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Drain Cleaner Incident - High Court Takes Hard Line on Evidence Disclosure

Experienced litigators will tell you that much of their most important work goes on in the background, long before a case comes before a judge for trial. That was certainly so in a case concerning death and catastrophic injury alleged to have been caused by exposure to a household drain cleaner.

Hydrogen sulphide gas and fumes given off by the product were said to have led to the death of a man who was attempting to unblock a family's kitchen sink. They were also claimed to have injured members of the family, one of whom had suffered a brain injury and remains in a persistent vegetative state.

The alleged victims of the incident lodged a claim for damages against the product's manufacturer. They were understandably anxious to find out whether there had been any similar incidents in the past. The process of obtaining disclosure of potentially relevant documents from the manufacturer had, however, been a vexed one and had to a large extent stalled.

Particular concerns arose when it emerged that all hard copy documentation in the manufacturer's factory had been shredded. That had apparently been done after the manufacturer was put on notice of the claim. It said that it was not required to keep hard copy documents in respect of the entire period of almost 30 years during which the product had been on the market. Prior to shredding, documents dating back to 2009 had been scanned and stored in digital format on a hard disk.

In circumstances where there had been destruction of documents and a lack of cooperation by the manufacturer in relation to the disclosure process, the High Court granted orders that were designed to assist evidence gathering.

The manufacturer was, amongst other things, required to give details of the source of disclosed documents. As a precautionary measure, the Court authorised an IT expert to interrogate the hard drive using sophisticated software that was potentially capable of, amongst other things, retrieving further documents and identifying any deletions from the database. The manufacturer was given additional time in which to comply with its disclosure obligations.

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