WHITE & ORS v JAMES HARDIE NEW ZEALAND & ORS [2020] NZHC 685

WHITE & ORS v JAMES HARDIE NEW ZEALAND & ORS [2020] NZHC 685 [3 April 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2015-404-2981 (WHITE)[2020] NZHC 685BETWEEN KAREN LOUISE WHITE AND THEPERSONS LISTED IN SCHEDULE 1PlaintiffsAND JAMES HARDIE NEW ZEALANDFirst DefendantSTUDORP LIMITEDSecond DefendantJAMES HARDIE NZ HOLDINGSThird DefendantRCI HOLDINGS PTY LIMITEDFourth Defendant/contHearing: 18 March 2020Counsel: B Gray QC, A Thorn, R Havelock for White PlaintiffsC M Meechan QC, C Gordon, S M Sharma for WaitakerePlaintiffsJ Hodder QC, J A McKay and L Fraser for DefendantsJudgment: 3 April 2020JUDGMENT (NO 7) OF WHATA JThis judgment was delivered by me on 3 April 2020 at 3:00 pmpursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .JAMES HARDIE AUSTRALIA PTY LIMITEDFifth DefendantJAMES HARDIE RESEARCH PTY LIMITEDSixth DefendantJAMIES HARDIE INDUSTRIES PLCSeventh DefendantCIV-2015-404-3080 (WAITAKERE GROUP LIMITED)BETWEEN WAITAKERE GROUP LIMITED & ORSPlaintiffsAND JAMES HARDIE NEW ZEALANDFirst DefendantSTUDORP LIMITEDSecond DefendantJAMES HARDIE NZ HOLDINGSThird DefendantRCI HOLDINGS PTY LIMITEDFourth DefendantJAMES HARDIE AUSTRALIA PTY LIMITEDFifth DefendantJAMES HARDIE RESEARCH PTY LIMITEDSix DefendantJAMES HARDIE INDUSTRICES PLCSeventh Defendant[1] I have before me various applications by the plaintiffs in both relevantproceedings in respect of discovery. This matter was heard on 18 March 2020. Leavewas granted to file memoranda in relation to engaging independent counsel to assistwith the remaining discovery issues. The last of the memoranda was filed on 26 March2020. The plaintiffs did not wish to employ independent counsel. I therefore proceedto judgment, though for reasons stated herein, the amended White application of 12March 2020 is adjourned.Background[2] The background to this litigation has been canvassed in several judgmentsalready. I do not repeat it here. It is necessary, however, to outline certain aspects ofthe discovery process and the present applications relevant to this proceeding.The first application (4 September 2018)[3] The White plaintiffs filed an application for various orders relating to theplaintiffs' discovery, including, listing items in the defendants' control, usingparticular search terms, disclosing adverse documents, providing inspection copies,leave for further discovery, and costs.[4] I made tailored discovery orders in Judgment (No 2), dated 31 October 2018,that the categories of documents, as largely sought by the plaintiffs, were to bediscovered by the defendants. With those orders I issued Minute (No 19), dated 13May 2019, making specific orders as to dates for providing tranches of discovery byspecified defendants, with a final tranche of discovery to be provided by all defendantsby 13 September 2019.The second application (29 November 2019)[5] In this application, the White plaintiffs sought orders, that the defendantsindividually file and serve sworn affidavits of documents; or, alternatively, that theyfile and serve a joint affidavit but specify for each document which defendant companyhad control prior to the joint discovery process; for leave to seek orders in respect ofthe adequacy of Technology Assisted Review (TAR); that additional search terms andreasonable variations be used; for general leave for further orders as necessary; andfor costs.[6] The defendants filed a notice of opposition to this application on 13 December2019. They contended that the orders sought are disproportionate, oppressive andunnecessary in the circumstances; and further that a number of the orders sought weretrivial and seek rigid compliance with the High Court Rules where it would serve nouseful purpose and run counter to the overall objectives of discovery. They maintainedthat the collective discovery response by all the defendants, and the use of TAR, wasappropriate. Lastly, they objected to having to use additional search terms asunnecessary, as well as having to relist the table of documents in accordance with thespecific James Hardie entity which had control of each document because thatinformation in practice would not always be ascertainable.The third application (6 December 2019)[7] The Waitakere plaintiffs then applied for discovery orders seeking that allseven defendants provide a revised affidavit of documents that meets the obligationsof the High Court Rules, as well as the orders for tailored discovery made in 2018 and2019, and addresses various matters set out in a schedule.[8] The defendants opposed this application, providing a schedule thatcorresponds with the schedule provided by the Waitakere applicants.Joint submissions (12 December 2019)[9] I then received a joint memorandum on 12 December 2019 from both sets ofplaintiffs. The plaintiffs claimed in that memorandum the defendants had failed tocomply with my directions and discovery orders. The plaintiffs prepared a scheduleitemising each of the alleged non-compliances.18 December hearing[10] I heard in part the applications for discovery on 18 December 2019. The focalpoint of those applications concerned whether the defendants were obliged to discoverdocuments in their individual possession, rather than collective possession. I resolvedthat they must, unless having tried they find it is impossible or impractical to do so.The defendants have not complied with that order and have instead appealed to theCourt of Appeal.