Mosslmani by his tutor Karout v Nationwide News Pty Ltd (No. 2)

[2018] NSWDC 113

District Court

New South Wales

Medium Neutral Citation:

Mosslmani by his tutor Karout v Nationwide News Pty Ltd (No. 2) [2018] NSWDC 113

Hearing dates:

12 April 2018

Date of orders:

12 April 2018

Decision date:

02 May 2018

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

(1) Note the plaintiff’s discovery issues have been resolved by reason of the Category 2 documents being no longer in dispute.
(2) The plaintiff is to discover the following (or if he no longer has a document in his possession, set out the relevant information in Schedule 2 consistent with r 21.3(2)(a)(ii) Uniform Civil Procedure Rules 2005 (NSW), in 28 days:

 

Categories 1, 2, 5 and 6
(a) Other matters complained of the subject of proceedings;
(b) Email, posts and messages from the plaintiff’s deactivated Facebook account recording or referring to social media posts, news articles and webpages concerning the plaintiff’s haircut;
(c) Email, posts and messages referred to or identifiable in the defendant’s particulars of the facts and matters relied upon in paragraph 8.3 in relation to the defence of honest opinion and paragraph 10 in relation to the defence of justification.

 

Category 3 – In addition to the above, documents referring to or concerning the Matter Complained Of, the subject matter of the Matter Complained Of and/or the plaintiff’s haircut (including but not limited to the concerns notices and replies).

 

Category 4 – Documents referring to or concerning any communications or other contact between the plaintiff and/or any person on his behalf and news media organisations concerning an interview about the plaintiff’s haircut, including but not restricted to concerns notices and replies to those news media organisations.

 

Category 7 - All documents evidencing, referring to or concerning any communications or other contact between the plaintiff and/or any person on his behalf, and any school or other educational institution or authority (or any servant or agent thereof) concerning the Matter Complained Of, the subject matter of the Matter Complained Of or the plaintiff’s haircut.

 (3) Defendant to give discovery in 14 days.
(4) Plaintiff to pay the defendant’s costs of the argument today.
(5) Matter stood over to the Defamation List on Thursday 3 May 2018 for further directions.

Catchwords:

TORT – defamation – plaintiff’s obligations in relation to discovery of electronically stored information such as social media posts

Legislation Cited:

Defamation Act 2005 (NSW), ss 32 and 38
Uniform Civil Procedure Rules 2005 (NSW), rr 21.2, 21.3, 21.4, 21.7 and 31.10

Cases Cited:

Ange v Fairfax Media Publications Pty Ltd [2012] NSWSC 1200
Cazaly Iron Pty Ltd v The Hon John Bowler MLA, Minister for Resources [2006] WASCA 282
Construction, Forestry, Mining and Energy Union v BHP Coal (No 2) [2017] FCA 1539
Cyril Smith & Associates Pty Ltd v The Owners-Strata Plan No 64,970 (No 2) [2011] NSWCA 245
Dai v Zhu [2013] NSWCA 412
El-mouelhy v QSociety of Australia Inc (No 4) [2015] NSWSC 1816
Hanrahan v Ainsworth (1990) 22 NSWLR 73
Kaji Australia Pty Ltd v Glover (No 2) [2018] NSWSC 414
McConnell Dowell Constructors (Aust) Pty Ltd v Santam Ltd & Ors (No. 1) [2016] VSC 734
Mosslmani by his tutor Karout v Dailymail.com Australia Pty Ltd; Mosslmani by his tutor Karout v Nationwide News Pty Ltd; Mosslmani by his tutor Karout v Australian Radio Network Pty Ltd (No. 1) [2016] NSWDC 264
Mosslmani by his tutor Karout v Dailymail.com Australia Pty Ltd; Mosslmani by his tutor Karout v Nationwide News Pty Ltd; Mosslmani by his tutor Karout v Australian Radio Network Pty Ltd (No. 2) [2016] NSWDC 357
Mosslmani by his tutor Karout v Nationwide News Pty Ltd [2017] NSWDC 103
Palavi v Queensland Newspapers Pty Ltd [2011] NSWSC 274
Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264
Re McGorm; Ex parte Cooperative Building Society of South Australia (1989) 20 FCR 387
Schutz DSL (Australia) Pty Ltd v VIP Plastic Packaging Pty Ltd (No 15) [2012] FCA 781
Tarrant v Statewide Secured Investments Ltd [2011] NSWCA 248
Yarra Creek Central Packing Shed Pty Ltd v Amcor Limited [2006] FCA 1802

