YPG IP LIMITED AND ANOR V YELLOWBOOK.COM.AU PTY LTD AND ORS HC AK CIV-2007-404-2839

YPG IP LIMITED AND ANOR V YELLOWBOOK.COM.AU PTY LTD AND ORS HC AK CIV-2007-404-2839

The Court ordered targeted electronic discovery and inspection: specific electronic copies of discovered documents (items 1.1 and 1.2 and agreed items), further discovery or sworn explanation for specified Schedule 2 items, provision of amended statement of defence and an affidavit from director answering interrogatories within 21 days; the Court refused the plaintiffs' application for forensic imaging of defendants' hardware because the defendants' evidence that relevant hardware/backups no longer exist and the lack of a demonstrated real prospect of recovering relevant material meant the intrusive step was not justified at interlocutory stage.

Citation
openlaw-c66232cb_1935_4ee4_911b_7ac9e6dab2b0.pdf
Parties
First Plaintiff: YPG IP LIMITED; Second Plaintiff: YELLOW PAGES GROUP LIMITED; First Defendant: YELLOWBOOK.COM.AU PTY LTD; Second Defendant: DAVID KHOURY; Third Defendant: ROBERT G COLES
Court
High Court
Jurisdiction
New Zealand
Judgment Date
28 July 2010
Procedural Posture
High Court Civil Claim (copyright, Trade Marks, Fair Trading) / Interlocutory (discovery and Inspection Applications)
Outcome
Application partly granted in part and refused in part
Legal Topics
Discovery, Inspection of Electronic Documents, Forensic Imaging of Computers, Interrogatories, Preservation/spoliation of Evidence, Database Copyright, Trade Mark Ownership and Goodwill
Copyright Law Trade Marks Law Fair Trading Act (consumer Protection) Civil Procedure (discovery, Inspection, Interrogatories) Discovery Inspection of Electronic Documents Forensic Imaging of Computers Interrogatories +3 more

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Parties

YPG IP LIMITED

First Plaintiff

YELLOW PAGES GROUP LIMITED

Second Plaintiff

YELLOWBOOK.COM.AU PTY LTD

First Defendant

DAVID KHOURY

Second Defendant

ROBERT G COLES

Third Defendant

Procedural Posture

High Court Civil Claim (copyright, Trade Marks, Fair Trading) / Interlocutory (discovery and Inspection Applications)

Legal Issues

  1. 1 Whether the defendants must produce electronic copies of identified discovery documents (notably documents 3.001 and 3.002)
  2. 2 Adequacy of discovery and whether further and better discovery should be ordered
  3. 3 Whether forensic imaging of defendants' hardware should be ordered

Ratio Decidendi

The Court ordered targeted electronic discovery and inspection: specific electronic copies of discovered documents (items 1.1 and 1.2 and agreed items), further discovery or sworn explanation for specified Schedule 2 items, provision of amended statement of defence and an affidavit from director answering interrogatories within 21 days; the Court refused the plaintiffs' application for forensic imaging of defendants' hardware because the defendants' evidence that relevant hardware/backups no longer exist and the lack of a demonstrated real prospect of recovering relevant material meant the intrusive step was not justified at interlocutory stage.

Court Disposition

Application partly granted in part and refused in part

Orders

  • First defendant to provide within 21 days electronic copies of discovered documents in Schedule 1: items 1.1 and 1.2 (or, if item 1.2 cannot be provided, an affidavit from Emmanuel Khoury fully explaining why not) and items 1.5, 1.7, 1.11 and 1.16.
  • First defendant to provide within 21 days by supplementary affidavit and produce copies of any existing documents identified in Schedule 2: items 2.6, 2.19 and 2.20 (or, if unobtainable, an affidavit from Emmanuel Khoury fully explaining why not) and items 2.18, 2.20, 2.36 and 2.37.