[11] The remainder of the applications were set down to be considered on a date inMarch this year, following updating memoranda by the plaintiffs as to progress inaccessing the balance of discovery.The fourth application (12 March 2020)[12] I received updating memoranda indicating, in short, that the parties had notreached agreement so a further hearing on issues relating to discovery would benecessary.[13] The White plaintiffs have now filed an amended interlocutory application,dated 12 March 2020, seeking the following (with the amendments underlined):1. In accordance with the orders for tailored discovery made by theCourt on 31 October 2018, 9 November 2018, 13 May 2019 and 4July 2019 (the Discovery Orders), each of the defendants mustindividually file and serve a sworn affidavit of documents by 1 May2020 or a date to be fixed by the Court which:(a) gives sufficient particulars of:(i) all of the types of documents (hard copy andelectronic) which were collected or ought reasonablyto have been collected, reviewed and discovered,including the types of documents listed in Schedule 1to this Application;(ii) the steps taken by that defendant to fulfil its discoveryobligations, including listing all the persons of whomthat defendant has made or ought reasonably to havemade inquiries (including, but not limited to, thepersons in Schedule 2 to this application);(b) includes the particular documents listed in Schedule 3 to thisapplication, being documents within the scope of theDiscovery Orders, but which the defendants have failedand/or refused to discover in accordance with the applicabletimeframes;(c) specifies an author and/or recipient of each document to theextent that these can be determined in whole or part on theface of the documents.2. Using methods and strategies to be agreed with the plaintiffs (ordetermined by the Court in the absence of agreement), the defendantssearch for and discover (by 1 May 2020 or a date to be fixed by theCourt), relevant documents using the additional search terms inSchedule 4 to this application together with appropriate variations (theAdditional Search Terms).3. The defendants produce copies of the documents in Schedule 5 forinspection by the Court for the purposes of deciding the validity of theprivilege claimed, and in accordance with any subsequent order of theCourt, discover copies of any documents in respect of which privilegeis set aside or modified.4. The defendants produce copies of documents which they have maskedfor alleged "irrelevance" (as listed in Schedule 6) for inspection bythe Court, and in accordance with any subsequent order of the Court,discover unmasked copies of any documents which the Courtdetermines are relevant.5. Leave be reserved to the plaintiffs to apply for such further orders asmay be necessary in relation to the above.6. The defendants pay the costs of and incidental to this application.Waitakere plaintiffs – deferred discovery issues[14] In their updating memorandum of 11 March 2020 the Waitakere plaintiffs haveidentified the discovery issues they say remain unresolved. They have subsequentlyidentified what they call the "priority discovery issues", namely:(a) Protocol non-compliance – these are broadly summarised as the failureto comply with the listing and exchange protocol set out in Schedule 9,Part 2 of the High Court Rules.(b) Custodial schedule – the failure to provide a schedule listing theposition for each of the defendants' employees listed at 4.2 and 4.3 ofthe affirmation of documents filed on behalf of the defendants dated5 November 2019 (referred to as the Petrie November affirmation) andwhich entity/name each defendant the employee worked for.(c) Document gaps – the incomplete provision of documents in respect ofClass D (testing documents), Class I (documents identifying risks,defects or liabilities) and Class J (insurance documents).The defendants' global response[15] The defendants have not been able to file a notice of opposition to the fourthapplication in time for the hearing before me. However, in a memorandum of counseldated 17 March 2020, the defendants helpfully provided a schedule of combinedoutstanding discovery issues. On each issue, the table explains:(a) Where the item in question was raised with the Court (by reference toeither applications, memoranda, or both);(b) the current position on the issue of both sets of plaintiffs – includingwhether the item has been abandoned or resolved;(c) the defendants' position on each issue; and(d) the matters still in dispute between the parties requiring resolution.[16] The defendants generally maintain their opposition to the expansion of thesearch items and the addition of further custodians. They also propose specific actionsin relation to some of the matters raised by the plaintiffs. I address their specificarguments and actions, where relevant, below.Evidence[17] The White plaintiffs have filed affidavits by Anthony Michael Littlewood (taxlawyer), David John Ross (director) and Campbell Bryan McKenzie (forensictechnology expert) in support, together with a further affidavit by Mary-ClaireHeasley, specifically in support of the latest application. This evidence addresses,among other things, the evidence of Mr Alexander Charles Petrie and Mr RichardHarold Smith filed by the defendants in support of the stay application (which Igranted in Judgment (No 6)). It also raises new matters in support of the amendedapplication.