Texts Cited:

Discovery in Federal Courts (ALRC CP 2, 15 November 2010)
“Discovery in the Digital Age” (Tony Burke & Associates, 2015)
Managing Justice: A Review of the Federal Civil Justice System, ALRC Report 89 (2000)
Professor Brown, Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States (Carswell, 2nd ed.)

Category:

Principal judgment

Parties:

Plaintiff: Ali Ziggi Mosslmani (also known as Ziggy) by his tutor Zeinab Karout
Defendant: Nationwide News Pty Ltd (ACN 008 438 828)

Representation:

Counsel:
Plaintiff: Mr R Rasmussen
Defendant: Ms M Cowden

  Solicitors:
Plaintiff: Saab Law Group
Defendant: News Limited

File Number(s):

2016/210996

Publication restriction:

None

Judgment

The application before the court

1. These are proceedings for defamation which have already been the subject of previous rulings in relation to four claims for defamation brought by the plaintiff: Mosslmani by his tutor Karout v Dailymail.com Australia Pty Ltd; Mosslmani by his tutor Karout v Nationwide News Pty Ltd; Mosslmani by his tutor Karout v Australian Radio Network Pty Ltd (No. 1) [2016] NSWDC 264; Mosslmani by his tutor Karout v Dailymail.com Australia Pty Ltd; Mosslmani by his tutor Karout v Nationwide News Pty Ltd; Mosslmani by his tutor Karout v Australian Radio Network Pty Ltd (No. 2) [2016] NSWDC 357; Mosslmani by his tutor Karout v Nationwide News Pty Ltd [2017] NSWDC 103.

2. This judgment relates solely to the plaintiff’s claim for defamation against Nationwide News Pty Ltd. These are my reasons for orders made on 12 April 2018 requiring the plaintiff to give discovery of the following seven categories of documents:

1. All documents evidencing, referring to or concerning social media posts, news articles and webpages concerning the plaintiff’s haircut.

2. All documents evidencing, referring to or concerning the plaintiff being greatly injured in his character, credit and reputation and brought into public hatred, ridicule and contempt by reason of publication of the Matter Complained Of, the subject matter of the Matter Complained Of and/or the plaintiff’s haircut.

3. All documents evidencing, referring to or concerning any communications or other contact between the plaintiff and/or any person on his behalf, and: (a) the defendant; (b) any servant or agent of the defendant; and/or (c) any other person, concerning the Matter Complained Of, the subject matter of the Matter Complained Of and/or the plaintiff’s haircut.

4. All documents evidencing, referring to or concerning any communications or other contact between the plaintiff and/or any person on his behalf, and news media organisations concerning an interview about the plaintiff’s haircut.

5. All documents evidencing, referring to or concerning any communications or other contact between the plaintiff and/or any person on his behalf, and Jeremy Nool concerning Mr. Nool’s photographs of the plaintiff, the Matter Complained Of, the subject matter of the Matter Complained Of and/or the plaintiff’s haircut.

6. All documents evidencing, referring to or concerning any communications or other contact between the plaintiff and/or any person on his behalf, and Paul Behman concerning the Matter Complained Of, the subject matter of the Matter Complained Of and/or the plaintiff’s haircut.

7. All documents evidencing, referring to or concerning any communications or other contact between the plaintiff and/or any person on his behalf, and any school or other educational institution or authority (or any servant or agent thereof) concerning the Matter Complained Of, the subject matter of the Matter Complained Of or the plaintiff’s haircut.

3. Although each of these categories appears to seek different documentation, in practical terms the parties agreed that the same principles applied to all of them and the discoverability of this list of items was dealt with as being one argument.

The parties’ submissions

4. The parties agree that the bulk of the documents sought on discovery are social media posts, online publications and (in the case of the school) emails from the school.

