Grishin v Bowie - [2021] NZHC 3348

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2020-485-000757

[2021] NZHC 3348

BETWEEN
SERGEY GRISHIN

Applicant

AND

JOHN BOWIE

Proposed Defendant/Respondent

Judgment: 8 December 2021

(Determined on the papers)

JUDGMENT OF GENDALL J

This judgment was delivered by me on 8 December 2021 at 12.00 pm Pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date

GRISHIN v BOWIE [2021] NZHC 3348 [8 December 2021]

Introduction

[1] On 27 May 2021 I gave a judgment in this proceeding granting the application by the applicant for pre-commencement discovery orders against the respondent.

[2] Those orders required the respondent to serve an affidavit of documents on the applicant by 25 June 2021 and to make the documents in question available for inspection by 9 July 2021.

[3] The applicant says the respondent has failed to comply with those orders. On 30 September 2021 the applicant filed in this Court an Application for Inspection and Related Orders (the Inspection Application) together with a supporting affidavit of Ella Arbuckle Page, affirmed 30 September 2021. Subsequently a further affidavit of Elizabeth Annette Keall affirmed 17 November 2021 in support of this application was filed. All documents as I understand it have been served on the respondent.

[4] Submissions on behalf of the applicant in support of the Inspection Application dated 17 November 2021 have now been filed. Submissions in response from Mr Bowie, the respondent, dated 1 December 2021 have also been filed. Brief reply submissions from the applicant dated 2 December 2021 have also been filed.

[5] All these matters have been referred to me now and, having had an opportunity to consider all the material filed, I give my decision on the Inspection Application.

The Inspection Application

[6] The applicant’s 30 September 2021 Inspection Application specifically sought orders that:

(a)within 10 working days, the respondent make available and provide access to a forensic technology expert nominated by the applicant, his computer(s) and any other data repositories (eg USB drive, Cloud- based email, Cloud-based file storage etc) for examination on behalf of the applicant;

(b)during the examination such expert may download and take copies in their native file format (that includes the metadata, eg. msg or .eml files for emails, .docx, .doc or .wpd for word processed documents) of all documents encompassed by the discovery orders made by the Court on 27 May 2021. Such documents may include the original emails, attachments and other documents that have already been disclosed or referred to by the respondent and any other documents that are subject to the orders;

(c)the examination to take place at the offices of Simpson Grierson in Wellington;

(d)the respondent and a solicitor on behalf of the applicant may be present during the examination;

(e)the expert is permitted to request the respondent to use the built-in search function of the computer system(s) and other electronic mediums to assist in locating all documents;

(f)the expert is permitted to take notes of their…

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 Grishin v Bowie

Details

AGLC: Grishin v Bowie [2021] NZHC 3348
Case: [2021] NZHC 3348
Decision Date: 8 December 2021

CaseChat Overview and Summary

In Grishin v Bowie, the applicant, Sergey Grishin, sought pre-commencement discovery orders against the respondent, John Bowie. The court had previously granted these orders, requiring Bowie to serve an affidavit of documents and make them available for inspection by certain dates. Grishin alleged that Bowie failed to comply with these orders. Consequently, Grishin filed an Application for Inspection and Related Orders, seeking further specific orders regarding the inspection of Bowie's electronic devices and documents. The application included requests for access to Bowie's computers and other data repositories, the appointment of a forensic technology expert to examine these devices, and various procedural details for conducting the examination.

The legal issues the court had to decide were whether the orders sought by Grishin were justified and appropriate given the previous orders made by the court. The court needed to assess whether the inspection was necessary to ensure compliance with the earlier discovery orders and to ascertain if any privilege issues could be appropriately managed during the inspection. Additionally, the court had to consider the practicality and reasonableness of the proposed inspection procedures, including the appointment of a specific expert and the costs associated with the inspection.

The court concluded that the applicant had demonstrated proper grounds for making the inspection and related orders. The court found that the inspection was necessary to ensure compliance with the earlier discovery orders and that any privilege concerns could be managed through the redaction process. The court accepted the applicant's proposal to appoint Campbell McKenzie as the forensic technology expert, given his expertise and independence. The court also noted that the costs of the inspection would be borne by the applicant, as intended. Therefore, the court granted the Inspection Application in its entirety, including the appointment of the expert and the specified inspection procedures.

The court ordered that the inspection and related matters proceed as requested by Grishin, with specific attention to the procedural details outlined in the application. Regarding costs, the court ruled that Grishin was entitled to costs against Bowie on a category 2B basis, along with any approved disbursements.

Orders