Craig v Slater

[2017] NZHC 740

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-1923 [2017] NZHC 740

UNDER

Defamation Act 1992

BETWEEN

COLIN GRAEME CRAIG
Plaintiff and Counterclaim Defendant

AND

CAMERON JOHN SLATER First Defendant

SOCIAL MEDIA CONSULTANTS LIMITED

Second Defendant

Hearing:	10 April 2017
Appearances:	Mr Craig in person Mr B Henry for defendants
Judgment:	10 April 2017

ORALJUDGMENT OF ASSOCIATE JUDGE J P DOOGUE [Retrieval of deleted data]

CRAIG v SLATER & Anor [2017] NZHC 740 [10 April 2017]

[1]      Mr Slater has stated in the course of discovery that a number of documentary items that would otherwise have been reviewed for discoverability have in fact been deleted.  Mr Slater says that his emails have been stored on a Google server and that in accordance with a standing computer “rule” or instruction documents over a certain    age    have    been    automatically    deleted.        It    is    accepted    for Mr Slater that some of those documents pre-date the commencement of proceedings in this matter but some post-date the start of this case in 2015.

[2]      Mr B Henry on behalf of Mr Slater told me that Mr Slater has had advice from a computer consultant that the deleted documents cannot now be retrieved. Mr Henry told me that  his appreciation of the situation was that the emails in question were never saved onto the drive of a local computer.

[3]      Mr Craig very much at the eleventh hour has filed an application dated 20

March 2017 seeking orders:

2.1That the defendants may not delete any further documents that may in any way be relevant to this proceeding and disable any software automatically deleting data.

2.2That within 10 working days, the defendants, make available to a computer expert their cell phones and computers for examination and that the expert take the following actions.

[4]      There are also sub-paragraphs setting out further details of the orders that are sought.   The documents that he says have been deleted or are at risk of deletion include:

i.         Emails  between  Mr  Slater  and  other  persons  that  are  of  and concerning  Mr  Craig  (for  the  period  23  August  2014  and  13

December 2015) including but not limited to:

i.    Peter Belt, Stephen Cook and any other staff or contractors at the Whaleoil blog site;

ii.   Media;

iii.  Mr Jordan Williams.

ii.        Phone records or text messages between Mr Slater and other persons that are of and concerning Mr Craig (for the period 23 August 2014 and 13 December 2015) including but not limited to:

i.    Peter Belt, Stephen Cook and any other staff or contractors at the Whaleoil blog site;

ii.   Media;

iii.  Mr Jordan Williams.

[5]      I mentioned that the application has been made at the eleventh hour.   The reason for that is that the trial of the substantive defamation proceedings is scheduled to commence on 8 May 2017.

[6]      Mr Craig did not refer to a particular rule as being the basis upon which he sought such orders.  He has described his application as being for further and better discovery.

[7]      Mr Henry besides pointing out that the documents cannot be retrieved, as he is instructed is the case, said that some of these documents can in any event be obtained by secondary means.  He said that some of the documents that Mr Craig seeks to have discovered, but which have been deleted related to communications between Mr Slater and Mr Williams and Mr Stringer.   Mr Henry says that part of the missing documents can be recovered from those persons.

[8]      Mr  Henry  told  me  that  the  procedure  for  deleting  the  documents  is  an automatic one that had been set up in advance of the present proceedings starting. He agreed with me however that just as the process could be initiated by Mr Slater, presumably it could have been countermanded by him.

[9]      The  argument  that  Mr  Craig  put  forward  drew  support  from  what  had happened in other proceedings that he had been involved in.  In his litigation against Mr Stringer a similar problem emerged with deletion of documents that Mr Stringer had held.  Mr Craig applied for orders from the High Court in relation to the loss of documents in that case.  In a judgment which Associate Judge Matthews gave in that proceeding1 the Judge noted that there had been deletion of documents and directed Mr Stringer to:

Take such steps as are necessary to gain access as soon as practicable to the inbox/outbox of his computer to the extent required for this exercise and Mr Craig is to cooperate in all material respects with this exercise given his undertaking to pay the reasonable cost and his identification of an expert able to undertake this task.2

[10]     The background for the comments which the Judge made in that case was this.  Mr Craig on being told that Mr Stringer had deleted documents and could not, even with expert assistance, obtain access to his email inbox/outbox (which Mr Craig said was locally located on an Apple computer) had offered to Mr Stringer at his own expense to have another expert look at the problem.  The Judge’s order that I have quoted above was to give effect to this offer and to require Mr Stringer to comply with it.

[11]     The issue that had emerged in the Stringer litigation is technically different from the present one.  It appears to have involved inability on the part of Mr Stringer to “access” his inbox or outbox to obtain copies of emails.  The term “access” was used by Mr Craig, I am not sure that it has any particular technical significance.  The only reason I mention these matters is that there may be different technical issues involved in this case.  However if the basis of principle upon which Matthews AJ made his order is sustainable then any technical differences of this kind would not seem to be of critical importance.