5. The plaintiff (as set out in his solicitors’ letter of 14 March 2017) initially refused to provide any of the documents sought, on the basis that the requests were “so vague as to be vexatious and oppressive”. Mr Rasmussen’s submissions, rather more helpfully, elucidated his client’s position on discovery as follows:

1. As to social media, the plaintiff only had a Facebook account, which had been deactivated. He did not own a mobile phone or have an email account.

2. The plaintiff no longer had in his possession any of the material he had observed, whether electronically or in hardcopy, apart from other copies of matters complained of in other proceedings he had commenced.

3. There were no other documents and, in particular, there were no documents in relation to the circumstances in which the plaintiff left his school and was being home schooled.

6. The objections raised to the defendant’s categories for discovery need to be examined in the prism of the Defence and the scope of evidence at the trial. The defences pleaded are justification, honest opinion, comment at common law and matters in defeasance of each of the defences of honest opinion and comment at common law. The damages issues include a plea of mitigation of damages.

7. Paragraph 7.3 of the Defence sets out the particulars of facts and matters upon which the opinion was based, which are as follows:

“7.3 the opinion is based on proper material, or alternatively is based on material which was to some extent proper material and was an opinion such as might reasonably be based on such of the material as is proper material.

PARTICULARS

A. The Commentators were:

(i) Jeremy Nool, the photographer who took the photograph of the Plaintiff’s haircut that is shown in the Matter Complained Of (the Photograph) and shared it on social media;

(ii) more than 100 people who created memes based upon the Photograph, including but not limited to the two memes shown in the Matter Complained Of and the other memes described in the Matter Complained Of (the Memes) and shared them on social media; and

(iii) more than 2 million people who reacted to, commented on and shared the Photograph and the Memes on social media.

B. The opinion related to the following matters of public interest:

(i) the sudden and unpredictable nature of internet fame;

(ii) a member of the public being famous on the internet;

(iii) the Photograph as the subject of public criticism and/or discussion;

(iv) the Plaintiff’s conduct in wearing the haircut shown in the Photograph as the subject of public criticism and/or discussion;

(v) the public trend of creating and sharing memes, including but not limited to the Memes; and

(vi) the public trend of wearing the haircut called “the mullet”.

C. The opinion is based on the following material:

(i) the Photograph - which is proper material because it is a substantially true representation of the Plaintiff’s haircut;

(ii) the Memes - which are proper material because they include a is a substantially true representation of the Plaintiff’s haircut, in addition to other images that are substantially true representations of the material they seek to portray; and

(iii) more than 2 million social media posts within one week that react to, comment on and share the Photograph and the Memes - which are proper material because they are substantially true representations of the users’ reactions, comments and sharing activities.”

8. Paragraph 8.3 of the Defence provides:

“8.3 the opinion is based on proper material, or alternatively is based on material which was to some extent proper material and was an opinion such as might reasonably be based on such of the material as is proper material.

PARTICULARS

A. The opinion related to the following matter of public interest:

(i) the Defendant repeats the particulars to paragraph 7 above.

B. The opinion is based on the following material:

(i) the Defendant repeats the particulars to paragraph 7 above;

(ii) the Plaintiff’s statements and other reactions to publication of the Photograph and the Memes as stated in the Matter Complained Of - which are proper material because they are substantially true representations of the same;

(iii) Jeremy Nool’s statements and other reactions to publication of the Photograph and the Memes as stated in the Matter Complained Of - which are proper material because they are substantially true representations of the same;

(iv) Paul Behman’s statements and other reactions to publication of the Photograph and the Memes as stated in the Matter Complained Of - which are proper material because they are substantially true representations of the same;

(v) the fact that the haircut called “the mullet” was worn by Billy Ray Cyrus, Andre Agassi, John Farnham, Jon Bon Jovi, Jason Donovan and Mel Gibson – which is substantially true; and

(vi) the fact that the haircut called “the mullet” was popular in the 1980s but is no longer in fashion – which is substantially true.”

9. In addition, particulars of justification are pleaded on the basis of the factual accuracy of the statements in the matter complained of, such as that more than 2 million people reacted to, commented on and shared the photograph of the plaintiff and the memes on social media “most of whom ridiculed the plaintiff” (paragraph 10).

