White v James Hardie New Zealand
[2019] NZHC 3459
•19 December 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2015-404-2981 (WHITE)
[2019] NZHC 3459
BETWEEN KAREN LOUISE WHITE AND THE PERSONS LISTED IN SCHEDULE 1
Plaintiffs
AND
JAMES HARDIE NEW ZEALAND
First Defendant
STUDORP LIMITED
Second DefendantJAMES HARDIE NZ HOLDINGS
Third DefendantRCI HOLDINGS PTY LIMITED
Fourth Defendant(Continued next page)
Hearing: 18 December 2019 Counsel:
B Gray QC, A J Thorn and R A Havelock for Plaintiffs in White matter
C M Meechan QC, J K Stewart and C L Gordon for Plaintiffs in Waitakere matter
J A McKay and J I Kerkin for DefendantsJudgment:
19 December 2019
JUDGMENT (NO 5) OF WHATA J
This judgment was delivered by me on 19 December 2019 at 5.00pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date: ………………………….
WHITE AND THE PERSONS LISTED IN SCHEDULE 1 v JAMES HARDIE NEW ZEALAND [2019] NZHC
3459 [19 December 2019]
JAMES HARDIE AUSTRALIA PTY LIMITED
Fifth Defendant
JAMES HARDIE RESEARCH PTY LIMITED
Sixth Defendant
JAMIES HARDIE INDUSTRIES PLC
Seventh Defendant
CIV-2015-404-3080 (WAITAKERE GROUP LIMITED)
BETWEEN WAITAKERE GROUP LIMITED & ORS
Plaintiffs
AND JAMES HARDIE NEW ZEALAND
First Defendant
STUDORP LIMITED
Second DefendantJAMES HARDIE NZ HOLDINGS
Third DefendantRCI HOLDINGS PTY LIMITED
Fourth DefendantJAMES HARDIE AUSTRALIA PTY LIMITED
Fifth Defendant
JAMES HARDIE RESEARCH PTY LIMITED
Six DefendantJAMES HARDIE INDUSTRICES PLC
Seventh Defendant
[1] I have applications before me by the plaintiffs in both proceedings for further discovery orders. This judgment, however, deals with one matter, namely the application for an order:
(a)That each of the defendants individually file and serve, by 28 February 2020 (or such other date as ordered by the Court), sworn affidavits of documents, including all relevant documents, in the control of that defendant (but retaining the existing document ID numbers). Alternatively, the defendants file a joint affidavit which includes all relevant documents and identifies which defendants had control of each document.
[2] With the agreement of counsel, the other applications will be dealt with in this way:
(a)Any amended application or updating memoranda in relation to other discovery matters is to be filed by 14 February 2020;
(b)A fixture in respect of any remaining discovery matter will be set down on the first available date in March.
Background
[3] Given the scale of the discovery in this case, and the tight timetabling of this matter to hearing, it has been necessary to issue this judgment quickly. I therefore do not propose to re-traverse the background in detail. The underlying dispute is described in my previous judgments. I repeat some of it here for ease of reference.
[4] The central claim in the proceedings is that the defendants manufactured, supplied and/or promoted defective exterior cladding products sold under the brand names “Harditex”, “Monotek” or “Titan” (the James Hardie products). Approximately 1,246 properties are claimed to be clad with defective James Hardie products and, of those properties, 1,236 are residential homes, five are commercial buildings and five are retirement villages. The five retirement villages are the plaintiffs in the Waitakere proceedings.
[5] In my judgment of 3 July 2018, I directed that there should be a staged trial, with stage one directed to the issues set out in schedule 1. In summary, stage one will address the following issues:
(a)Who is responsible for the design/manufacture/sale of the James Hardie products and related product information;
(b)Whether the James Hardie products are defective;
(c)Whether the defendants knew/ought to have known about any defects; and
(d)Whether the defendants breached any common law and/or statutory duties in respect of the James Hardie products or James Hardie product information.
[6] After receiving input from the parties, I also made directions about tailored discovery involving three steps:
(a)The parties should attempt to agree on the scope of tailored discovery for the stage one trial;
(b)Failing that, they were to file interlocutory applications for orders for tailored discovery; and
(c)There was to be expert caucusing on the scale of discovery (including the number, location, and type of properties which might be subject to discovery and inspection).