[18] To make sense of the evidence it is necessary first to describe the defendants'evidence in relation to the stay.Mr Petrie[19] The first part of Mr Petrie's affidavit appears to respond to my Judgment (No.5). He confirms that he does not believe he could have affirmed to the best of hisknowledge and belief that some documents were not in the control of any one of thedefendants. He says, having consulted with Mr Smith, that there are also significantpractical difficulties in trying to establish which specific defendant entity historicallyhad access to or possession of the relevant accumulated hard copy and electronicrecord. Nonetheless, he says work is underway to try and resolve or at least narrowthe issues under appeal and address the plaintiffs' concern.[20] He refers to the sources of hard copy documents and identifies their locations(Penrose, Sydney and broadly in the United States and Ireland).[21] He then explains the archive process in two major locations, namely:(a) The premises of the agent responsible for holding the archive recordsof James Hardie Australia Pty Limited and James Hardie Research PtyLimited; and(b) the Penrose premises of James Hardie New Zealand Limited.[22] The key point he appears to be making is that while company boxes coded toa James Hardie entity contain materials which relate to that entity, it does not appearto do so exclusively. As such, he cannot say with absolute certainty that the contentsof all boxes coded to a particular entity either exclusively contain material of thatentity, or that such material was certainly in its control prior to the archiving. Thereverse is true in relation to all boxes in other account names.[23] In relation to New Zealand, files were typically stored by general subjectmatter and without reference to or record of which James Hardie entity strictly hadpossession of them. He also notes that it is relevant the entire operating business,along with all of the relevant employees in New Zealand, was sold by the seconddefendant, Studorp Limited (formerly James Hardie Building Products Limited) to thefirst defendant, James Hardie New Zealand Limited, pursuant to an agreement dated31 October 1998. To the best of his knowledge and belief, as a result of thistransaction, at least in general terms:(a) Penrose documents dated prior to the sale date were in the possessionof Studorp Limited;(b) all of the Studorp Limited's records (physical and electronic) becamethe possession of James Hardie New Zealand Limited from the saledate; and(c) no other records created by James Hardie New Zealand Limited afterthe sale date would have been in the possession of Studorp Limited.[24] He also says he has not been able to establish if any overseas James Hardiecompanies, other than Studorp Limited or James Hardie New Zealand Limited,technically had a right of access to any of the documents at any particular date in thepast.Mr Smith[25] Mr Smith is an IT manager. He sets how the companies of the James HardieGroup:(a) Store electronic data and records (EDR);(b) control access to EDR;(c) store email records;(d) control access to email records; and(e) retain records of access to EDR and emails.[26] He explains that when an employee joins a James Hardie Group company, theyget access to a shared drive on one of the servers used by their employer. They alsoget access to the relevant departmental drives on that server. Exceptions to theserestrictions must be approved by him or a local IT manager. He says, however, thatthe James Hardie Group does not have a defined system for requesting an exceptionto recording and storing requests and approval.[27] Individual employees may also store EDR in a personal folder and all personalfolders are deleted within 90 days after their employment with James Hardie isterminated. Individual employees may also store on company computers a leasesubject to a legal hold EDR, stored in employee-issued computers and deleted within90 days. They may also store EDR in a folder that can be shared with other employeesand only IT administrators can grant access to that company's shared folders toemployees of another James Hardie company. There is no record kept of access givento shared folders or which individual employees were given access. He also says thereis no IT administration policy regarding the naming or organisation of shared orpersonal folders. He also says that emails created or received by any James HardieGroup employee prior to 1 April 2006 are no longer archived and were permanentlydeleted at about that time from the Irvine California server.[28] He also refers to the process of verifying access by the defendants. He saysthat the fact that the documents were stored on Australian servers means that they werecreated or utilised by employees of James Hardie Australia Pty Limited and/or JamesHardie Research Pty Limited. But he cannot say which of those companies had accessto the documents in each folder. He notes that were he to try map the employees thathave access to particular folders of their employer, it would show that IT employee'semployer as having access to the folder. He says:Based on the above exercise, and my knowledge of James Hardie's Group ITsystems, I consider it would be impossible to say with any reasonable certaintywhich companies in the Group have access to all of the electronic documentsthat have been discovered in this proceeding.[29] He says that while it is possible to identify the server that the document camefrom and technically possible to list all of the employees with current access to thefolder, it is not possible to say whether those employees had access to the folder whenthe document was created or at any time in the past.Mr McKenzie[30] Mr McKenzie reviewed the evidence of Mr Smith. He refers to the "ActiveDirectory" which performs a critical function for all Windows domain networks. TheActive Directory verifies user credentials and identifies access rights to server foldersand other objects. He says the active directory could be queried in order to obtain alist of current permissions of all employees.