matter.
The Court’s Discretion
The remedy is an equitable remedy and accordingly, the courts have discretion as to how it should be exercised. The courts have indicated that the remedy may be granted only where it is necessary in the interests of justice.
They must first be shown that there is a wrongdoing. There is a relatively high onus on the plaintiff to show this wrongdoing. In many cases, it will be readily shown. Some courts seem to require a higher standard to the effect that wrongdoing must be clearly proved. Other courts have relaxed this requirement.
From the discretionary perspective, the strength of the plaintiff’s case appears to be a relevant consideration. A case that appears weak is unlikely to be granted the relevant assistance.
A key consideration is the interests of the innocent defendant. He should not be unnecessarily embroiled in litigation. The greater his culpability, the more likely the order will e granted. His relationship or proximity to the wrongdoer is relevant.
Refusing an Order
The court will have regard to the rights of the unknown third-party wrongdoer. The order should not infringe on his rights, privacy or data protection rights. His expectation of privacy will be limited if there has been wrongdoing.
The action may not succeed where alternative sources of information are readily available without undue inconvenience or cost. The basis of the order is that the applicant has a prima facie cause of action against parties whose identity cannot be ascertained without the information sought. If this is not, in fact, necessary, the order will not be granted.
The court may refuse an order if it would be oppressive on the parties affected. Accordingly, if the degree of involvement in the third party’s wrongdoing is minimal and innocent it may be disproportionate to require him to take steps which may damage its business. On the other hand, where his involvement was reckless or deliberate, the courts are more likely to grant an order or a wider-ranging order.
General equitable defences are likely to be available. These include delay, want of clean hands i.e. fault on the part of the applicant etc. See generally the section on equitable remedies.
Terms of Disclosure
The disclosure required may take any appropriate form in accordance with the court order. This may include the production of documents, the requirement to make an affidavit, answer interrogatories or attend court to give oral evidence.
Where discovery is sought from an innocent third party, the court will order the costs to be paid by the applicant. The normal rule is that the claimant should pay the cost of the defendant joined just for the purpose of making discovery as well as the actual costs of discovery. If however the defendant has been involved in wrongdoing such as facilitating defamation, it may be ordered to pay the cost of the action.
Voluntary Disclosure First
The prospective defendant should be given the opportunity to make a voluntary discovery and given the opportunity passing on grounds the alleged wrongdoer wishes to bring before the court.
Where the defendant is under a genuine doubt about that claimant’s entitlement, where he is under a legal obligation not to reveal the information might suffer damage from making a voluntary declaration, or disclosure might infringe the legitimate interests of a third-party, he will be likely to be justified in resisting voluntary disclosure. Accordingly, he should obtain costs.
In some cases, it might be appropriate that the order is conditional on advance payment of costs.
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