[7] The parties reached agreement on the categories of discovery for the plaintiffs and some categories for the defendants. Caucusing did not go well but, since my judgment (No 2), substantial progress was made in terms of the discovery process.
[8] My judgment (No 2), identified various categories of documents for the defendants to discover.1 I adjourned, however, the application in relation to categories L (records of site visits) and M (advice to customers), pending the outcome of category D (customer complaints) discovery. I also adjourned the application for discovery in relation to categories J (insurance documents), P (licensing agreements) and U (agency, representation, joint venture or similar arrangements) pending the then appeal by the third, fourth and seventh defendants on the justiciability of the claims in respect of those defendants.
[9] My judgment was then followed by a Minute (No 19), dated 13 May 2019. In that minute I record the following (among other things):
[3] ….
(b) The defendants’ discovery is to be provided in accordance with the timetable set out in para 6 of the defendants’ 2 May 2019 memorandum, namely:
17 May 2019 The first, second and third defendant shall provide a further substantial tranche of documents. 24 May 2019 The defendants will provide discovery of any documents relating to testing by other parties in other cases. 17 June 2019 The fourth, fifth and sixth defendants will provide the first substantial tranche of discovery. 16 August
2019
The fourth, fifth and sixth defendants will provide the second tranche of discovery.
The seventh defendant will provide all discovery (subject to any residual discovery, which it may need until 13 September 2019 to provide).
cI
13 September If ne essary, a final tranche of discovery for all the defendants will be provided.
1 White v James Hardie (No 2) [2018] NZHC 2812.
[10] I also provided for a process for resolution in relation to ongoing disputed categories and set down a half-day fixture in respect of those matters for Friday, 27 June 2019.
[11] In my Judgment (No 4) of 4 July 2019, I then made orders requiring discovery of documents in categories J, U and P by the third, fourth and seventh defendants. The following aspects of that judgment are worthy of repetition here:2
[22] The evidential basis for a broad-based discovery about the issue of denial was helpfully summarised by the Court of Appeal when it dealt with the potential liability of the parent entity. It said:
[84] Some things emerge clearly from the affidavits and the documents, and are not really at issue. All of the other defendant companies are wholly owned by JHI, even if owned through other wholly-owned subsidiaries. It is also clear that whilst the James Hardie Group may have diversified during the eighties and nineties, it has always had extensive interest in cement-based businesses and by the late nineties, when JHI took over as parent, it was a Group with a singular business focus upon fibre cement products. Finally, it is clear that the Group coordinates its business across the very many subsidiaries.
[23] After referring to the annual reports, information relating to head office control of global activities, and marketing websites, the Court also observed:
[89] These three threads of evidence provide an evidential narrative that JHI had direct involvement in the manufacturing operations in New Zealand through, at least, its senior executive team. The existence of a top down management structure and the pooling of technical and resource facilities suggests that the JHI executive team had superior knowledge about the technical specifications of the products, and some level of control over the local operations. This view of the way in which the Group operates is corroborated by the evidence of Mr O’Hagan. Although somewhat dated (in the sense he describes events prior to JHI taking over as parent) it is the best evidence we have as to how operations within New Zealand were managed within the Group. Mr O’Hagan describes the New Zealand business as operating as a branch and taking direction from elsewhere. At the relevant time, “elsewhere” was Australia where the Group parent company was based. We attach significance to Mr O’Hagan’s evidence because it is the only evidence which describes in any detail how the New Zealand business operated.
[24] Finally, the Court also commented on the paucity of evidence which might be expected, which in turn bears on the required scope for discovery:
2 White v James Hardie New Zealand (No 4) [2019] NZHC 1543.
[90] The totality of this evidence admittedly only creates a sketchy picture. But it was the holding companies that were in a position to provide the detail as to how the Group coordinates (as it obviously does) and how the New Zealand business operated within that Group. They did not do so. Nor did they provide evidence from directors, managers or staff of Studorp or James Hardie New Zealand of how the New Zealand companies are brought within the Group strategy, how they access Group resources or how Group guidance or policy is applied to them. Although these are separate legal entities to the holding companies, they are wholly-owned subsidiaries and could be expected to cooperate with their parents in the provision of such evidence.
