The Court of Appeal dismissed Carol Burke’s appeal against a High Court refusal to let her experts inspect Boston Scientific’s servers and computers for potentially missing documents. The court said the inspection rules did not permit a search for documents that had not been identified in discovery or pleadings.
Burke had sued Boston Scientific, alleging that she was subjected to bullying, harassment and intimidation, particularly in 2007, while working as a payroll specialist at the company’s Ballybrit premises in Galway. She claimed personal injuries and damages. The company denied liability and pleaded contributory negligence.
In 2012, the High Court ordered discovery of nine categories of documents. The company’s initial affidavit said six categories, if they existed, had long since been deleted and were no longer in its possession, custody or power. Burke questioned why emails for November and December 2007 had been produced but similar October emails had not.
She then sought inspection of company servers, backup equipment and her work computer, as well as internal telephone records for Lorraine Kelly covering 27 November to 7 December 2007. The High Court refused the application. It said inspection applied to documents already discovered, while a party alleging incomplete discovery could seek further and better discovery or cross-examine the person who swore the discovery affidavit.
During the appeal, Burke was allowed to rely on evidence that emails from 8 September to 26 November 2007 had been deleted from her laptop, though an index to the correspondence remained. The company later provided a data stick and filed further affidavits, including a composite affidavit of discovery in November 2015. Its counsel accepted that the original discovery affidavit was incomplete, but argued that the inspection application was still procedurally misconceived.
Justice Irvine said the appeal concerned inspection under Order 31, rules 15 and 18, not a motion to compel further discovery. Those rules concern documents known to exist and identified in an affidavit of discovery or specifically referred to in pleadings. Burke’s application sought access to data on company and third-party servers in the hope of finding documents that had not been disclosed. The court held that this was outside the inspection rules and could expose material belonging to third parties.
The court did not decide whether the company’s later discovery was complete. Irvine said any remaining challenge to discovery had to be dealt with by the High Court at first instance, and expressly said she was not encouraging Burke to pursue either procedural option mentioned. The appeal was dismissed.