Retrieval of thalidomide documents could cost ‘almost €170m’

The Department of Health is trying to block a High Court order that it hand over documents relating to 33 thalidomide survivors, suggesting it could cost almost €170 million and take years to retrieve the records.

Patsy Carr, a principal officer in the department, said a request to disclose relevant records would involve a trawl through “at least 91 million individual documents”.

A separate search of the department’s shared drives, archive system and databases would be “extremely large indeed” and likely to involve “a minimum of an additional 10 million documents”.

The claims are made in an affidavit in a compensation claim case taken by 26 of the survivors against the drug manufacturers, German firm Grunenthal GmbH, the Irish distributors, TP Whelehan Son & Co, and the Ministers for Health and the Environment.

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In a case management hearing last year, the court was told the survivors had all the documents that were relevant to their case, which was handed over to them during a review by the State Claims Agency in 2010.

The documents filled just six boxes, according to papers before the High Court.

Thalidomide, which was launched as a sedative in Germany in 1957, is alleged to have caused deformities in unborn children when it was given to their pregnant mothers. The alleged wrongdoing dates back to the 1960s and the defendants deny all the claims.

Defendants were ordered by the High Court in April to grant discovery, or disclosure, of documents relevant to the case.

This is to include all correspondence with the Office of the Attorney General, the Departments of An Taoiseach and An Tánaiste, the Chief State Solicitor’s Office, the German government and all pharmaceutical companies.

But the Department of Health said it “holds a very large number of documents” which relate to a government-funded settlement scheme for survivors which has operated since 1975.

Restriction of disclosure

It has asked the High Court to restrict disclosure of documents only to those pre-dating the set-up of the scheme, which campaigners say was inadequate because it was presumed survivors would not live long.

The request for records dating from after 1975 is “extreme and excessive”, Ms Carr said.

A separate trawl of records indicated a potential cost of €250,000 for every 150,000 documents to be reviewed, she said, adding “that a review of approximately 91 million electronic documents would present very extreme problems in terms of time and cost”. Her calculations suggest it could cost as much as €168 million.

Also suggesting a lengthy timeframe, she said a separate discovery project in different litigation involving the department “has taken two years to date and is not yet complete, despite a team of 14 documentary counsel working to review the documents in question”.

But in a responding affidavit, one of the plaintiffs, Austin O’Carroll, said it was “difficult to understand” the claimed volume of records that need to be searched.

“The number of acknowledged Thalidomide survivors – some of whom are deceased – is 33,” he stated.

Relevance

Thalidomide survivor Mr O’Carroll, a Paralympian sailor, doctor and father of two, said the “vast quantities” the department was referring to was in fact the “entirety” of all its records rather than those relevant to the case.

Skilled IT staff could use technology to interrogate records to whittle them down to what was needed, he said, adding that it was “highly likely” advice and comments had been made on the thalidomide settlement since 1975.

A meeting between legal teams for survivors and the department, which included IT experts, to try to resolve the claimed issues around the volume of documents was held on May 31st.

According to Mr O’Carroll’s affidavit, the meeting could not proceed because the plaintiffs wanted it “on the record” while the department insisted it be held on a “without prejudice” basis.

Last Wednesday, Mr Justice Seamus Noonan ordered both sides to meet again this week in an attempt to resolve the issues.

Mr Justice Noonan has previously expressed his concern about “the slow pace” of the proceedings. Many of those bringing cases may not survive to see a trial, he has said.