Developments since then
[12] The plaintiffs complain that the defendants did not provide tranches of documents by the specified defendants by the date ordered. In particular, they submit:
(a)The defendants provided nine unsworn affidavits of documents which largely do not correspond with the tranches or dates in the minute.
(b)The final date for the provision of a final tranche of documents was 13 September 2019, whereas the ninth tranche was provided on 17 October 2019.
(c)The final affidavit in which the defendants described, for the first time, the steps taken to fulfil their discovery obligations, was only served on 11 November 2019. It was in a letter to the White plaintiffs’ solicitors preceding this affidavit (dated 4 October 2019) that the defendants disclosed, for the first time, the unilateral use of technology-assisted review (TAR).
[13] The plaintiffs then provide a detailed schedule of what they claim are non- compliances in the form and content of the final affidavit. The plaintiffs however say that the most significant issues are:
(a)The defendants have not individually filed and served sworn affidavits of documents listing documents within the control of each of them (or a joint affidavit which identifies which of the defendants had control of
each document) but filed affidavits on behalf of all the defendants collectively.
(b)The final affidavit does not give sufficient particulars of the steps taken to fulfil the defendants’ discovery obligations – including in relation to identifying search terms used, custodians of whom enquiries were made and documents obtained, types of document search and the details of the defendants’ unilateral use of TAR.
(c)The defendants have failed to discover, either adequately or at all, various relevant documents within the scope of the discovery orders. By way of example, the defendants have provided only a limited selection of insurance-related documents (17 documents).
[14] The defendants respond that they are not required to provide discovery on a defendant by defendant basis. Rather they say they need only provide discovery of relevant documents in their collective possession. They also submit that discovery efforts by James Hardie in this proceeding have been extensive and diligent. It is noted that, in compliance with the discovery orders, James Hardie has reviewed thousands of hard copy documents located in various countries, including more than 1.6 million electronic records to date. It says that search terms and date ranges (over 30 years) replied to the electronic materials, following which all responsive documents were reviewed. It further says that over the past twelve months, James Hardie has discovered over 28,000 documents in ten tranches.
[15] It is also said that there has been detailed correspondence between the parties and that James Hardie has taken steps to address the White plaintiffs’ concerns and is taking further steps to try and locate the final relevant documentation, particular in relation to insurance and licensing/JV category. It says the time required for this process has turned out to be greater than expected. It says the Waitakere plaintiffs have only very recently raised a significant number of issues with the defendants.
[16] It transpires that, following a telephone conference, it was agreed that I would examine only the first issue in this judgment, that is the issue of attribution.
The evidence about discovery to date
[17] The evidence of the discovery process undertaken by the defendants is set out in the affidavits of Alexander Petrie, legal counsel employed by James Hardie Australia Pty Limited. In his final affidavit of documents, he says that in order to fulfil their obligations under the discovery order, the defendants have diligently searched all documents required to be discovered under the order, and have also caused a number of particular steps to be taken (including by using the services of external consultants to assist with the recovery of electronic information and external lawyers to assess documents for relevance and privilege). This has included the following:
(a)Hard copy – indexed and reviewed thousands of hard copy files from the following locations and included but not limited to custodians identified in latter parts of his affidavit, to identify documents relevant to this claim:
(i)The Penrose premises of James Hardie New Zealand Limited;
(ii)The premises of the agent responsible for holding the company records of the New Zealand-based James Hardie defendants;
(iii)The Sydney premises of the Australian-based James Hardie defendants;
(iv)The premises of the agent responsible for holding the archive records of James Hardie Australia Pty Limited and James Hardie Research Pty Limited; and
(v)James Hardie Industries plc Board materials in the USA and Ireland.
(b)Electronic – for 26 New Zealand James Hardie custodians and 14 Australian James Hardie custodians. This has involved a collection of data held on James Hardie’s New Zealand and Australian serves and shared drives (several tera bites), including electronic, non-email files
created or accessed by the custodians listed above. This also involved applying agreed search terms and date parameters for the electronic sources collected above to isolate potentially relevant documents. This discovery process also involved a linear review of New Zealand server data responsive to search parameters and then applying technology assisted review (TAR) using an active learning algorithm to prioritise potentially relevant documents within the remaining search term responsive electronic sets.
