Discovery sought from non­parties - Turns on own facts

1 MASTER SANDERSON: This is the plaintiff's application for non-party discovery. The application is made pursuant to O 26A r 5. Before detailing the orders sought by the plaintiff, it is appropriate to say something about the facts of this case.

2 The plaintiff is the body responsible for the regulation and administration of rugby union in Western Australia. It operates the Western Force rugby union team which plays in the international Super 14 rugby competition. In that capacity, it is the employer of a number of premier rugby union players. The defendant was employed by the plaintiff as its chief financial officer for two periods, the first being 31 January 2005 to 19 January 2007; the second being 1 February 2007 to 21 May 2007.

3 On 21 January 2007 (after the defendant's first term of employment with the plaintiff ended and before he was re-employed by the plaintiff), the defendant emailed to himself documents from his work email to his home email address (the Rugby WA Documents) containing confidential information belonging to the plaintiff (the Confidential Information). These emails were sent by way of a hotmail email account.

4 Between 26 May 2007 and 22 August 2007, a series of articles authored or co-authored by Mr Gerard Ryle (Mr Ryle) appeared in the Sydney Morning Herald newspaper. That newspaper is published by Fairfax Media Publications Pty Ltd (Fairfax). Some of the articles contained confidential information belonging to the plaintiff and which was contained in the Rugby WA Documents. Reference was made in the article to copies of certain of the Rugby WA Documents having been provided to the Sydney Morning Herald.

5 On 28 September 2007, Heenan J made search orders pursuant to O 52B r 2. These orders were to be executed at the defendant's home address and at the premises of Ironbark Gold Ltd (Ironbark), the defendant's current employer. The search orders were executed on 3 October 2007.

6 During the execution of the search orders, forensic images were made of a desktop computer used by the defendant in the course of his employment with Ironbark. Amongst the files recovered from the desktop computer were emails passing between the defendant's Ironbark email address and two email addresses of Mr Ryle. One of those email address refers to Fairfax and I was asked to assume that it was Mr Ryle's address at Fairfax Newspapers. No objection was taken by counsel for the non-parties to my making that assumption. Also recovered during the search were .htm files which relate to a web-based hotmail address with the username darby_shaw_2007@hotmail.com (the Darby Shaw Hotmail Account). The evidence is that these .htm files show that there was a voluminous and regular email correspondence between the user of the Darby Shaw Hotmail Account and Mr Ryle.

7 The evidence is to the effect that as at 28 September 2007, at least 281 emails had been sent to the Darby Shaw Hotmail Account almost exclusively from Mr Ryle. Further, the correspondence between the user of the Darby Shaw Hotmail Account was established at least as at 27 June 2007.

8 In support of this application, the plaintiff relied upon an affidavit of Timothy Andrew Searle sworn 11 December 2007. Based upon that affidavit, I was invited to assume that the defendant was the user of the Darby Shaw Hotmail Account. Counsel for the non-parties did not contest that such an assumption should be made.

9 Based upon the totality of the evidence, it was the plaintiff's position that the voluminous and regular email correspondence between the defendant and Mr Ryle dealt almost exclusively with the plaintiff and its affairs. It was also submitted that it showed the defendant was actively engaged in passing information to Mr Ryle, even in circumstances where he was aware that such information was actually or potentially confidential. The plaintiff submitted that it could also be assumed that the defendant was actively engaged in sourcing information with the intention of passing that information on to Mr Ryle. It was said that the correspondence was carried on in a deliberately surreptitious manner in part by the use of multiple email addresses and the use of pseudonyms.

10 It is against that background that the plaintiff seeks non-party discovery from Fairfax and Mr Ryle.

11 During the course of his submissions, counsel for the plaintiff applied to amend the application to insert a temporal limitation on the discovery sought. There being no objection, leave to amend was granted. In its amended form then, the application seeks the following orders:

1. Within 14 days Fairfax Media Publications Pty Ltd (Fairfax) of Level 5, 1 Darling Island Road, Pyrmont, NSW, 2009 give discovery of all documents that are or have been in its possession, custody or power from 1 January 2007 to date which relate to:

1.1.1 from the gryle@smh.com.au email account; and/or

1.1.2 the gryle@access.fairfax.com.au email account; and/or

1.1.3 otherwise by Mr Gerard Ryle;

to:

1.1.4 the dround@ironbarkgold.com.au email account; and/or

1.1.5 the darby_shaw_2007@hotmail.com email account; and/or

1.1.6 otherwise to the defendant;

1.2.1 to the gryle@smh.com.au email account; and/or

1.2.2 the gryle@access.fairfax.com.au email account; and/or

1.2.3 otherwise to Mr Ryle;

from:

1.2.4 the dround@ironbarkgold.com.au email account; and/or

1.2.5 the darby_shaw_2007@hotmail.com email account; and/or

1.2.6 otherwise by the defendant; and

1.3 any file notes, memoranda, or other documents relating to telephone conversations between Mr Ryle and the defendant.