[31] He also refers to native electronic versions of documents which he says canassist in identifying which user had access to which documents on a server becausethey store original metadata, including authors, creation dates and modification dates.He notes that there are three types of documents commonly produced in the course ofe-discovery:(a) Native documents (i.e. an extract of the original);(b) "Printed to PDF" documents which are converted versions of the samedocument and maintain some original metadata; and(c) "Imaged as PDF" documents which are effectively a recreation of theoriginal but do not retain any metadata.[32] He notes that Mr Smith says he is able to check the access permissions for eachfolder on the server, but he does not say whether other metadata could also be accessedusing the server. He says that he would expect that if native versions of the documentwere stored on the server, then it would be possible to extract the metadata about eachdocument, including the original author, creation date and modification of thedocument.[33] Referring to email access to documents, he says that where an organisationaccesses requests by email, he would expect the email sent to/from IT would be storedin a mailbox for perhaps a year or longer. He also notes that Information TechnologyGeneral Controls (ITGCs) are regularly audited by a firm that provides IT audits whichresult in written reports and recommendations. He notes that none of the affidavits hereviewed show whether ITGCs were audited externally.[34] He also refers to sources of EDR. He says that Mr Petrie does not state whetherthe following potential sources of EDR have been searched:(a) Electronic non-email files located on employer-issued computers,laptops and any devices of any defendant;(b) emails of employees or officers of the seventh defendant; and(c) any Cloud-based storage services other than the "Saas platform".[35] He refers to an electronic discovery reference model and attaches a schematicof that. He notes that as part of the identification stage, human resource records canbe used to identify which employees to collect documents from. These employeesmay then be interviewed about when and how, potentially, EDR is stored.[36] He also expects that in relation to employee desktop computers, laptops,mobile devices and other Cloud-based data, that there would be backups of personaldirectories which would have been created, at least annually and retained for therequired duration, typically several years or more, in case of disaster.[37] He also examines the process to verify access by the defendants. He notesMr Smith's evidence that it would be impossible to say with any reasonable certaintywhich definition company had access to all of the electronic documents that have beendiscovered. He says that, in his opinion, the most comprehensive way of determiningwhether an individual person had access to a particular document, is to resolve thequestion of who had access to the folders when these documents were stored. In orderto match employees to the employer using HR records (including onboarding lists, orsimilar, used by management), it would be necessary to have the relevant metadata,being the server name and folder name for each document to cross-reference thisinformation against the HR records.[38] He then says it is possible to use the following information to ascertain whichindividual had access to which document:(a) Native copies of documents, or full lists of metadata;(b) active directive data;(c) IT schedules and notes regarding the configuration of the servers,folders, access etc;(d) email logs (from/to/cc/bcc dates etc) generated automatically by emailclient; and(e) manual coding techniques, i.e. visually inspecting the document.[39] As to emails deleted prior to 1 April 2006, he says it is not clear to him whetherthe statement refers only to employees who had left the James Hardie company by thattime or whether it extends to current employees. He also says Mr Smith does not statewhether there was a backup kept.Mr Littlewood[40] Mr Littlewood explains, in short, that tax law in this country ordinarily requiresthat documents be retained for at least seven years.Mr Ross[41] Mr Ross details his extensive experience as a director of multiple companiesand his direct experience with James Hardie's New Zealand business, as its auditorthrough the 1960s and 1970s. He made a number of observations:(a) He would expect there to be satisfactory arrangements whereby therecords of a particular company could be identified and accessed on acompany-by-company basis and that individual directors couldreasonably be expected to know whether documents relating to thecompany for which they were a director were either accessible andidentifiable or not.(b) He expressed surprise to read that all emails prior to 2006 had beendeleted, around April 2011. He says that the apparent approach takenby James Hardie to document retention (including the collective storageof documents and the difficulty of ascertaining details of materialsstored in various locations) is contrary to, what he believes, the dutiesof a New Zealand director would be.