[18] The defence have also collected James Hardie Industries plc Board materials from a third party, SaaS platform and reviewed search term responsive items, together with collecting electronic records from James Hardie Industries plc and reviewed search terms responsive items. Finally, it has involved collection and review of CDs, DVDs and floppy discs.
[19] In a schedule to the affidavit Mr Petrie lists the documents that the defendants are required to discover. He also says the defendants are undertaking some additional searches for relevant documents within the “insurance documents” tailored discovery category. He records that as to date, it has proven very difficult to find relevant documents relating to the period 1990 to 31 March 1998.
[20] In his affidavit in support of the defendants’ opposition to the discovery application, he refers to the scale and cost of the discovery process, noting that, in summary, using rounded figures, James Hardie has incurred a total of $1.6m in costs since the discovery process began. He also identifies the steps taken to date. In particular, he notes:
Hard copy documents
16Solicitors and project services staff from Chapman Tripp, a junior barrister and relevant James Hardie staff members inspected and identified potentially relevant material stored at various locations in New Zealand, Australia and the US. Several thousand files were reviewed as part of this process.
17In relation to the New Zealand hardcopy documents stored at James Hardie New Zealand's Penrose premises, solicitors from Chapman Tripp thoroughly reviewed all New Zealand hard copy files and digitised (scanned) all relevant documents so that they could be
uploaded to Chapman Tripp's document review platform. No search terms were applied over the digitised New Zealand hard copy documents; instead solicitors reviewed each document manually.
18For offshore files held in Australia, solicitors and project services staff from Chapman Tripp travelled to Campbelltown in New South Wales, Australia (an offsite facility storing James Hardie's records) and conducted a high-level review of the files and identified potentially relevant items for digitising.
19Once the documents were digitised and uploaded to the document review platform, "fuzzy terms" (meaning the search terms would not be affected by typographic errors in the documents searched) for the three products (Harditex, Monotek and Titan) were run across the digitised documents.
20Some additional terms relating to the insurance categories were then run across all insurance-related offshore hard copy material. Documents responsive to the searches were reviewed by solicitors, including any family items.
Electronic records
21James Hardie searched a data pool of around 1,674,106 electronic documents.
22In order to compile the data pool, entire copies of James Hardie's Australian and New Zealand servers were collected with the assistance of PWC Forensics and BlueStar (an e-Discovery provider based in the US). In addition, specific custodians' mailboxes were obtained where possible and electronic Board documents were collected from a SaaS platform in Ireland. The list of 40 custodians was set out in my Discovery Affidavit (and I refer to the custodians issue in section four of my affidavit below).
23Search terms were then run across the data pool. The search terms consisted of James Hardie's nominated search terms and all of the additional search terms requested by the plaintiffs in their discovery application dated 4 September 2018 (Agreed Search Terms). …
24For the documents obtained from the New Zealand servers and the New Zealand custodians' mailboxes, a date range of 1 January 1980 to 1 January 2013 was applied. No date range cut off (i.e. no end date) was applied to the offshore custodians' mailboxes and the Australian server material within the data pool.
25Further, additional insurance and management-related search terms were applied to the offshore custodians' mailboxes and corporate affairs areas of the server (i.e. not Research and Development, Sales and Marketing etc.). Again, no date range cut off was applied to these documents. …
26The above electronic searches resulted in approximately 180,000 responsive documents (including family items). Of these,
approximately 90,000 documents were reviewed by solicitors using the TAR workflow (described in more detail below).
[21] He then makes the point that to date James Hardie has discovered around 28,032 documents, comprising approximately 12,000 electronic documents and around 6,000 hard copy documents.