10. Discovery has not yet occurred because the parties have been unable to agree on the scope of the documents. That means it is not necessary to determine whether there is a failure to discover warranting an order for further discovery (Dai v Zhu [2013] NSWCA 412 at [124] – [125]).

The relevant principles of law

11. Although r 21.2 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) does not contain any special provisions for defamation actions, applications for discovery in defamation proceedings focus strongly upon the pleadings and particulars, for the reasons set out by Professor Brown in Chapter 21 (“Discovery”), Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States (Carswell, 2nd ed.).

12. The terms of UCPR r 21.2 are as follows:

“21.2 Order for discovery

(1) The court may order that party B must give discovery to party A of:

(a) documents within a class or classes specified in the order, or

(b) one or more samples (selected in such manner as the court may specify) of documents within such a class.

(2) A class of documents must not be specified in more general terms than the court considers to be justified in the circumstances.

(3) Subject to subrule (2), a class of documents may be specified:

(a) by relevance to one or more facts in issue, or

(b) by description of the nature of the documents and the period within which they were brought into existence, or

(c) in such other manner as the court considers appropriate in the circumstances.

(4) An order for discovery may not be made in respect of a document unless the document is relevant to a fact in issue.”

13. The procedure set out in r 21.2 UCPR provides that discovery is to be in accordance with classes of documents specified and capable of being “relevant to a fact in issue”. The “chain of inquiry” rule no longer applies: Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 at [101].

14. Mr Rasmussen submitted that as parties are no longer entitled to general discovery, UCPR Part 21 must be strictly complied with, citing Palavi v Radio 2UE Sydney Pty Ltd at [101]. Discovery will only be permitted where it is reasonably necessary for the purpose of disposing fairly of the cause or matter and not where it serves as “an instrument of oppression” (per Allsop P at [101]) (although I observe en passant that it would be hard to find a more oppressive result than the striking out of the whole of the proceedings for failing to give discovery of mobile phone records, as occurred in Palavi v Radio 2UE Sydney Pty Ltd).

15. One of the difficulties with electronic records, however, is that, unlike paper records that are easily destroyed or lost, electronic records are more readily found and are capable of existing for an indeterminate time.

16. In the case of the plaintiff’s deactivated Facebook account, or emails sent to his parents regarding his schooling, it is arguable that these records have never left the plaintiff’s possession at all, and thus do not qualify for entry in Schedule 2 for that reason.

17. Consideration of the plaintiff’s obligations of discovery in these proceedings requires examination of the relevant statutory provisions for production of documents and how the nature of electronically stored information has been fitted into rules designed for hard copy documents.

Discovery of electronically stored information

18. Until computerised records became widespread, the enormous amount of documentation generated by businesses made discovery an increasingly burdensome task. In Managing Justice: A Review of the Federal Civil Justice System, ALRC Report 89 (2000), the ALRC noted (at [6.67]) that ‘in almost all studies of litigation, discovery is singled out as the procedure most open to abuse, the most costly and the most in need of court supervision and control”. Substantial changes were made to the discovery process to restrict its ambit, including the abolition of general discovery and its replacement by categories of documents and other methods aimed at the reduction of costs.

19. In “Discovery in the Digital Age” (Tony Burke & Associates, 2015) Tony Burke described the document-laden, megalitigation-prone process of paper discovery as follows:

“In the old days, the height of sophistication in commercial litigation was to be part of a phalanx of lawyers confidently striding out from counsels’ chambers across William Street, Melbourne to the Supreme Court followed by some underling wheeling a trolley laden with multiple lever arch files collectively comprising the Court Book neatly indexed and paginated and produced at enormous expense by one of those Court Book providers.

Those Court Books in turn were the product of a lengthy process, often taking many months, of the parties making discovery of documents in printed paper format, occasionally scanning and coding those documents, tedious inspection which often took place at the office of the solicitors for the disclosing party, outrageous claims for copying the documents so produced, tedious arguments between Counsel as to what was relevant and appropriate for inclusion in the Court Book and then the time consuming process of collating it, paginating it and preparing multiple copies of it.