(c) Contrary to the apparent experience of Mr Russell Chenu (who hadresponsibility for the financial management and financial complianceof the James Hardie Group), he would have expected to be advised asa director of a holding company of any potential liability issue orconsequence that might arise in any of its subsidiaries, particularlygiven that the directors of the holding company are those reporting toshareholders.(d) He said it would have been a relatively normal procedure within aglobal group, such as James Hardie, that indemnities would be providedto directors of subsidiary companies and to the companies themselves,particularly where the asset base of those subsidiaries was notparticularly high. He said it would be normal for the directors of eachcompany to either have cover through the captive insurer or throughexternal insurers as directors' and officers' liability cover, which isrelatively normal, and where most product companies would havesatisfactory levels of cover for the boards of each subsidiary company.Ms Heasley[42] Ms Mary-Claire Heasley refers to and attaches correspondence between thesolicitors regarding privilege claims, confidentiality claims and "irrelevantdocuments". She also attaches, further insurance documents; masked documents; anda chronology of all documents discovered by the defendants which contain the phrase"group management team", or "GMT", or the phrase "regional management team", or"RMT". She also includes, an extract from the current edition of the articles ofassociation of the seventh defendant; a list of search results from the United States andSecurities' website generated by searching for "James Hardie Industries"; and anextract from a relevant report for the period to 31 March 2003.Ms Nola[43] Ms Nola attaches additional correspondence between the solicitors. She alsonotes that in her experience, it is unusual for a case involving 28,000 documents, ofwhich a majority are hard copy, to include the names of individual authors andrecipients, in addition to company authors and recipients. She also says that the listingsought by the White plaintiffs will not assist them with their goal. That is, they willstill be required to search across the data set to isolate documents pertaining to aspecific individual. She notes, if James Hardie were to additionally list individuals'names and the author and recipient modes, it would take two full-time employees, andan additional five weeks, at a cost of approximately $50,000.[44] She says that she understands the plaintiffs requesting that James Hardie relistand standardise its document descriptions. She anticipates this task would becompleted within 3.5 weeks at a cost of $8,000 to $9,000.[45] She says that James Hardie has already begun this process and relisted around11,000 of its 28,000 documents with updated authors/recipient entities (notindividuals) and document types in accordance with the list of "standard documenttypes for objective coding".[46] She refers to the request by the Waitakere plaintiffs to have the defendantsprovide confirmation of the document types used during its initial review ofdocuments and provide a list of documents that were used when loading documentsonto the defendants' review platform. She says that no single list exists as thedocument types have been coded over many years based on common types or the waya document is titled or described on its face (as is common/accepted practice in anytypical discovery exercise). However, to assist the Waitakere plaintiffs, she attachesSchedule C in an attempt to prepare a list of the sort requested. She does not believeit is possible to further sort the remaining document types not listed in that schedule.[47] She also refers to the request that James Hardie apply a range of additionalmanagement-related search terms. She ran a number of additional search terms acrossoff-shore custodians, corporate affairs areas of the server and all hard copy documents.She says that the defendants will review approximately 2,700 responsive documentsfor relevance and discover any open documents, and that any further open documentswill be discovered by late April 2020.[48] She also notes that the White plaintiffs have proposed a different list to theWaitakere plaintiffs. She has run some preliminary searches using the proposed termsand found the searches would yield over 130,000 new documents to review. She saysit is highly unusual in her experience to take such a vast list of additional and broadsearch terms at such a late stage.Priority discovery issues for White plaintiffs[49] The White plaintiffs identify the following key discovery issues:(a) The extent of searches;(b) identification of custodians;(c) additional search items required;(d) discovery of further documents within scope; and(e) the scope of privilege.[50] The White plaintiffs were content to have items (d)-(e) addressed at asubsequent hearing. As to items (a)-(c), the plaintiffs complain that key documenttypes have not been discovered (electronic non-mail, emails of employees of theseventh defendant, and Cloud-based documents, except the Saas platform), all emailspre-2006 were destroyed, only a limited class of custodians were identified, and thepresent search terms are manifestly inadequate.[51] To illustrate the claimed inadequacy, Mr Gray referred to a memorandumbetween what appears to be two employees of a James Hardie company, Messrs JohnMoller and Peter McDonald. That memorandum states:John,This confirms our recent discussions at and since the GMT meeting regardingthe ongoing management of the NZ Leaky Buildings issue.This is an important issue in NZ and elsewhere. Consequently, the GMT willhave the ultimate sign off authority on the recommended strategy foraddressing this issue.