[22] His affidavit addresses other issues which are not the subject matter of this judgment, so I say no more about that. He does, however, address the issue of attribution in this way:
46Regarding the plaintiffs' complaint that the defendants have not served separate affidavits of documents, I understand that part of the response to that complaint is a legal issue. However, due to the nature of James Hardies' hard copy and electronic document retention in shared locations and on shared servers, in which the information covering several decades is not stored neatly by defendant, and the volume of documents that were potentially relevant, it was totally impractical and probably impossible to try and undertake the forensic exercise of deciding, document by document, whether (in the absence of agreement by the defendants to provide a single list) the document was technically in the control of one or more defendants and not others as at the time of providing discovery during 2018 and 2019.
47I affirmed the Discovery Affidavit on the understanding that the approach taken on this issue was:
47.1within the relevant High Court Rules;
47.2very -similar to the approach taken by the plaintiffs in both White and Waitakere;
47.3the most realistic option.
Rules of discovery
[23] It is common ground that rr 8.15 and 8.16 of the High Court Rules are the most apposite to the current dispute. They state:
8.15Affidavit of documents
(1)Each party must file and serve an affidavit of documents that complies with this rule, subject to any modifications or directions contained in a discovery order.
(2)In the affidavit of documents, the party must—
(a) refer to the discovery order under which the affidavit is made; and
(b) state that the party understands the party’s obligations under the order; and
(c) give particulars of the steps taken to fulfil those obligations; and
(d) state the categories or classes of documents that have not been searched, and the reason or reasons for not searching them; and
(e) list or otherwise identify the documents required to be discovered under the order in a schedule that complies with rule 8.16 and Part 2 of Schedule 9; and
(f) state any restrictions proposed to protect the claimed confidentiality of any document.
(3)The affidavit may be in form G 37.
(4)Each party must file and serve the affidavit of documents within such time as the court directs or, if no direction is made, within 20 working days after the date on which the discovery order is made.
8.16Schedule appended to affidavit of documents
(1)The schedule referred to in rule 8.15(2)(e) must, in accordance with that discovery order, list or otherwise identify documents that—
(a) are in the control of the party giving discovery and for which the party does not claim privilege or confidentiality:
(b) are in the control of the party giving discovery for which privilege is claimed, stating the nature of the privilege claimed:
(c) are in the control of the party giving discovery for which confidentiality is claimed, stating the nature and extent of the confidentiality:
(d) have been, but are no longer, in the control of the party giving discovery, stating when the documents ceased to be in that control, and the person who now has control of them:
(e) have not been in the control of the party giving discovery but which that party knows would be discoverable if that party had control of them.
(2)Subject to Part 2 of Schedule 9, documents of the same nature falling within subclause (1)(b), (d), or (e) may be described as a group or groups.
(3)The description of documents for which privilege is claimed under subclause (1)(b) must be sufficient to inform the other parties of the basis on which each document is included in a group under subclause (2).
(4)The schedule must include documents that have previously been disclosed under rule 8.4.
The schedule need not include—
(a)documents filed in court; or
(b) correspondence that may reasonably be assumed to be in the possession of all parties.
[24]Control is defined as follows:
control, in relation to a document, means—
(a)possession of the document; or
(b)a right to possess the document; or
(c)a right, otherwise than under these rules, to inspect or copy the document
[25]Rule 8.24 then provides:
8.24Who may swear affidavit of documents
(1)When a Judge makes a discovery order, the Judge may—
(a) specify by name or otherwise the person who has to make the affidavit of documents; or
(b) specify by description or otherwise a group of persons or a class of persons each of whom may make the affidavit.
(2)If the Judge does not specify the person or the group or class of persons, the affidavit of documents may be made as follows:
(a) if the person required to make discovery is an individual person, by that individual person:
(b) if the person required to make discovery is a corporation or a body of persons empowered by law to sue or be sued (whether in the name of the body or in the name of the holder of an office), by a person who meets the requirements of rule 9.82:
(c) if the person required to make discovery is the Crown, or an officer of the Crown who sues or is sued in an official capacity, or as representing a government department, by an officer of the Crown.
[26]Rule 9.82 states:
9.82 Affidavits made on behalf of corporation
A person may make an affidavit on behalf of a corporation or body of persons empowered by law to sue or to be sued (whether in the name of the body or in the name of the holder of an office) if the person—
(a)knows the relevant facts; and
(b)is authorised to make the affidavit.
