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[2010] ZAGPJHC 107
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John and Others v Hi-tech Inks (Pty) Limited and Another (09/22543) [2010] ZAGPJHC 107 (10 November 2010)
NOT REPOTABLE
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO
:
09/22543
DATE:
10/11/2010
In the matter between:
JOHN,
ALEXANDER JUSTIN
.................................
First
Applicant/Respondent
SIEGWERK
SOUTH AFRICA (PTY) LTD
.............
Second
Applicant/Respondent
JOHN,
PROBASHNIE
..............................................
Third
Applicant/Respondent
DAVIES,
PETER
........................................................
Fourth
Applicant/Respondent
WHITWORTH,
EMERSON
.......................................
Fifth
Applicant/Respondent
and
HI-TECH
INKS (PTY) LIMITED
.........................................
First
Respondent/Applicant
SECUREDATA
SECURITY SERVICES (PTY) LTD
.....
Second
Respondent
______________________________________________________________
J U D G M E N T
______________________________________________________________
LAMONT, J
:
[1] This is an application
brought by the applicant to condone the sixth respondent’s
failure to timeously file a report
and for certain further relief.
[2] During June 2009 the applicant launched an application for what
is colloquially known as Anton Piller relief. Pursuant to
the
application the applicant was afforded relief. Subsequently the order
which was made was varied by consent. Under and in terms
of the order
as amended:
The sixth respondent at a point
in time was entitled to commence with the inspection and search of
original hard drives together
with electronic storage devices “
for
the purposes of identifying and pointing out any of the items
identified in Annexure B to the Anton Piller order
”.
Within 14 days of the completion of the inspection and search the
sixth respondent was to furnish the legal representatives with
a
report identifying the items, if any, falling within any category
listed in Annexure “B” aforesaid.
Within 5 days of receipt by the
attorneys of such report (during which period the applicants’
attorneys were to maintain
the report as confidential to themselves
and their legal counsel) the respondents would be entitled to
deliver a notice in writing
to the applicants’ attorneys of
record identifying such portions of the report of the sixth
respondent as the respondents
objected to being disclosed to the
applicant on the grounds of confidentiality. Those portions were
thereafter not to be disclosed
to the applicant other than pursuant
to the order of court or by agreement.
The sixth respondent was required not to disclose or disseminate any
information it found other than as set out in the order.
Unless a different direction was obtained from the court the
applicant and its attorneys would become entitled to inspect the
items identified as forming part of Annexure “B” 7 days
after the report had been provided.
[3] Annexure “B” to the original order set out a variety
of categories of documents listing various documents in which
the
applicant would have a proprietary interest and various other
documents which were relevant to issues which would be canvassed
in
the trial and which were to be preserved.
[4] The sixth respondent in due
course conducted the search contemplated and produced a report. In
the report the sixth respondent
referred to various items which it
had discovered by a procedure which I will set out below and also in
certain circumstances the
actual document which had been identified.
The documents with which the report primarily was concerned and which
primarily forms.
The subject matter of the issue before me were
documents in electronic format and the reproduction of the documents
is similarly
in electronic format.
[5] The report was not timeously
filed. The reason the report was not timeously filed was due to the
sixth respondent seeking
and obtaining legal advice concerning the
report which resulted in a delay and also in the sixth respondent
producing a different
but (common cause between the parties)
meaningless non-compliant report.
[6] The second, fourth and fifth
respondents (hereafter referred to as the respondent) objected to the
method which the sixth respondent
had used to identify documents
which the sixth respondent identified as forming claimed form part of
Annexure “B” and
further objected to the fact that in the
report the sixth respondent had disclosed the actual documents.
[7] The methodology of the sixth
respondent so it was submitted had resulted in documents personal and
confidential to the respondent
being produced and disclosed to the
applicant and had also resulted in inconvenience as a large number of
documents had been discovered
and been referred to in the report as
constituting documents contemplated by Annexure “B”. The
sixth respondent employed
certain word search criteria in conducting
the search for electronically kept documents. The sixth respondent
required the computer
to produce documents containing words which
were believed to be unique to the applicant and so for example there
was a search for
the applicants’ unique product codes for
specified customers, for unique brand names used by the applicant,
certain unique
words which the applicant believed were specific and
particular to it. There was a further limit placed upon the
production of
data by limiting the period of time over which the
search was made to a time when it was anticipated the data would have
been transported
from the applicant and placed upon the storage
devices being inspected. There were also searches for words
describing particular
types of item which are unique to the applicant
and words which the applicant had used incorrectly but which would
not be used
incorrectly by a person who innocently used them in the
context of the documents being sought. The search programme used by
the
expert employed by the sixth respondent has a 98-99% accuracy.
While there may be false hits in the results of search the false
hits
should be extremely limited and be readily identified. Some 30 000
hits were discovered. A hit is the presence of a word.
The number
of documents represented by the hits constituted some 3 000 pages.
[8] The respondents complained
that a large number of irrelevant items had been discovered and that
that was apparent from the
number of hits (30 000 ) and also as
certain keywords were generic and/or words not uniquely used by the
applicant.
