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.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Craig v Slater

Details

AGLC: Craig v Slater [2017] NZHC 740
Case: [2017] NZHC 740
Decision Date: 10 April 2017

CaseChat Overview and Summary

In the case of Craig v Slater, the High Court of New Zealand considered an application by the plaintiff, Colin Graeme Craig, to compel the defendant, Cameron John Slater, to disclose certain documents that had allegedly been deleted. The case involved a defamation claim brought by Craig against Slater and another defendant, with Slater having deleted emails and other documents that were potentially relevant to the proceedings. Craig sought orders to prevent further deletion of documents, to allow his expert to inspect Slater's computers and cell phones, and to recover the deleted documents. The court found that Slater had breached the rules regarding the preservation of documents, and that Craig was entitled to an inspection of Slater's devices by his own expert, subject to certain conditions. The court also found that the purpose of the inspection was to determine whether any documents could be retrieved, and that any retrieved documents would be subject to the usual discovery requirements.

The legal issues in the case centred around the court's power to order the disclosure of documents that had been deleted, and whether such an order was appropriate in the circumstances. The court found that while there was no specific rule or statute that authorised such an order, it was within the court's inherent jurisdiction to make orders that were necessary to ensure a fair trial. The court also found that the purpose of the inspection was to enable the proper determination of the matters in question in the proceeding, and that the inspection would not be outside the purview of the permissible uses of the relevant rule. The court further found that it was in the interests of justice to allow the inspection, subject to certain conditions, and that the costs of the application were reserved.

Orders