Roohizadegan v Technology One Limited

Case [2019] FCA 1145

FEDERAL COURT OF AUSTRALIA

Roohizadegan v Technology One Limited [2019] FCA 1145

File number: VID 996 of 2016
Judge: WHEELAHAN J
Date of judgment: 25 July 2019
Catchwords: DISCOVERY – application for order for production and examination of electronic data – where prior orders made for discovery of categories of documents – allegation by the respondents of inadequate discovery by applicant – dispute as to the extent of discoverable documents in applicant’s possession – speculative evidence as to quantum of discoverable documents – insufficient evidence of intention to withhold discovery for strategic advantage – qualified nature of discovery obligation – insufficient justification for forensic examination of electronic devices
Legislation:

Fair Work Act 2009 (Cth) ss 23, 340(1)(a)(ii) and (iii), 351, 352

Federal Court of Australia Act 1976 (Cth), s 23

Federal Court Rules2011 (Cth) Div 7.5, rr 7.44, 20.14(1), 20.15(1)(a), 20.17(2)(b), Div 20.2
Cases cited:

Findex Group Ltd v McKay [2019] NSWCA 93

Long v Specifier Publications Pty Ltd (1998) 44 NSWLR 545

Metso Minerals (Australia) Ltd v Kalra (No 3) [2008] FCA 1201

Microsoft Corp v Goodview Electronics Pty Ltd [1999] FCA 754; 46 IP 159

Dates of hearing: 21 May, 16 July 2019
Registry: Victoria
Division: Fair Work Division
National Practice Area: Employment & Industrial Relations
Number of paragraphs: 80
Counsel for the Applicant: Mr M. Harmer
Solicitor for the Applicant Harmer Workplace Lawyers
Counsel for the Respondents: Dr M. Spry
Solicitor for the Respondents: Cooper Grace Ward

ORDERS

VID 996 of 2016
BETWEEN:

BEHNAM ROOHIZADEGAN

Applicant
AND:

TECHNOLOGY ONE LIMITED

First Respondent

ADRIAN DI MARCO

Second Respondent

JUDGE:

WHEELAHAN J

DATE OF ORDER:

25 JULY 2019

THE COURT ORDERS THAT:

1.The parties confer and submit an agreed minute of orders by 4.00pm today.

2.Costs of paragraph 4 of the respondents’ amended interlocutory application filed 24 May 2019 be reserved.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

  1. The respondents have applied for a special order for the production of electronic data by the applicant, the terms of which I shall explain below.

  2. On 18 May 2016, the first respondent terminated the applicant’s employment. At that time, the applicant was employed by the first respondent as its Victorian State Manager. By his further amended statement of claim the applicant alleges, among other things, that the first respondent terminated his employment because he had exercised or proposed to exercise workplace rights, including the assertion of a contractual entitlement to receive certain incentive payments. In the alternative, the applicant alleges that the first respondent terminated his employment because he suffered a mental disability. In the further alternative, the applicant alleges that the first respondent terminated his employment because he was temporarily absent from work because of illness or injury. The applicant alleges that the termination of his employment was therefore in contravention of s 340(1)(a)(ii) and (iii), s 351, and s 352 of the Fair Work Act 2009 (Cth) (the Act),…

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Roohizadegan v Technology One Limited [2019] FCA 1145
Case
[2019] FCA 1145
Decision Date

CaseChat Overview and Summary

The matter of Roohizadegan v Technology One Limited involved a dispute between the applicant, Roohizadegan, and the respondents, Technology One Limited, concerning the discovery of electronic data. The respondents sought an order for the production and examination of electronic devices, alleging inadequate discovery by the applicant. The Federal Court was tasked with determining whether the applicants had adequately disclosed relevant documents and whether forensic examination of electronic devices was justified.

The primary legal issues centred on the adequacy of the applicant's discovery process and whether there was sufficient justification for a forensic examination of electronic devices. The respondents argued that the applicant had not fully disclosed relevant documents, while the applicant contended that the respondents' requests exceeded the scope of relevant discovery. Additionally, the court had to consider whether the qualified nature of the discovery obligation and the speculative nature of the respondents' evidence warranted a forensic examination of electronic devices.

In its reasoning, the Court noted discrepancies in the evidence regarding the disposal of the applicant's main work laptop, which raised questions about the completeness of the discovery process. The Court found that the respondents' evidence was speculative and did not sufficiently demonstrate an intention to withhold documents for strategic advantage. Furthermore, the Court held that the qualified nature of the discovery obligation did not justify the forensic examination sought by the respondents. Consequently, the Court refused to make an order for the forensic examination of electronic devices.

The Court ordered the parties to confer and submit an agreed minute of orders by a specified time, and reserved costs associated with the respondents' amended interlocutory application.