[9] The respondents accordingly
attacked the report on the basis that:
(1) the methodology did not
produce documents which the sixth respondent would be able to say
were documents contemplated
by Annexure “B”.
(2) the report contained
harmful and confidential information in that original documentation
which if inspected would yield
data confidential to the
respondents.
METHODOLOGY
[10] The submission was made
that the very fact there were 30 000 hits was resultant number of
pages were evidence of the failure
of the methodology and it
constituted an abuse to require the respondent to trawl through so
many documents to deal with the issues
contemplated by the order.
[11] As to the methodology the
evidence of the expert used by the sixth respondent is that the
methodology used is the best available
methodology, that he used the
methodology, considered the documents and formed the opinion
contained in the report. The fact that
a large number of documents
were discovered evidences only the extent of the use of confidential
information on the basis of the
evidence given by the expert. It is
illogical to assume that because a large number of documents were
discovered that the search
was inappropriate.
[12] It seems to me that it is
proper to approach the search on the basis of looking for the least
commonly used keywords. Such
keywords would be words used
particularly by the applicant and less commonly by others. The expert
having limited the ambit of
the documentation was able to inspect and
form his opinion as required. The product of the search would contain
at the least all
the allegedly offensive documents. By its very
nature a search of this nature will yield more than the offensive
documents. This
feature of the search must give way to the right of
the applicant in enforcing the order to obtain every single one of
the documents
it claims is offensive.
[13] In my view the search was
the most effective search which could be conducted in the
circumstances and hence must be and is
the search contemplated by the
order.
ORIGINAL DOCUMENTS
[14] The second complaint is to
the fact that the sixth respondent included original documents in the
report. It was submitted
that the sixth respondent was required to
report rather than to produce the documentation. This submission was
founded upon an
inference dependant in turn upon the manner in which
the order was formulated. The order required as a first step that the
expert
was to inspect electronic devices for the purposes of
identifying and pointing out any of the items identified in Annexure
“B”.
The second step was that the sixth respondent
furnish the applicants’ and respondent’s representatives
with a report
identifying the items falling within the category
listed in Annexure “B”. The report was to be kept
confidential by
the applicant’s legal representatives during a
period to enable the respondents to deliver a notice identifying
portions
of the report as they objected to being disclosed on grounds
of confidentiality. Those portions were not to be disclosed unless
there was further agreement or order of court. Only thereafter would
the applicant inspect the items identified.
[15] It was submitted that the
procedure was crafted with a view to affording
the respondents an opportunity
to prevent disclosure of certain
documents to which they objected. Hence, so went the argument, the
report was objectionable as
it itself identified and disclosed items
before the respondents had an opportunity of preventing disclosure.
[16] The sixth respondent was
not instructed by the order as to the method by which he was to
identify items and/or the contents
of the report. It was open to the
sixth respondent to identify the items in such manner as it wished
and to furnish the report
in such manner as it wished, subject only
to it fulfilling the objective of the activity namely the
identification of items falling
within Annexure “B”. The
sixth respondent found it convenient to identify the items by way of
producing them in the
report. No portion of the order made directing
it to furnish the report itself conflicts with that methodology and
description.
[17] The form of the order
included a direction which enabled the respondents to prevent
disclosure of documents to the applicants
on the grounds of
confidentiality. The existence of this direction does not warrant the
inference that disclosure of all documents
could not be made of to
the applicant’s attorneys. The order is clear that the report
is to be kept confidential by the
applicants’ attorneys until
such time as the respondents have had an opportunity to object to the
particular documents they
wished to object to on the grounds of
confidentiality. No disclosure of the documents takes place in these
circumstances. Accordingly
in my view it cannot be said that the
procedure by which the respondents would object to disclosure was
rendered nugatory by the
identification of the documents by way of
producing the document in the report.
[18] Accordingly in my view the
sixth respondent was entitled to identify the documents by way of
producing the documents as was
done.
TRACING
[19] It remains only to consider
whether or not the fact that 3 000 documents were discovered imposes
an unbearable burden upon
the respondents. In my view if the
documents discovered are the documents identified by the sixth
respondent as being documents
referred to in Annexure “B”
then the fact that there are many does not affect the obligation of
the respondent to deal
with them. It may affect the time within which
the respondent should be allowed to deal with them.
[20] The applicant has indicated
that it is prepared to allow the respondents such additional time as
may be necessary to enable
the respondent to embark upon the next
step in the procedure namely the identification by the respondent of
those documents which
are not to be disclosed by reason of their
confidentiality. I was handed a draft order allowing an additional
period of time than
that originally contemplated. The additional time
appears to be fairly allowed. If it proves insufficient it is a
simple matter
for a variation to be obtained.
[21] I accordingly make an order
in terms of the draft which I have marked “X” as amended
by myself.
_____________________________
C
G LAMONT
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
Counsel for First Respondent/Applicant : Adv. D.M. Fine SC
Adv. A.J. Eyles
Attorneys for Respondent/Applicant : Leigh Patterson
Attorneys
Counsel for Second, Fourth
and Adv. A. Subel SC
Fifth Respondents : Adv. Giblert
Attorneys for Second, Fourth
and
Fifth Respondents : Allan
Levin & Ass
Date of hearing : 27
October 2010
Date of judgment :