[52] This memorandum is said to have obvious importance, as is the reference to"GMT". "GMT", I am told, stands for Global Management Team. Yet, Mr Graysubmits, no minutes or other documents specifically relating to decisions or directivesmade by the "GMT" have been discovered. This, he says, reveals:(a) The current extent of the search is deficient;(b) the search items must include specific reference to management relatedterms, GMT and the RMT (Regional Management Team); and(c) the need to be sceptical about how the defendants are approachingdiscovery, particularly in light of the decision to delete all pre-April2006 emails.[53] Mr Gray also says that there is no explanation whatsoever as to how the"custodians' were selected. He says the plaintiffs have identified a list of persons theyunderstand held management responsibility in the companies that should have beenincluded.[54] Mr Hodder responds that the "GMT" example in fact shows the effectivenessof the present search items and methodology. He says that there is no evidence tosuggest that the use of additional terms, including "management related terms" andadditional custodians will produce anything more than that already covered by thesearch terms previously identified by the plaintiffs as required to complete discovery.[55] Mr Hodder also submits that the latest amended application (the fourthapplication) represents a substantial addition to the previous application, requiring thedefendants to search an additional 130 terms. This, he says, is a hugelydisproportionate burden, given the very large discovery undertaken to date. He alsosuggested that I use the independent barrister approach adopted by Fisher J in ClearCommunications.1 In that case a Fisher J tasked independent counsel with theresponsibility of, among other things, reviewing masked documents to ascertainwhether they were privileged. This option was not, however, accepted by the Whiteplaintiffs.Assessment[56] The defendants did not have an adequate opportunity to respond to the latestamended application or the further round of evidence from the White plaintiffs.Therefore, I cannot fairly resolve the fresh issues raised by the White plaintiffs. In thisregard, I propose to convene a telephone conference for timetabling purposes. Thiswill also need to address timetabling in relation to items (d) and (e).[57] I nevertheless want to indicate where I am currently sitting on the Whiteplaintiffs' application:(a) Based on the evidence of Mr McKenzie, the defendants have notadequately explained whether specified document types (see [34]) havebeen discovered and if not, why not – this needs to be addressed.(b) A proper explanation is also needed as to how the custodians wereidentified, and why certain others have not been identified ascustodians. Unless an adequate explanation is forthcoming, my currentview is that all previous and current directors should be identified ascustodians.1 Clear Communications v Telecom Corporation of New Zealand CL 51/96, 22 July 1998 (HC).(c) The additional search terms "GMT" and "RMT" would appear to bejustified having regard to the role apparently played by the GMT andRMTs in relation to leaky building issues.(d) Save in respect of the request for searches of the terms "GMT" and"RMT", it is not clear to me why the existing search terms areinsufficient, and in particular:(i) Why and how existing search terms have failed to identifyrelevant documents;(ii) why and how the new search terms will identify additionalrelevant documents not already discovered; and(iii) why the new search terms are needed in respect of all categoriesof discovery.[58] In this regard, it is evident to me that the issues as to the scope of discoverywould benefit from caucusing between experts2 and a joint expert report to the Courtas to the need, efficacy, benefits and cost of expanded discovery. As I have not heardfrom the parties on this option I make no final order. But unless good reason can beidentified for not following this course, such an order can be anticipated.[59] I also wish to address a theme of the White plaintiffs' submissions, supportedit appears by the evidence of Messrs Ross and Littlewood, namely, that the defendants'approach to discovery should be treated with scepticism. I have already expressedconcerns about the collective approach to discovery in my Judgment (No 5). I alsoaccept that the method used to identify custodians and authorship is problematic. Thewholesale deletion of emails pre-April 2006 is also concerning. But it is important toacknowledge the extent of the discovery to date (as noted by Ms Nola) and thetechnical complexities involved in recovering information stored (either in hard or softcopy) over two or more decades (as noted by Mr Petrie and Mr Smith). Furthermore,2 For this purpose, an expert may include suitably qualified persons engaged by counsel in the discoveryexercise.a purposely broad frame for discovery (both as to categories of discovered documentsand search terms) was endorsed and then adopted at the outset. Any furtherbroadening of the discovery net (in the order of 130,000 additional documents asforeshadowed by Ms Nola) must be clearly justified given that already broad startingpoint. Mere scepticism about the defendants' discovery and apparent relevance willnot be enough.