[12]     The judgment that Matthews AJ gave did not contain any detailed discussion of matters of principle.   It may be that he was not required to do so and that the parties may not have disputed the power of the Court to make such an order.   I gather, though, that he did not make his orders on a consent basis.

[13]     In this case, Mr Henry has told me that he does not have instructions to consent to a proposal of the kind which Mr Craig has now made.

[14]     The situation that has been alleged here and which is not materially denied by Mr Slater would seem to have involved a breach of HCR 8.3 which provides as follows:

[8.3     Preservation of documents

(1)       As soon as a proceeding is reasonably contemplated, a party or  prospective  party  must  take  all  reasonable  steps  to preserve documents that are, or are reasonably likely to be, discoverable in the proceeding.

(2)       Without limiting the generality of subclause (1), documents in electronic form which are potentially discoverable must be preserved in readily retrievable form even if they would otherwise be deleted in the ordinary course of business.]

[15]     Part 8 of the High Court Rules does not expressly provide a remedy in cases where there has been a failure to obtain documents pursuant to HCR 8.3.   It is unlikely that it was intended that a party could breach HCR 8.3 without their being some repercussions for doing so.  However in the present case the focus is on a more practical concern, attempting to undo any illegitimate procedural disadvantage that may have been done to Mr Craig by the loss of documents that Mr Slater had deleted.  Mr Craig did not refer me to any statutory provision or decided case which would justify the Court making directions of the kind that he seeks.  But it can be said that in cases where there has been a deletion of documents it would seem to be unlikely that making an order for particular discovery would advance matters to any useful extent.

[16]     In  another  part  of  the  High  Court  Rules  though  there  is  provision  for inspection of property.3   That Rule provides as follows:

9.34     Order for inspection, etc

(1)      The court may, for the purpose of enabling the proper determination  of any matter  in question  in a  proceeding, make orders, on terms, for—

(a)       the inspection of any property:

(b)      the taking of samples of any property: (c)  the observation of any property:

(d)      the measuring, weighing, or photographing of any property:

(e)       the  conduct  of  an  experiment  on  or  with  any property:

(f)       the observation of a process.

(2)       An order may authorise a person to enter any land or do anything  else  for  the  purpose  of  getting  access  to  the property.

(3)       In this rule, property includes any land and any document or other chattel, whether in the control of a party or not.

[17]     The  purpose  of  the  rule  is  “for  the  purpose  of  enabling  the  proper

determination of any matter in question in a proceeding”.

[18]     There is no doubt that communications between Mr Slater and third parties such as the media organisations, Mr Belt (who I have referred to in a previous judgment) and Mr Stephen Cook may well be documents which cast light on the matters in dispute in the current defamation proceedings which will involve consideration of defences of truth, honest opinion and qualified privilege.

[19]     HCR 9.34 is conventionally used to order the examination of a machine, device or something of that kind and make observations of it.   The accessing of computer drives, which may provide helpful evidence of documents stored on them, would not seem to be outside the purview of the permissible uses the Rule can be put to.    While  Mr  Slater  has  obtained  his  own  experts  opinion  on  what  if  any documentary information can be retrieved  from the computer, it does not seem reasonable          that          that          should          be          conclusive          from Mr Craig’s point of view.  I am of the view that it is fair and in the interests of justice that he should be entitled to arrange examination by his own expert.  It may be that, contrary to the views of Mr Slater and his expert, that documents can be retrieved.

[20]     There should be conditions attached to that inspection.  The primary order would be one that the defendant is to make available for inspection any computers which are then to be identified by name through which a document saved on the Goggle servers might have been retrieved and through which documents might have been  transmitted  to  the  same  servers.    Such  computers  could  be  inspected  by Mr Craig’s nominated expert and that any such inspection should be able to be observed by Mr Slater’s own expert, if he so chooses.   There would also be a requirement that the observations made by the expert and any report and notes based

upon that inspection are to be confidential and are not to be disclosed other than to the expert’s client, Mr Craig.

[21]     It will be observed that the entitlement of the expert is to report on what, if any, documents can be retrieved.  If any documents are able to be retrieved then the expert is to exchange with Mr Slater’s expert how that result is to be accomplished. Thereafter any documents that are actually retrieved would of course be subject to the usual continuing requirements on the parties to the litigation to give discovery of documents in their possession, custody or control.

[22]     There may be additional conditions besides those that I have ordered in this judgment.   The parties are to confer within the next two days and I will consider what if any further conditions should justifiably be attached to the order that I have made in this judgment.  The costs on this particular application are reserved.