More often than not, the vast majority of the documents so produced proved to be irrelevant in the running of the trial. Further, more often than not there would be twists and turns in the trial, late changes of pleadings and late focus on documents that had not hitherto been discovered. It was all an extravagant, slow and expensive process and sometimes a complete waste of time in the final analysis.”

20. Many of the limitations on discovery (such as categories and the the six-month rule in relation to Part 2 of the List of Documents) were put in place to restrain this kind of mega-discovery. There were concerns that these restraints on the discovery process would be undermined by technological innovation and electronically stored information, as can be seen from this extracts from Discovery in Federal Courts (ALRC CP 2, 15 November 2010) at Part 3:

“3.56 Since 1999 the range of material potentially to be discovered has increased exponentially through advancing computer technologies—with an attended and significant increase in discovery costs. Electronic communications can be inherently expensive to discover, in part due to the cost of specialist service providers with expertise in computer technologies. For example, Lord Jackson’s Review of Civil Litigation Costs reported that typical service charges for e-discovery include: electronic document processing (extracting metadata, text, attachments etc, for use on a document review system) £250–£1,000 per gigabyte of data, document hosting on a review system at £20–£150 per gigabyte per month and a user access fee between £10–£100 per user.[62]

3.57 E-discovery costs can also include expensive computer software and hardware. For example, the ALRC heard during initial consultations that the discovery of information stored on old back-up tapes can require the reconstruction of outmoded hardware at great expense in order to read the tapes only to discover completely irrelevant information.

3.58 A number of commentators have noted the distorting effect that technology has had on discovery costs. This includes Acting Justice Ronald Sackville of the New South Wales Supreme Court, formerly a judge of the Federal Court of Australia, who has remarked on the discovery process:

“It is here that extraordinary and disproportionate costs are frequently incurred by parties to litigation. Far too often the search for the illusory ‘smoking gun’ leads to squadrons of solicitors, paralegals and clerks compiling vast libraries of materials, much of which is of no significance to the issues in the proceedings. The problem has been compounded, not alleviated, by the exponential growth of electronic communications which can be tracked and often reconstructed after deletion.”

3.59 The sheer volume of data that must be managed in modern trade and commerce can blow out the cost of searching through electronic material for the purposes of discovery, resulting in costs disproportionate to the value of the documents discovered—in terms of their use in the litigation. The increasing amount of information which contemporary litigants must deal with was recently highlighted in Betfair v Racing New South Wales. In this case, one source of discoverable documents is ‘an electronic data warehouse containing the electronic records of over 2.52 million customers and occupying some 21 terabytes of memory growing at 70 gigabytes per day’. One terabyte is said to be the equivalent of 500 million printed pages.”

[Citations omitted]

21. The report also cites a warning from Black CJ that courts “need to take a more interventionist role to avoid having trolley loads of documents being wheeled into court when hardly any of them are likely to be referred to and when every page will add to the cost of the litigation.”

22. These concerns about the so-called “distorting effect” of e-discovery expense occurred at a time courts were still using outdated discovery rules created for paper documents only and where delineation of possession of a document (or its absence or destruction) was determined by the presence or absence of a paper record. Unfortunately, these same rules have continued to be applied to electronically stored information. In the course of attempting to apply rules applicable to paper documents to electronic record-keeping, courts have produced judgments which appear to endorse inconsistent approaches to requirements for disclosure (especially in relation to social media, musch of which was in the public arena) and to electronic record-keeping generally.

23. Much of this concern was misplaced. E-discovery reduces the time and error factor for discovery because software tools can search far faster and more effectively, and e-discovery is increasingly common in the superior courts. This is, however, only slowly being recognised as part of the changing nature of discovery. One of the few examples of new rules is the Federal Court's Practice Note CM6: Electronic technology in litigation, an order may be made for discovery in electronic format in cases involving 200 documents or more. However, those few discovery rules currently dealing with electronic discovery must now cope with even more sophisticated methods of document analysis. In McConnell Dowell Constructors (Aust) Pty Ltd v Santam Ltd & Ors (No. 1) [2016] VSC 734, Vickery J approved predictive coding as an appropriate process for managing a large e-discovery (the recent Victorian Supreme Court Practice Note “Technology in Civil Litigation Practice Note SC Gen 5” now permits the general use of this procedure but other jurisdictions have not regularised this process).