[60] The benefit of an inquiry by independent counsel is that a finer grainassessment of the relevance and importance of potential search terms (for example)can be undertaken. The Court cannot engage in an inquisitorial process of this kind(save perhaps with the assistance of a joint expert report). Any order I make is likelyto be a blunt instrument, based on a satellite view of relevance and proportionality.Bearing in mind the pressure already on the timetable, and the impact of the COVID-19 lockdown, I would therefore invite the plaintiffs to reconsider the usefulness of theindependent counsel process for the purpose of narrowing or clarifying the scope offurther discovery. It is also an obvious process to be used in relation to issues ofprivilege and masked documents.Priority discovery issues for the Waitakere Plaintiffs[61] The Waitakere plaintiffs identify the following key issues for resolution:(a) Compliance with listing and exchange protocols;(b) the failure to provide a schedule listing the position of each of thedefendants' employees; and(c) incomplete provision of documents regarding:(i) Class B – testing;(ii) Class L or I – risks, defects or liability, e.g. board materials; and(iii) Class J – insurance documents.[62] Dealing first with the claimed protocol non-compliance, Ms Meechan QC saysthe defendants' discovery failed to:(a) Identify the authors and recipients of documents; and(b) properly identify document types.[63] She submits that this failure clearly breaches the listing protocols in Schedule9, which relevantly states:3Protocol requirements(1) Parties are required to—(a) list documents, providing the following detail for each document:(i) document ID:(ii) date:(iii) document type:(iv) author:(v) recipient:(vi) parent document ID:(vii) privilege category; and(b) exchange documents electronically by way of—(i) a single, continuous table or spreadsheet, with each column exclusivelycontaining the detail from paragraph (a); and(ii) multi-page images in PDF format (or another format if agreed).[64] Ms Meechan identified several documents which simply refer to the author as"James Hardie" and to documents where the author and the recipient were identified3 High Court Rules 2016, Schedule 9, Part 2, cl 6(1)(a)-(b).as "James Hardie". She also noted that currently there were 2,552 document types.This unnecessarily presented the defendants with great difficulties in isolatingimportant documents.[65] Mr Hodder responds that the defendants have adequately complied with theprotocol in terms of identifying the author and/or recipient of documents byidentifying, where applicable, James Hardie is responsible for the document. He notesthat the protocol expressly envisages referring to authors by reference to an individualor an organisation. He says the defendants are prepared to further refine the discoveryby reference to specific companies. He also notes that complying with the plaintiffs'request would cost between $35,000 (specific company) and $80,000 (individual).[66] He also says the defendants are happy to provide generic or standard documenttypes, but that the plaintiffs do not want that. He says that the more refined descriptorsused were designed to assist the defendants in the discovery process. However, he doesnot accept it is necessary to adopt a hybrid approach, where in effect the defendantsare producing a schedule of document titles for the plaintiffs.Assessment[67] I am satisfied that "author" may include an individual or an organisation. Thelisting protocol literally contemplates as much. I also acknowledge Ms Nola'sevidence as to standard practice and the scale of the task required to identify authorsand recipients. But I am also satisfied that the obligation to discover individual authorsis appropriate where those individuals can be identified. In this regard, the discoverychecklist refers to "individuals" in several places, which serves to illustrate thesignificance of identifying individuals in the discovery process. These references areas follows:(a) The parties must identify the individuals likely to have the documents(r 1(b)(i));(b) the parties must endeavour to agree a proposal in relation to thediscovery order that should be made with respect to categories, by forexample, specifying key individuals (for example those who arecompany directors or are at a specified management level) (r 3(2)(a)(i)(D)); and(c) the parties may agree on whether to initially select categories (forexample date ranges or key individuals) (r 3(2)(b)(ii)).[68] Moreover, I prefer an approach to discovery that best serves its underlyingpurpose, namely, ensuring in an efficient and proportionate method so that the partiesand the Court have the benefit of the relevant contemporaneous record. In this case,that clearly requires identification of individual authors rather than just the name of acompany. The latter approach simply obscures the significance of the document interms of a key issue at trial, namely that of attribution. This is particularly importantif, as Mr Smith says, attribution to particular companies of possession of documentsis problematic. Thus, identification of author and recipient has heightened importance.Mr Hodder's complaint that it will cost an additional $80,000 dollars is a neutral point.This is because, if the defendants do not do it, that plaintiffs will have to incur thatcost in isolating the key individuals responsible for the document. The defendants,who are responsible for the discovery, are plainly better placed to undertake thatexercise.[69] I make an order that the defendants must identify the authors and recipients ofthe documents listed.