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10 November 2009
In Todd Pohokura Ltd v Shell Exploration New Zealand Limited(1) the High Court considered whether attachments to emails must be produced for inspection as part of the discovered emails to which they are attached.
The parties to the litigation were parties to a joint venture for the exploitation of the Pohokura oil field. The litigation is still at the interlocutory stage, but already has a protracted history. An earlier series of interlocutory applications was considered in a July 2008 judgment, which included consideration of the discovery of email chains (for further details please see "Email Chains: Discovery Obligations"). The emails had apparently been provided as hard-copy printouts and only the last email in each chain had been provided. The court held that each individual record of an earlier email in the chain was a separate document; therefore, it had to be separately listed and numbered for the purposes of discovery.
In the recent hearing the court had to consider, among other things, whether the inspection of discovered emails extended to email attachments.
Todd applied for discovery of what it considered to be missing attachments, which were files that were attached to and referred to in discovered emails. Shell defended the application on the basis that the attachments were irrelevant to the issues in the proceeding, relying on ANZ National Bank Ltd v Commissioner of Inland Revenue(2) as authority for the proposition that reference to a document in a discovered document does not render the undiscovered document presumptively relevant.
The court accepted Shell's submission that the attachments were not automatically relevant; therefore, it went on to consider the relevance of each attachment separately. Most, but not all, were held to be relevant in their own right and therefore had to be discovered. The court clearly viewed the attachments as separate documents, rather than as parts of a single electronic communication.
Taken together with the previous interlocutory judgment of July 2009, this decision demonstrates the conceptual difficulties that can arise from the discovery of emails. Most of the difficulties stem from approaching such discovery by treating a printout of an email as the document itself. An email is an electronic communication potentially comprising many components, including any attachments. A printout of an email is not a duplication of it, but rather a physical representation of the limited information produced by the print function of the email application. Much useful information held in the electronic file does not appear in a printout. Strictly speaking, an email should be discovered in its original form as an electronic file, rather than as a hard copy; otherwise, discovery gives rise to the kinds of issue considered in this and the earlier decision.
Viewed as an electronic document, an email includes all of its elements, such as the reproduced copies of preceding emails in the chain and any attachments. As a single communication, an email would be discovered as a whole, not artificially carved into smaller pieces as the result of the limits of the print function of a particular email application. If emails are viewed in this way, the result would be production of the entire electronic communication. This is not inconsistent with the rule established by ANZ National Bank Ltd v Commissioner of Inland Revenue, which concerned documents, such as letters, referred to in the content of an entirely separate document, such as a file note. Such documents clearly exist separately from one another and thus do not form constituent parts of a single communication, whereas an email and its attachments arguably constitute a single electronic communication (although the applicant did not advance the argument in this way). A reference to an attachment in an email is a reference not to a separate document, but to part of the same communication. If an email is considered relevant, all of its constituent parts must be discovered as a whole, just as an entire letter would have to be discovered if only a single paragraph were relevant.
If the parties had begun by providing electronic discovery of relevant emails, the conceptual difficulties that have arisen from treating electronic documents as equivalent to printouts would have been avoided. When parties choose to exchange only hard-copy representations of the emails, regard must be had to the type of document that is being provided and to what the court will understand by the term 'document'. By endorsing the treatment of emails as no more than their printouts, the court's decision has encouraged parties to choose to provide discovery of emails in printout form only because the court's analysis (ie, treating attachments and quoted prior emails as separate documents) potentially favours the producing party in such cases. The applicant would have been in a stronger position if it had insisted on discovery and inspection of the electronic files, rather than the printouts.
For further information on this topic please contact Chris Browne or Felicity Monteiro at Wilson Harle by telephone (+64 9 915 5700), fax (+64 9 915 5701) or email (firstname.lastname@example.org or email@example.com).
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