The Supreme Court dismissed Eircom Limited’s appeals against discovery orders requiring it to provide monthly traffic information linked to specified 1800 freephone numbers. The information was sought by Dome Telecom Limited in two cases alleging anti-competitive practices in the sale of call cards. The court decided only the discovery appeals; it did not determine whether the alleged discrimination occurred.
The orders require Eircom to provide monthly minutes data for each specified 1800 number, broken down by access method, for traffic to listed international carriers or other entities where monthly volume exceeded 5,000 minutes. One period ran from July 2000 to April 2005; the other ran from August 1999 to December 2003. The High Court had ordered the information to be produced from Eircom’s raw data and databases.
Dome alleged that Eircom charged licensed operators for mobile and payphone access to 1800 numbers but did not impose the same charges on international operators. Dome said this amounted to discriminatory pricing that disadvantaged licensed operators and, in turn, Dome. Eircom accepted that it had failed to apply charges to all operators during certain periods, which it called the “arbitrage period”, but pleaded objective justification. Dome disputed that the difference was confined to those periods. These were parties’ positions in the underlying litigation, not findings made in the discovery appeals.
Dome argued that invoices already produced would not necessarily reveal traffic for individual numbers, which it said was needed to connect any alleged differential treatment with call-card sales. Eircom argued that generating the requested material would be disproportionate, citing the scale of stored call records and the work involved. The judgment also records proposed evidential concessions by Eircom for specified periods; Dome said the conditions attached made them unhelpful.
The Supreme Court rejected Eircom’s arguments that the High Court lacked power to order the creation of documents or documents that did not exist when the order was made. It said courts could adapt discovery to computerised business records. The court distinguished whether discovery was necessary from whether it was so disproportionate as to be unreasonable, and accepted that Dome had shown a legitimate concern about a gap in its proof if it relied only on invoices.
On proportionality, the Supreme Court reviewed whether the High Court had applied the right legal principles and whether its decision was open to it. It noted that the case was subject to competition-court case management, that the High Court had considered both sides’ arguments, and that some cost estimates had not been supported by evidence. Finding no error of legal principle, the court dismissed the appeals, leaving the discovery orders in place.