IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CIV-2015-404-2981 (WHITE)
[2020] NZHC 685	

BETWEEN	KAREN LOUISE WHITE AND THE PERSONS LISTED IN SCHEDULE 1
Plaintiffs	
AND	JAMES HARDIE NEW ZEALAND
First Defendant

STUDORP LIMITED
Second Defendant

JAMES HARDIE NZ HOLDINGS
Third Defendant

RCI HOLDINGS PTY LIMITED
Fourth Defendant
…/cont	

Hearing:	18 March 2020	
Counsel:	B Gray QC, A Thorn, R Havelock for White Plaintiffs
C M Meechan QC, C Gordon, S M Sharma for Waitakere Plaintiffs
J Hodder QC, J A McKay and L Fraser for Defendants	
Judgment:	3 April 2020	

JUDGMENT (NO 7) OF WHATA J

This judgment was delivered by me on 3 April 2020 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

WHITE & ORS v JAMES HARDIE NEW ZEALAND & ORS [2020] NZHC 685 [3 April 2020]

JAMES HARDIE AUSTRALIA PTY LIMITED
Fifth Defendant

JAMES HARDIE RESEARCH PTY LIMITED
Sixth Defendant

JAMIES HARDIE INDUSTRIES PLC
Seventh Defendant

CIV-2015-404-3080 (WAITAKERE GROUP LIMITED)

BETWEEN	WAITAKERE GROUP LIMITED & ORS
Plaintiffs	

AND	JAMES HARDIE NEW ZEALAND
First Defendant

STUDORP LIMITED
Second Defendant

JAMES HARDIE NZ HOLDINGS
Third Defendant

RCI HOLDINGS PTY LIMITED
Fourth Defendant

JAMES HARDIE AUSTRALIA PTY LIMITED
Fifth Defendant

JAMES HARDIE RESEARCH PTY LIMITED
Six Defendant

JAMES HARDIE INDUSTRICES PLC
Seventh Defendant	

[1]	I have before me various applications by the plaintiffs in both relevant proceedings in respect of discovery. This matter was heard on 18 March 2020. Leave was granted to file memoranda in relation to engaging independent counsel to assist with the remaining discovery issues. The last of the memoranda was filed on 26 March 2020. The plaintiffs did not wish to employ independent counsel. I therefore proceed to judgment, though for reasons stated herein, the amended White application of 12 March 2020 is adjourned.

Background

[2]	The background to this litigation has been canvassed in several judgments already. I do not repeat it here. It is necessary, however, to outline certain aspects of the 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 the plaintiffs’ discovery, including, listing items in the defendants’ control, using particular 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 be discovered by the defendants. With those orders I issued Minute (No 19), dated 13 May 2019, making specific orders as to dates for providing tranches of discovery by specified defendants, with a final tranche of discovery to be provided by all defendants by 13 September 2019.

The second application (29 November 2019)

[5]	In this application, the White plaintiffs sought orders, that the defendants individually file and serve sworn affidavits of documents; or, alternatively, that they file and serve a joint affidavit but specify for each document which defendant company had control prior to the joint discovery process; for leave to seek orders in respect of the adequacy of Technology Assisted Review (TAR); that additional search terms and

reasonable variations be used; for general leave for further orders as necessary; and for costs.

[6]	The defendants filed a notice of opposition to this application on 13 December 2019. They contended that the orders sought are disproportionate, oppressive and unnecessary in the circumstances; and further that a number of the orders sought were trivial and seek rigid compliance with the High Court Rules where it would serve no useful purpose and run counter to the overall objectives of discovery. They maintained that the collective discovery response by all the defendants, and the use of TAR, was appropriate. Lastly, they objected to having to use additional search terms as unnecessary, as well as having to relist the table of documents in accordance with the specific James Hardie entity which had control of each document because that information in practice would not always be ascertainable.

The third application (6 December 2019)

[7]	The Waitakere plaintiffs then applied for discovery orders seeking that all seven defendants provide a revised affidavit of documents that meets the obligations of the High Court Rules, as well as the orders for tailored discovery made in 2018 and 2019, and addresses various matters set out in a schedule.

[8]	The defendants opposed this application, providing a schedule that corresponds 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 of plaintiffs. The plaintiffs claimed in that memorandum the defendants had failed to comply with my directions and discovery orders. The plaintiffs prepared a schedule itemising each of the alleged non-compliances.

18 December hearing

[10]	I heard in part the applications for discovery on 18 December 2019. The focal point of those applications concerned whether the defendants were obliged to discover documents in their individual possession, rather than collective possession. I resolved

that 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 the Court of Appeal.

[11]	The remainder of the applications were set down to be considered on a date in March this year, following updating memoranda by the plaintiffs as to progress in accessing the balance of discovery.

The fourth application (12 March 2020)

[12]	I received updating memoranda indicating, in short, that the parties had not reached agreement so a further hearing on issues relating to discovery would be necessary.

