The Supreme Court allowed Eircom Limited’s appeal against an order requiring it to produce call traffic data for litigation brought by Dome Telecom Limited, and deferred a decision on that discovery until liability is determined in the mobile phone proceedings. The ruling did not decide whether Eircom’s conduct breached competition law or whether Dome is entitled to damages.
Dome’s two cases concern mobile phone and payphone calls to freephone numbers. Dome alleges that Eircom imposed transit charges on Irish operators while allowing international operators to avoid them for periods, disadvantaging Dome and other Irish call card businesses. Eircom disputes the allegations, including that it charged operators discriminatorily or held a dominant position in the relevant market.
The appeal concerned “Category 9” discovery: monthly call minutes for individual 1800 numbers, broken down by access method and limited to specified international operators. The High Court had ordered Eircom to create the requested information from raw data for months between August 1999 and December 2003, subject to a 5,000-minute threshold. Eircom said retrieving and processing the records would impose a substantial technical burden.
In the Supreme Court, Justice Kearns said the data was relevant, but relevance alone did not make discovery necessary. He considered the burden of producing it alongside Eircom’s concession that, for the mobile proceedings, all increases in relevant international freephone traffic during a ten-month period in 2001 were attributable to call card use. The court considered that concession sufficient to allow Dome to pursue the liability issue for that period without the requested discovery.
The court concluded that the order was unnecessary and disproportionate at that stage, particularly because the requested material then related to quantifying loss and liability had to be decided first. It allowed the appeal in both the mobile and payphone proceedings. If Dome succeeds on liability in the mobile case, it may apply again in the High Court for Category 9 discovery if needed to assess damages in either case.
The Supreme Court did not decide whether the discovery order would require Eircom to create documents, whether the requested form of discovery was otherwise permitted under the court rules, or whether inspection of data could be a viable alternative. Those questions remain unresolved.