24. Despite these profound changes to the methods of record-keeping, there is little or no statutory guidance for electronic discovery in this court. I particularly note:

1. While litigants in the Supreme Court of New South Wales have been able to use Practice Note SC Gen 7, “Supreme Court - Use of Technology” for a decade since its introduction in 2008, this Practice Note does not apply to this court. The only advice provided to practitioners in this court (at paragraph 11 of the Standard Orders for Hearing)is a requirement for practitioners to consult the “Information Sheet – Presentation of Electronic Evidence” to ensure that CCTV, “data files” and DVDs are compatible with court equipment if they are to be played in court. Advance warning of such a requirement must also be given as many civil courts do not have AVL facilities.

2. Amendments to the UCPR to deal with e-documentation are very limited. UCPR Pt 21 has not been updated to adapt discovery to electronic technology, which places litigants in this court in a difficult position given the absence of a Practice Note. There are provisions for electronic filing of pleadings in UCPR Pt 3 but there are no procedures for the accurate recording of orders, leading to problems of the kind identified in Cyril Smith & Associates Pty Ltd v The Owners-Strata Plan No 64,970 (No 2) [2011] NSWCA 245 at [16] – [17] and Tarrant v Statewide Secured Investments Ltd [2011] NSWCA 248 at [6]. The apparent inconsistency between UCPR r 31.10 and any requirement for advance warning of an intention to serve the opposing party’s own social media (as is likely in a case such as this) has not received appellate guidance.

3. There are no provisions of assistance in the Defamation Act 2005 (NSW), which refers to “electronic” communication only in relation to a s 32 defence.

25. Fortunately, despite these significant gaps in the legislation and case management Practice Notes, the relevant principles were set down more than a decade ago in a series of practice decisions such as Yarra Creek Central Packing Shed Pty Ltd v Amcor Limited [2006] FCA 1802, where Tamberlin J noted (at [12]) the use of software capable of analysing large amounts of metadata “in a matter of seconds”. The principles set out in these early judgments, which are still relevant today despite the profound changes in technology over the last decade, may be summarised as follows:

1. Discovery requires production, not creation, of documents. I drew the parties’ attention to the decision of McCallum J in El-mouelhy v QSociety of Australia Inc (No 4) [2015] NSWSC 1816 where her Honour held that a party was not obliged to discover Google analytics (but note her Honour’s observations of there being a contrary view Ange v Fairfax Media Publications Pty Ltd [2012] NSWSC 1200 at [49] to [53]).

2. Production can require production of what seems like a significant number of documents including metadata, but if there are technical hurdles to obtaining full access, orders can be made for this to be done through predictive coding or other search software.

3. A discovering party will not generally be required to expend significant sums to change or create documents in the most usable form merely at the request of the party seeking discovery: Schutz DSL (Australia) Pty Ltd v VIP Plastic Packaging Pty Ltd (No 15) [2012] FCA 781. That is particularly relevant in the present case.

4. Where a party claims to have lost electronically stored information, they will be required to make the same or similar searches as they would make for a physical document. If a party has deleted electronically stored information or destroyed the document which stored it, courts may make orders which will include the striking out of the proceedings: Palavi v Queensland Newspapers Pty Ltd [2011] NSWSC 274 (see also Palavi v Radio2UE Sydney Pty Ltd [2011] NSWCA 264).

UCPR Pt 21 and the obligations for electronic discovery

26. The requirement is to discover material in the “possession, custody or power” of a person, which extends to agents or other persons from whom the party against whom discovery is sought has the right to seek recovery of the material. That is a straightforward exercise where the discovery order seeks, for example, documents in the possession of an accountant or employer for a party, but what does “in the possession of” mean where the documents in question are electronic? Does the nature of electronic publication mean that it is assumed to last forever? Consideration of these cases shows that the courts will not be unduly suspicious just because the documents are electronic in nature, and that the determination of this question is a fact-driven exercise.

