The Supreme Court has ordered Volkswagen Group Ireland Limited to make further discovery in a dispute with former dealer Pat O’Leary, while upholding a ruling that a mistakenly disclosed email was legally privileged.
The judgment, delivered by Ms Justice Laffoy on 28 April 2015, concerns Mr O’Leary’s appeal against a High Court refusal to strike out Volkswagen’s defence and counterclaim or order further discovery. The dispute arises from Volkswagen’s termination of dealership contracts covering passenger and commercial vehicles. The termination took effect on 30 April 2013.
The Supreme Court rejected most of Mr O’Leary’s discovery complaints. It found no basis to require Volkswagen to disclose the search terms used in its electronic searches or to give an IT specialist appointed by Mr O’Leary access to its electronic records. The Court accepted the High Court’s conclusion that Volkswagen had made reasonable efforts to search for relevant material, despite serious deficiencies in its original discovery affidavit that were later addressed through supplemental discovery.
The Court did, however, find that documents about Blackwater Motors’ Cork City tender process in late 2008 and its contractual arrangements with Volkswagen in 2009 were probably relevant. It considered it probable that those documents reflected Volkswagen’s dealership network strategy for the following years. The Court varied the High Court order to require further and better discovery covering those documents.
A second successful issue concerned a PowerPoint presentation for a dealer meeting in Cashel, County Tipperary, on 16 April 2009. Mr O’Leary had attended the meeting and already had the presentation. The Supreme Court nevertheless found it probably relevant and held that he was entitled to an order for further discovery of it.
The Court dismissed the remaining live discovery challenges, including complaints about GMAP working papers, GAMMA correspondence, missing pages in a network presentation, and documents concerning Volkswagen’s Mach 18 strategy. It also upheld the High Court’s decision that Document 0703, an internal email recording a telephone conference, remained privileged. The email had been disclosed in error; the Court concluded that a reasonable solicitor would have recognised the mistake from the document’s content and context.
The Court directed that the precise terms of the further discovery order be settled after submissions from counsel. It did not reinstate the request to strike out Volkswagen’s defence, and the judgment does not determine the underlying dealership dispute.