NAK Australia Pty Ltd v Starkey Consulting Pty Ltd [2008] NSWSC 1142

NAK Australia Pty Ltd v Starkey Consulting Pty Ltd [2008] NSWSC 1142

Because NAK sought to rely on a snapshot of the computer formerly used by Mr Starkey, while the authenticity of relevant email material was disputed and earlier attempts to obtain original electronic emails had failed, fairness required that the defendants be given access to the computer and email account to test and verify NAK's evidence. Delay in seeking access did not justify refusal, and confidentiality concerns could be addressed by undertakings while allowing inspection by an independent expert retained by the defendants and permitting Mr Starkey to be present.

Jurisdiction
Australia
Judgment Date
10 October 2008
Procedural Posture
Procedural and Other Ruling Concerning Discovery and Access to Computer and Email Account / Interlocutory Motion by Defendants in the Equity Division Expedition List
Outcome
Defendants' motion granted; plaintiff ordered to provide access to the computer and email account and to pay the defendants' costs of the motion.
Legal Topics
['access to Computer Processing Unit and Email Account' 'authenticity of Electronic Mail' 'electronic Discovery' 'expansion of Discovery Categories' 'confidentiality Undertakings' 'expert Inspection of Computer Evidence']
['civil Procedure' 'discovery' 'evidence'] ['access to Computer Processing Unit and Email Account' 'authenticity of Electronic Mail' 'electronic Discovery' 'expansion of Discovery Categories' 'confidentiality Undertakings' 'expert Inspection of Computer Evidence']

Case Brief

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Procedural Posture

Procedural and Other Ruling Concerning Discovery and Access to Computer and Email Account / Interlocutory Motion by Defendants in the Equity Division Expedition List

Legal Issues

  1. 1 ['Whether the defendants should be given access to the computer processing unit formerly used by Mr Starkey and to the email account and directory he used until 29 June 2007.' 'Whether discovery should effectively be extended to include the contents of the computer after NAK sought to rely on a CD-ROM snapshot of that computer.' 'Whether inspection should be conducted by a jointly instructed or court-appointed expert, or by an independent expert retained by the defendants.' "Whether Mr Starkey should be permitted to be present during the computer inspection notwithstanding NAK's confidentiality objection."]

Ratio Decidendi

Because NAK sought to rely on a snapshot of the computer formerly used by Mr Starkey, while the authenticity of relevant email material was disputed and earlier attempts to obtain original electronic emails had failed, fairness required that the defendants be given access to the computer and email account to test and verify NAK's evidence. Delay in seeking access did not justify refusal, and confidentiality concerns could be addressed by undertakings while allowing inspection by an independent expert retained by the defendants and permitting Mr Starkey to be present.

Court Disposition

Defendants' motion granted; plaintiff ordered to provide access to the computer and email account and to pay the defendants' costs of the motion.

Orders

  • ["The plaintiff provide to the defendants access to the computer processing unit formerly used by Mr Starkey until 29 June 2007, at premises agreed by the parties or failing agreement at the office of the plaintiff's solicitor, together with all necessary facilities including a monitor and appropriate power to...