[27]I return to the meaning and import of these rules below.
Argument
[28] Mr Gray QC for the White Plaintiffs and Ms Meechan QC for the Waitākere Plaintiffs submitted, in summary, that the defendants are “each” obliged to provide discovery of the documents in their possession and/or control. They submit that this is literally required in terms of r 8.15 of the HCR and my orders noted above, and is necessary in order to provide discovery in response to a major issue in the proceedings, namely who is responsible for the design/manufacture/sale of the James Hardie Products and related Product Information, and whether the defendants knew/ought to have known about any defects. Both are critical of what appears to be a concerted attempt by the defendants to avoid proper, transparent discovery by the mechanism of collective discovery, which they say shifts a significant burden to the plaintiffs in terms of the requirement to disaggregate the documents by company.
[29] As set out in Mr McKay’s helpful synopsis of argument, the defendants' fundamental position is that:
(a)their obligation is to discover relevant documents which are, at the time of giving discovery, in their control;
(b)a party can obviously have control over documents for the purposes of giving discovery by consent or agreement (conferring the right to discover them to the extent that such right does not already exist);
(c)if defendants (or plaintiffs) in a corporate Group decide to consent to the disclosure of all relevant documents by all defendant subsidiaries,
rather than attempt to figure out which company technically has control of which documents held in a common storage facility, it is within their rights and they should not be criticised for doing so - just as they may have consent to discover documents from a non-party and therefore have to discover that non-party's documents;
(d)there is no obligation in the discovery rules requiring a party to;
(i)list the dates on which it acquired control - the "when" question;
(ii)list documents differently depending on how control was acquired - the "how" question;
(e)in addition to there being no rule or authority requiring a party to ascertain and include such information in its affidavit of documents (which may not even be possible), requiring such information to be provided would:
(i)defeat the purpose of ensuring the just, speedy and inexpensive determination of the proceeding by introducing a whole new layer of inquiry and decision-making into the discovery process;
(ii)increase the burden of discovery, contrary to continued attempts by the courts and Rules Committees to try to keep discovery in modern litigation within manageable boundaries;
(iii)have a tendency to be oppressive in cases involving large discoveries;
(iv)disincentivise parties from getting on with the discovery process in a pragmatic fashion - which pragmatic consent routinely facilitates.
(f)Discovery is a process for providing relevant documents to other parties to litigation; it is not a substantive evidential step in determining the merits of the matters in issue.
Assessment
[30]As Mr Gray submits, the starting point for the analysis is the plain words of r
8.15. It states that “[e]ach” party must produce an affidavit of documents. Rule 8.24 then provides that if that person is a body corporate or is a corporation, as here, then only a person who knows the relevant facts and is authorised to make the affidavit may do so. The logical implication of this clear scheme is that each defendant is required to file and serve an affidavit of documents and that affidavit has to be sworn by someone who knows the relevant facts and is authorised to do so.
[31] I acknowledge that these rules must be applied in a way that avoids unnecessary duplication and cost. For that reason, affidavits may be filed where say several defendants have common interests and no useful purpose will be served in requiring each of them to produce the same or similar affidavit. Associate Judge Bell put it aptly this way:3
[83] …Where parties in a proceeding form a group and have a common interest, it is standard for one person in the group to make an affidavit on behalf of them all. When trustees sue, usually only one trustee makes an affidavit of documents on behalf of them all. When a married couple sue, usually only one of them, makes an affidavit of documents for them both. In unit title leaky building litigation, affidavits of documents will usually be sworn by a member of the body corporate committee on behalf of the body corporate and all plaintiff owners. In leaky schools litigation, there are usually three plaintiffs – the Minister of Education, the Secretary of Education, and the school board of trustees. An officer of the ministry swears a discovery affidavit for all three. Where a firm is a party to a proceeding, typically one partner swears an affidavit on behalf of all. In some proceedings where both a company and its directors are parties, it is common to see one affidavit given on behalf of both the company and the directors. As an example, in this case Mr Murphy has sworn affidavits of documents both for himself and the second and third defendants. This practice makes for efficiencies. In many of these cases, there is likely to be shared control of documents. Requiring each individual to swear a separate affidavit of documents will duplicate discovery by other individuals. That would lead to more work for the parties’ lawyers and add to the number of documents in the proceeding, but to no advantage. In principle, there can be no objection to individuals in a group co-ordinating to ensure that all documents in their control are set out in a single affidavit.