1. Within 14 days Mr Gerald Ryle of C/- Fairfax Media Publications Pty Ltd of Level 5, 1 Darling Island Road, Pyrmont, NSW, 2009 give discovery of all documents that are or have been in his possession, custody or power from 1 January 2007 to date which relate to:

2.1.1 from the gryle@smh.com.au email account; and/or

2.1.2 the gryle@access.fairfax.com.au email account; and/or

2.1.3 otherwise by Mr Ryle;

to:

2.1.4 the dround@ironbarkgold.com.au email account; and/or

2.1.5 the darby_shaw_2007@hotmail.com email account; and/or

2.1.6 otherwise to the defendant;

2.2.1 to the gryle@smh.com.au email account; and/or

2.2.2 the gryle@access.fairfax.com.au email account; and/or

2.2.3 otherwise to Mr Gerard Ryle;

from:

2.2.4 the dround@ironbarkgold.com.au email account; and/or

2.2.5 the darby_shaw_2007@hotmail.com email account; and/or

2.2.6 otherwise by the defendant; and

2.3 any file notes, memoranda, or other documents relating to telephone conversations between Mr Ryle and the defendant.

1. The plaintiff pay Fairfax and Mr Ryle's reasonable costs of complying with this order.

12 The non-parties raised three broad objections to the orders as sought. First, it was suggested that the ambit of the documents sought was too wide and no attempt had been made to limit the category or categories of documents which need to be discovered by the non-parties. Reference was made to the decision of Jovista Pty Ltd v FAI General Insurance Co Ltd [1999] WASC 44 and Davis v Sagar Pty Ltd (Unreported, WASC, Library No 980443, 10 August 1998).

13 It was partly in response to that submission that the plaintiff placed the temporal limitation on the orders sought. In my view, given the temporal limitation, the extent of the discovery sought is not too wide. It can be seen that in each category the email addresses of both the sender and the recipient of the emails are specified. It is not a case where the plaintiff is asking either of the two non-parties to discover all of the email correspondence from whatever source passing to Mr Ryle and details of all emails he may have sent. It is difficult to see how the request could have been further limited.

14 It may well be, as was submitted by counsel for the non-parties, that discovery of the breadth proposed would turn up some documents and emails which were not related to a matter in issue in these proceedings. That is not to the point. A non-party is always faced with the difficulty of not being entirely sure just what are the issues between the parties to the action. This case is clearer than most, but there still may be aspects of the action of which the non-parties have no knowledge. What is important is that in broad terms, they know the nature of the dispute between the parties and what documents they are required to discover. Against that background, the order made should be no wider than is necessary. In my view, the order proposed in this case is in all respects satisfactory.

15 The second complaint was by Fairfax. They said that an order at this stage was premature. It is difficult to see how that could be the case. There must be considerable overlap between what would be discovered by Mr Ryle and what would be discovered by Fairfax. In my view, it is preferable to require both parties to give discovery at the same time, presumably using the same solicitors. (Both non-parties are presently represented by the same solicitors.) To do otherwise would, at the very least, give rise to the likelihood of the task of giving discovery being duplicated.

16 Finally, the non-parties said that they were concerned about the threat of defamation proceedings. In particular, reference was made to a letter of 27 November 2007 sent by the plaintiff to Fairfax and concerning an article published by Fairfax on 22 November 2007. It was said that this letter could be viewed as a 'concerns notice' under the provisions of the Defamation Act 2005 (WA). It was submitted that unless and until the threat of any defamation proceedings were unequivocally withdrawn, no order for discovery should be made.

17 During the course of his submissions, counsel for the plaintiff denied that the letter in question was a concerns notice. Be that as it may, two things can be said about the non-parties' submissions. First, it must be doubtful whether in ordering discovery the order could be made conditional upon the plaintiff giving an undertaking that it would not take action in separate proceedings. Rule 7 of O 26A anticipates that an order made under r 5 might be made conditional upon the parties seeking the order giving security for costs of the discovery. It may also be that there is a general power to make an order conditional. But even if such a power does exist, it would only be exercised in the most extraordinary of circumstances. There is no justification in this case for making such an order.

18 Secondly, any discovery which is ordered is for use in the proceedings between the plaintiff and the defendant. The usual implied undertakings which are a part of the discovery process and limit the use that may be made of the documents would apply in this case. The application is not made under r 4 - that is to say, access to these documents is not being sought with a view to taking action against the non-parties. The nature of the application itself then offers the non-party protection which is, in my view, more than adequate.

19 In the circumstances, I would be prepared to make the orders sought. The timeframe proposed by the plaintiff may be impractical and some further orders may need to be made to deal with confidentiality. I will hear the parties in relation to these orders.

20 There is one further matter which I should mention. The order that I will make is an order for discovery. If the non-parties claim privilege over any documents, or if for any reason it is said that access to particular documents ought be denied, then those matters can be dealt with at a later date. The making of a discovery order does not mean that every document discovered will be available for inspection on an unrestricted basis. Counsel for the plaintiff made that point in his submissions. That being so, it is important that when documents are discovered, they should be properly described so that the nature of the document can be understood, such a description not of course disclosing the contents of the document. There also may be a question as to the extent to which the non-parties will be required to go to produce the documents sought. After all, most of these documents are in electronic form and if, for instance, they have been deleted from a computer, some ingenuity may be required to access the documents. On that basis, any order that is made will allow the non-parties liberty to apply for directions as to what steps they have to take to comply with the letter and intent of the order.