[70] Sensibly, the parties agreed that they should confer about "document types".They shall have 10 working days to do so. If agreement cannot be reached, then theparties are to file their respective lists. As signalled, I will resolve this aspect, ifnecessary, on the papers. Alternatively, I reserve leave to the parties to employ theassistance of independent counsel in conjunction with the process to be followed inthe White proceedings.Identification of employees[71] This leads to the second main issue, namely, whether the defendants need toidentify the relevant positions of the custodians within the defendant companies.Ms Meechan submits that this naturally follows from the decision of the defendants toname the custodians. Mr Hodder responds that there is no obligation to do so, and inany event it is likely to be difficult to identify their positions now, given the time spanof the discovery process.Assessment[72] I agree with Ms Meechan that identifying the position of each of the custodianswithin each of the defendant companies logically follows the decision by thedefendants to identify the key individuals as custodians. While not a point made inargument, it corresponds with the object of r 3(2)(a)(i)(D) (mentioned previously) toprovide tailored discovery by reference to key individuals (e.g. company directors). Itcannot be that they were selected at whim or by speculation as to whether they werekey individuals. Certainly, no evidence that they cannot be identified has beenproduced.[73] I make an order requiring the position of the custodians to be identified withineach of the defendant companies accordingly, with leave reserved to the defendants toprovide evidence in relation to those individuals to which they cannot attribute acompany position.Incomplete provision of documents[74] There appears to be some agreement that not all documents have beenproduced and the defendants are working hard to produce them. Ms Meechannevertheless wants a line drawn in the sand, with unless orders made if discovery isnot complete by 31 March 2020. Mr Hodder resists on the basis that discovery hasbeen a difficult exercise, involving, for example, reluctant third parties. He says anorder extending time to a specified date is appropriate, but an unless order would beexcessive.[75] I agree that a line must be drawn, but it would not be fair to impose an unlessorder. While the defendants have not strictly complied with the timetabling to date,discovery has been mobile, with some of that mobility encouraged by the plaintiffs (inboth proceedings). It is also necessary to observe that the defendants have additionaltasks, agreement has to be reached on the document types, and independent counselmay yet become involved. In this context, a final unless order is not appropriate.Instead, I reserve leave to the Waitakere plaintiffs to, report to the Court on theprogress in relation to the above matters and the finalisation of the discovery process;and to seek such orders they consider necessary to secure the finalisation of discovery.Outcome[76] In the White proceeding, the registrar will liaise with counsel about a date andtime for a telephone conference for the purpose of timetabling the amended applicationto a hearing and to discuss any remaining matters to be resolved. In this regardconsideration must be given to provision for expert caucusing and a joint report to theCourt on the efficacy of expanded discovery, including the need for and likely benefitsof further search items and the likely cost of the expanded discovery. Such reportwould need to address the issues identified by me at [57](d). Unless good reason fornot pursuing this course is provided, an order directing such an approach can beanticipated.[77] Furthermore, I invite the parties to reconsider engagement of independentcounsel to review the need for the additional search items and more broadly to assistin the resolution of remaining discovery issues.[78] A realistic approach to timetabling is also required given the COVID-19lockdown. Consideration should be given to the effect on the timetable for evidenceexchange and the fixture. And whatever the approach, finality must be brought to thediscovery process. Memoranda (preferably joint) are to be filed 2 working days inadvance of the conference.[79] In the Waitakere proceedings:(a) The defendants must, where possible, identify the individual authorand/or recipient of a document;(b) the plaintiffs and defendants are to endeavour to agree to an amendedschedule of document types within 10 working days;(c) if agreement is not reached the parties are to file their own proposeddocument types for my approval;(d) the defendants must identify the employee positions of the custodians,with leave reserved to them to file an affidavit in respect of thoseindividuals for which employee positions could not be identified;(e) I decline to make an unless order, however, I reserve leave to theWaitakere plaintiffs to report to the Court on any progress in relation tothe above matters and the finalisation of the discovery process; and toseek such orders they consider necessary to secure finalisation of thediscovery process;(f) costs are reserved pending the outcome of the processes mentionedabove; and(g) the registrar will liaise with counsel to identify a day and time for atelephone conference, in conjunction with the conference in respect ofthe White proceedings, for further timetabling. Memoranda (preferablyjoint) are to be filed two days in advance of the conference.