27. A typical example is the application for further and better discovery brought in Kaji Australia Pty Ltd v Glover (No 2) [2018] NSWSC 414. The party against whom orders for further discovery was sought provided an affidavit stating he no longer had access to documents or electronic records and did not know the current whereabouts of the server, both of which were challenged as implausible, since the non-producing party ran a business using a computer. However, Davies J accepted the non-producing party’s explanation that he left his former office premises in a hurry after learning, following an attempted home invasion and news reports, that his co-tenant was involved in the Mafia. The producing party was afraid to contact his former tenant in those circumstances, even in relation to hard copies of the documents, and he could no longer produce electronic records either. In those circumstances, a subpoena to the former co-tenant for any documents in its possession was considered more appropriate than an order for discovery.

28. Decisions such as this underline the common sense approach courts should take to discovery where a party is required to produce the documents falling within the categories for discovery. It should not be an onerous task, but neither is it a task to be approached on the basis of producing as little as possible, or by taking too literal an interpretation of the requirement for the document to be in the party’s actual possession as opposed to being on a computer or in a deactivated Facebook account requiring a password to reactivate.

What “reasonable search” should be made for electronic records?

29. This is essentially a fact-driven exercise, where consideration is given not only to the costs involved but also the accessibility of the document. In Construction, Forestry, Mining and Energy Union v BHP Coal (No 2) [2017] FCA 1539, Collier J sets out relevant principles in relation to an application to search email boxes the contents of which were automatically archived after six months and would require expert intervention to be recovered. Such a search would be oppressive.

30. In the present case, that requires the plaintiff to obtain electronic records from the family computer, his Facebook account and any other record he may be able to obtain from such sources which fall within the categories sought.

31. There was an order made for statements in these proceedings, and the plaintiff’s statement has been provided. It is clear that he will wish to tender a number of Facebook entries from his own account, such as the attempts by journalists and friends to contact him about the photograph and extracts from the email account associated with his Facebook account. In addition, correspondence recording his school’s interaction with his parents concerning the desirability of home schooling may be discoverable.

Inspection

32. Rule 21.4 UCPR still presupposes the discovery of documents in “hard copy” form and makes no special provision for electronic discovery. The Supreme Court Practice Note (at paragraph 19) makes provision for inspection where the documents exist only in electronic form.

33. Unfortunately, in cases such as the present, where the relevant extracts from the plaintiff’s Facebook account exist only in electronic form, these will probably have to be printed out unless some form of agreed electronic inspection of the relevant portion can be worked out.

Other conflicts between traditional discovery rules and electronically stored information

34. Some of the procedures currently in place, such as UCPR r 21.3(2)(a)(ii) which limits the obligation to list missing documents to 6 months prior to commencement of proceedings, were intended to ease the burden of production of “hard copy” documents. Although the rule seems more honoured in the breach than in the observance (in that it was no assistance to Ms Palavi), it effectively sanctions the destruction or non-production of documents by a party who knows that proceedings may well be commenced in the future. Its purpose was presumably to lighten the otherwise onerous load of searching for documents which are clearly relevant to the issues but which may make the burden of discovery onerous and expensive.

35. However, the nature of electronically stored information is that it can exist forever and, if the right searches are used, be readily available. The tender of CCTV footage, social media and emails is now routine, and the usefulness of rules written by persons unaware of basic computer search engine functions deserves reconsideration.

36. In the present case, proceedings were commenced on 12 July 2016 concerning a publication made on 21 July 2015. This would mean that only those documents the plaintiff actually kept from 12 January 2016 would be discoverable, and that the vast bulk of social media records, emails and other electronically stored information for the relevant period (namely at the time of publication) relating to the matter complained of would simply not be discoverable. However, if they are still in existence on the computer, the fact that they are no longer in the plaintiff’s physical possession makes it hard to argue that the documents have passed from his possession.

Conclusions as to the discoverability of the plaintiff’s electronically stored records

37. Mr Rasmussen’s position is that his client is a teenager who does not own a mobile phone, does not own a computer (although his family does) and has no social media beyond a deactivated Facebook account. In those circumstances, he contends, there is nothing to discover apart from printed copies of the other matters complained of (although, if these have left his possession in the six months before proceedings were commenced, not even these documents are discoverable).