3 Dold v Murphy [2018] NZHC 994.
[32] But here, where possession of documentation is itself directly relevant to a key issue in dispute, a party is entitled to the literal enforcement of rules 8.15 and 8.24, assuming for that purpose it is reasonably possible to do so. In this regard, the defendants have always maintained that the third, fourth and seventh defendants have no connection whatsoever to the manufacture of the allegedly defective products. That being the case, the principle of common interest stated by Associate Judge Bell is not obviously applicable. Illustrative perhaps of that separation, the defendants’ proposed timetable for discovery referred to each of the defendants.
[33] As noted, Mr McKay’s secondary argument is that the documents are now in the collective control of the defendants, because each of the defendants consents to that collective possession. This is then said to mean that the defendants are complying with rule 8.15 because they are literally in control of all documents. Further disaggregation by defendant is therefore not required.
[34] For my part I find that approach to be at best discordant with the evident object of rule 8.15 to secure discovery by “each” party. At worst, in a case like the present involving claims of knowledge of defects by all defendants, such an approach could be said to be a device to avoid transparent discovery. While I make no finding that that is the defendants’ purpose here, I prefer a construction of rule 8.15 and 8.16 which secures the clear and transparent discovery by a party to litigation of relevant documents in their control or documents that have been in their control.
[35] Turning then to reasonableness, it is necessary to acknowledge the very large discovery task undertaken by the defendants and the vast pools of documents that they have had to discover. Had this been a case where there was no pleaded issue as to the responsibility of specified defendants, I would not have been minded to require each defendant to provide an affidavit of documents in their control. But not only is the issue pleaded, it has already been subject to substantial litigation before this Court,4 the Court of Appeal5 and the Supreme Court.6 To my mind, against that background, it would do serious damage to the integrity and efficacy of the discovery process to
4 White v James Hardie New Zealand [2017] NZHC 2105.
5 James Hardie Industries PLC v White [2018] NZCA 580, [2019] 2 NZLR 49.
6 James Hardie Industries PLC v White [2019] NZSC 39.
permit collective discovery, the effect of which is to then require the plaintiffs to embark on a process of identification and attribution by defendant of those documents.
[36] In this regard Mr Petrie’s opinion that identification of the documents by each defendant is “totally impractical and probably impossible” is not substantially helpful to me. While it is not for me to set out the type of evidence that a party should produce in order to avoid its ordinary discovery obligations, evidence as to how the hard copy or electronic documents were originally catalogued for storage purposes should be adduced. That evidence would need to clearly show that no such cataloguing by defendant took place in order to sustain the impossibility claim. Similarly, insofar as concerns documents stored on servers, clear evidence from a suitably qualified expert as to the ability to identify which of the defendants is the source or otherwise in control of the document, is to be expected if the claim to impossibility is to be sustained. Moreover, Mr McKay accepted, unsurprisingly, that each of the defendants has a pool of documents over which they have control. It would be remarkable if that were not the case. Therefore, better evidence than a bare assertion of impossibility is required before this Court can reasonably accept that identification of documents by defendant is not reasonably possible. Nor is Mr Petrie’s evidence to be accepted at face value when it appears no attempt has, in fact, been made to identify the documents in the control or possession of each defendant, because the defendants believed only collective discovery was required.
[37] In the result, I am satisfied that the order sought by the plaintiffs, and recorded at [1](a) as to attribution should be made. Whether by each defendant or in the alternative form proffered by the plaintiffs is for the defendants. Needless to say, the scope of discovery, including the form in which it is presented, must be reasonable. But the defendants will not satisfy the obligation to discover by simply asserting it was too hard or impracticable. A genuine effort must be made to identify the documents in the control of each defendant. If in the end that proves impossible in part or in whole, then strong evidence will need to be provided to show why it could not be done. Any further delay will also likely sound in costs.
[38]If costs cannot be agreed, submissions may be filed.
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