CRAIG v SLATER & Anor [2017] NZHC 740

CRAIG v SLATER & Anor [2017] NZHC 740

Where electronic documents that may be relevant to issues in dispute have been deleted, the High Court may, under HCR 9.34, order inspection of identified computers and devices by a party's nominated expert to determine whether material can be retrieved; such inspection may be observed by the other party's expert and subject to confidentiality and procedural conditions, and any retrieved documents are then subject to normal discovery obligations. HCR 8.3 imposes a preservation obligation but the appropriate practical remedy here is controlled expert inspection rather than an open general order for discovery.

Citation
[2017] NZHC 740
Parties
Plaintiff and Counterclaim Defendant: Colin Graeme Craig; First Defendant: Cameron John Slater; Second Defendant: Social Media Consultants Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
10 April 2017
Procedural Posture
Defamation (defamation Act 1992) / Pre Trial Interlocutory Application for Inspection and Further Discovery Before Trial Scheduled 8 May 2017
Outcome
Application granted in part.
Legal Topics
Preservation of Documents, E Discovery, Inspection Orders, Discovery Remedies, Confidentiality of Expert Reports
Civil Procedure Evidence Defamation Electronic Discovery High Court Rules Preservation of Documents E Discovery Inspection Orders +2 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 3 Authorities cited 4 Party arguments 2
Sign in to unlock

Parties

Colin Graeme Craig

Plaintiff and Counterclaim Defendant

Cameron John Slater

First Defendant

Social Media Consultants Limited

Second Defendant

Procedural Posture

Defamation (defamation Act 1992) / Pre Trial Interlocutory Application for Inspection and Further Discovery Before Trial Scheduled 8 May 2017

Legal Issues

  1. 1 Whether deletion of electronic documents breached HCR 8.3 and what remedies follow
  2. 2 Whether the Court can order inspection of computers and electronic devices under HCR 9.34 to determine retrievability of deleted material
  3. 3 Appropriate conditions and limits on expert inspection and use of any retrieved material

Ratio Decidendi

Where electronic documents that may be relevant to issues in dispute have been deleted, the High Court may, under HCR 9.34, order inspection of identified computers and devices by a party's nominated expert to determine whether material can be retrieved; such inspection may be observed by the other party's expert and subject to confidentiality and procedural conditions, and any retrieved documents are then subject to normal discovery obligations. HCR 8.3 imposes a preservation obligation but the appropriate practical remedy here is controlled expert inspection rather than an open general order for discovery.

Court Disposition

Application granted in part.

Orders

  • Defendants to make available for inspection any computers identified by name through which documents saved on Google servers might have been retrieved and through which documents might have been transmitted.
  • Plaintiff authorised to arrange inspection of those identified computers by his nominated computer expert; inspection may be observed by defendants' expert.