Orders

Orders of the court

1. The parties confer and submit an agreed minute of orders by 4.00pm today.

2. Costs of paragraph 4 of the respondents’ amended interlocutory application filed 24 May 2019 be reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For their part, by their amended defence the respondents deny that they contravened the Act, and the first respondent denies the applicant’s claims in respect of the alleged entitlement to incentive payments.Relevant procedural background On 21 December 2018, the Court made orders providing for the exchange of proposed categories of documents, for the notification of objections to categories, and for the discovery and production of non-privileged documents. The Court recorded that the parties had agreed upon a protocol in relation to access by the respondents to documents that had been produced on subpoena by several of the applicant’s medical practitioners. The Court also fixed the proceeding for trial, commencing 7 October 2019. The parties thereafter exchanged categories of documents that they sought. In a letter dated 14 January 2019 the respondents’ solicitors sought as their category 23 –The hard drive of all computers that contain emails, file notes or any other documents referred to in items 1 to 22 above. By letter dated 18 February 2019 the applicant objected to making discovery of hard drives on the grounds that it was fishing, and went beyond the scope of what was relevant to the proceeding, and referred to Part 10 of the Court’s Practice Note CPN-1 in relation to discovery. On 1 April 2019, the respondents filed an application by which they sought, among other things, an order that the applicant make available for forensic examination, inspection and copying, hard drives of computers and USB storage devices that contain emails, file notes or any other documents referred to in categories of documents which the respondents sought from the applicant by way of discovery. This was one of a number of applications made at that time by the parties relating to discovery, claims for privilege against production, and access to documents produced on subpoena. The hearing of the parties’ applications commenced on 21 May 2019, and was adjourned part-heard to 4 June 2019. Subsequently, the parties requested that the hearing be further adjourned, and it resumed on 16 July 2019. During the course of the hearing on 21 May 2019 I referred some of the applications to a Registrar of the Court, and other applications have been resolved by agreement between the parties. What remains before me is the respondents’ application that the applicant make electronic devices available for forensic examination, inspection and copying. At the hearing on 21 May 2019 I indicated that I would not make an order of this type in the form then sought by the respondents, as the order that was then sought afforded no protections to the applicant in relation to the confidentiality of the data. Consequently, the respondents sought and obtained leave to file an amended interlocutory application. By their amended interlocutory application filed 24 May 2019 the respondents sought orders the material features of which are summarised as follows –(1)the applicant deliver to the premises of his solicitors all computers, hard drives, USB or other electronic data storage devices within his possession or control and which contain or which contained any of the “Listed Things” referred to in a schedule to the amended application;(2)the “Listed Things” referred to in the schedule are defined by reference to categories of documents which correspond to some of the categories of documents in the respondents’ list of documents dated 14 January 2019, which were the categories of documents that the respondents requested the applicant to discover;(3)an independent computer expert be permitted to make digital copies of the data;(4)the applicant is to provide any passwords that are necessary to access the data;(5)the independent computer expert is to provide digital copies of the contents of the electronic devices to an independent lawyer together with a report of what the expert has done, and an analysis of the electronic storage devices;(6)the independent lawyer is to search for the “Listed Things” and serve on the parties a copy of the independent computer expert’s report, including an analysis of the electronic storage devices and the material and documents comprising the “Listed Things”;(7)no provision was made in the orders sought by the respondents for the applicant to object to the production of documents by the independent solicitor; and(8)a number of undertakings were proposed, including an undertaking as to damages by the first respondent, and an undertaking by the respondents’ lawyer to pay the costs of the independent computer expert and the independent lawyer.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Finally, Mr Harmer informed the Court that he had instructions from the applicant to agree to an order that the applicant provide the material to his firm, and that the applicant’s solicitors would assess documents on the devices against the categories of documents that were sought by the respondents. It appeared to me during exchanges that Mr Harmer was not familiar with the content of the four USB devices referred to under [23] above that were identified as containing discoverable documents. Such an inspection would not involve a “forensic examination” of the devices, which was contemplated by the orders sought by the respondents.Consideration The evidence before the Court on this application raises a number of questions which are unresolved, and which it is not possible to resolve in the context of the current interlocutory application. A significant issue that arises on the evidence is the applicant’s instructions to his solicitors that in November or December 2018 he disposed of his main work laptop computer, namely the Toshiba Z930, by giving the laptop to his wife for donation to the Salvation Army. There are a number of anomalies in the evidence before the Court in relation to that account. Those anomalies include –(1)Until Mr White’s affidavit of 15 July 2019, there was a consistent reference in the material to the applicant’s laptop, which must be understood as being a reference to the Toshiba Z930 laptop which the applicant had with him in Brisbane at the time of termination of his employment on 18 May 2016, and which was described in the material as his main work laptop.(2)Until Mr White’s affidavit of 15 July 2019, there was no suggestion that the Toshiba Z930 laptop had ceased to function, or that the applicant had disposed of it. On the contrary, by the letter of the applicant’s solicitors dated 23 November 2019 the applicant asserted a right to retain the laptop.(3)There was no suggestion in Ms Sutherland’s affidavit of 29 April 2019 that the applicant had made discovery of documents from an LG Ultrabook laptop. On the contrary, paragraph [53] of Ms Sutherland’s affidavit asserts that the laptop from which documents were discovered was a laptop given to the applicant by the first respondent in about 2014 and which he had used for work purposes and which the other evidence establishes was the Toshiba Z930 laptop.(4)During the course of submissions on 21 May 2019 Mr Harmer, the solicitor for the applicant, referred to the applicant’s computer in the following passage (T76/33-37) –… as I understand it, the emails that he kept, he maintained on the hard drive of his computer at home, including for the purpose of working at home, and it’s that computer that he was – when I say “his computer”, the computer that he was working on, he was permitted to retain, contents, by the company when he finalised work. Now - - -(5)During the course of submissions on 17 July 2019 Mr Harmer referred to the applicant’s level of “hyper-vigilance” (T64/36-38). If one were to accept that to be the case, one would have to reconcile that frame of mind with the disposal of a laptop computer by donating it to the Salvation Army in circumstances where the applicant has claimed that the laptop held personal information.