38. Upon it being pointed out that “deactivated” is not “deleted”, Mr Rasmussen submitted that if the plaintiff could no longer remember his Facebook password, there was nothing to be done. That is not the end of the matter; the procedure set out on the Facebook website for the recovery of the deactivated account must be followed, so that a fresh password is allocated to the plaintiff.

39. The same principles which apply to the making of reasonable inquiries for paper documents apply to electronically stored information. A party obliged to make discovery should search diligently to identify all discoverable documents in, or which had been in, the party’s possession, custody or power. What are reasonable inquiries will depend on the circumstance of each case including the necessity for the discovery. It is not necessary to go to such lengths as would be oppressive: Re McGorm; Ex parte Cooperative Building Society of South Australia (1989) 20 FCR 387; Cazaly Iron Pty Ltd v The Hon John Bowler MLA, Minister for Resources [2006] WASCA 282.

40. The deactivated Facebook page was quickly able to be brought up in court, and the procedure for accessing an account for which the password has been lost and for downloading the contents of a Facebook account are clearly explained on the Facebook website.

41. The same is the case for any school records of relevance, whether on the plaintiff’s family’s computer or in hard copy. If those records are in hard copy, the fact that they have been discarded more than six months before the litigation does not mean that the electronic version is no longer discoverable either.

Other discoverable records: other defamation proceedings

42. This is one of four defamation actions commenced separately by the plaintiff. One of those four actions has settled; two are to proceed with a jury and one is to proceed without a jury. Although they have been case managed together, Mr Rasmussen submits that they remain separate claims and that the discovery of documents from one set of proceedings in another could amount to contempt of court: Hanrahan v Ainsworth (1990) 22 NSWLR 73 (see also UCPR r 21.7).

43. Examination of these claims against the background of the plaintiff’s statement quickly demonstrates that the plaintiff does in fact have material to discover and that the potentiality for contempt of court is more imagined than real. Having regard to the principles for mitigation of damages in relation to other defamation awards as set out in s 38 Defamation Act 2005 (NSW), it is appropriate to discover the pleadings in those claims, as well as publications. If the confidentiality claims concerning the settlement of the Daily Mail proceedings cannot be resolved, the plaintiff should still list these documents and the issue of confidentiality can be raised at the inspection stage.

Costs

44. As the defendant was successful in relation to the revised requests for discovery, costs should follow the event.

Orders

1. Note the plaintiff’s discovery issues have been resolved by reason of the Category 2 documents being no longer in dispute.

2. The plaintiff is to discover the following (or if he no longer has a document in his possession, set out the relevant information in Schedule 2 consistent with r 21.3(2)(a)(ii) Uniform Civil Procedure Rules 2005 (NSW), in 28 days:

Categories 1, 2, 5 and 6:

1. Other matters complained of the subject of proceedings;

2. Email, posts and messages from the plaintiff’s deactivated Facebook account recording or referring to social media posts, news articles and webpages concerning the plaintiff’s haircut;

3. Email, posts and messages referred to or identifiable in the defendant’s particulars of the facts and matters relied upon in paragraph 8.3 in relation to the defence of honest opinion and paragraph 10 in relation to the defence of justification.

Category 3 – In addition to the above, documents referring to or concerning the Matter Complained Of, the subject matter of the Matter Complained Of and/or the plaintiff’s haircut (including but not limited to the concerns notices and replies).

Category 4 – Documents referring to or concerning any communications or other contact between the plaintiff and/or any person on his behalf and news media organisations concerning an interview about the plaintiff’s haircut, including but not restricted to concerns notices and replies to those news media organisations.

Category 7 – All documents evidencing, referring to or concerning any communications or other contact between the plaintiff and/or any person on his behalf, and any school or other educational institution or authority (or any servant or agent thereof) concerning the Matter Complained Of, the subject matter of the Matter Complained Of or the plaintiff’s haircut.

3. Defendant to give discovery in 14 days.

4. Plaintiff to pay the defendant’s costs of the argument today.

5. Matter stood over to the Defamation List on Thursday 3 May 2018 for further directions.

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Decision last updated: 03 May 2018