[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 the Court on 31 October 2018, 9 November 2018, 13 May 2019 and 4 July 2019 (the Discovery Orders), each of the defendants must individually file and serve a sworn affidavit of documents by 1 May 2020 or a date to be fixed by the Court which:

(a)	gives sufficient particulars of:

 (i)	all  of  the  types  of  documents  (hard  copy  and
 electronic) which were collected or ought reasonably
 to  have  been  collected,  reviewed  and  discovered,
 including the types of documents listed in Schedule 1
 to this Application;

(ii) the steps taken by that defendant to fulfil its discovery obligations, including listing all the persons of whom that defendant has made or ought reasonably to have made inquiries (including, but not limited to, the persons in Schedule 2 to this application);

(b)	includes the particular documents listed in Schedule 3 to this application, being documents within the scope of the Discovery Orders, but which the defendants have failed and/or refused to discover in accordance with the applicable timeframes;

(c)	 specifies an author and/or recipient of each document to the
 extent that these can be determined in whole or part on the
 face of the documents.

2.	Using methods and strategies to be agreed with the plaintiffs (or determined by the Court in the absence of agreement), the defendants search for and discover (by 1 May 2020 or a date to be fixed by the Court), relevant documents using the additional search terms in Schedule 4 to this application together with appropriate variations (the Additional Search Terms).

3.	 The defendants produce copies of the documents in Schedule 5 for
 inspection by the Court for the purposes of deciding the validity of the
 privilege claimed, and in accordance with any subsequent order of the
 Court, discover copies of any documents in respect of which privilege
 is set aside or modified.

4.	 The defendants produce copies of documents which they have masked
 for alleged “irrelevance” (as listed in Schedule 6) for inspection by
 the Court, and in accordance with any subsequent order of the Court,
 discover  unmasked  copies  of  any  documents  which  the  Court
 determines are relevant.

5.	Leave be reserved to the plaintiffs to apply for such further orders as may 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 have identified the discovery issues they say remain unresolved. They have subsequently identified what they call the “priority discovery issues”, namely:

(a)	Protocol non-compliance – these are broadly summarised as the failure to 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 the position for each of the defendants’ employees listed at 4.2 and 4.3 of the affirmation of documents filed on behalf of  the defendants  dated 5 November 2019 (referred to as the Petrie November affirmation) and which entity/name each defendant the employee worked for.

(c)	Document gaps – the incomplete provision of documents in respect of Class 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 fourth application in time for the hearing before me. However, in a memorandum of counsel dated 17 March 2020, the defendants helpfully provided a schedule of combined outstanding discovery issues. On each issue, the table explains:

(a)	Where the item in question was raised with the Court (by reference to either applications, memoranda, or both);

(b)	the current position on the issue of both sets of plaintiffs – including whether 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 the search items and the addition of further custodians. They also propose specific actions in relation to some of the matters raised by the plaintiffs. I address their specific arguments and actions, where relevant, below.

Evidence

[17]	The White plaintiffs have filed affidavits by Anthony Michael Littlewood (tax lawyer), David John Ross (director) and Campbell Bryan McKenzie (forensic technology expert) in support, together with a further affidavit by Mary-Claire Heasley, specifically in support of the latest application. This evidence addresses, among other things, the evidence of Mr Alexander Charles Petrie and Mr Richard Harold Smith filed by the defendants in support of the stay application (which I granted in Judgment (No 6)). It also raises new matters in support of the amended application.

[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 his knowledge and belief that some documents were not in the control of any one of the defendants. He says, having consulted with Mr Smith, that there are also significant practical difficulties in trying to establish which specific defendant entity historically had access to or possession of the relevant accumulated hard copy and electronic record. Nonetheless, he says work is underway to try and resolve or at least narrow the 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 records of James Hardie Australia Pty Limited and James Hardie Research Pty Limited; 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 to a James Hardie entity contain materials which relate to that entity, it does not appear to do so exclusively. As such, he cannot say with absolute certainty that the contents of all boxes coded to a particular entity either exclusively contain material of that entity, or that such material was certainly in its control prior to the archiving. The reverse is true in relation to all boxes in other account names.

[23]	In relation to New Zealand, files were typically stored by general subject matter and without reference to or record of which James Hardie entity strictly had possession 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 second defendant, Studorp Limited (formerly James Hardie Building Products Limited) to the

first defendant, James Hardie New Zealand Limited, pursuant to an agreement dated 31 October 1998. To the best of his knowledge and belief, as a result of this transaction, at least in general terms:

(a)	Penrose documents dated prior to the sale date were in the possession of Studorp Limited;

(b)	all of the Studorp Limited’s records (physical and electronic) became the possession of James Hardie New Zealand Limited from the sale date; and

(c)	no other records created by James Hardie New Zealand Limited after the 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 Hardie companies, 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 the past.

Mr Smith

[25]	Mr Smith is an IT manager. He sets how the companies of the James Hardie Group:

(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, they get access to a shared drive on one of the servers used by their employer. They also get access to the relevant departmental drives on that server. Exceptions to these restrictions must be approved by him or a local IT manager. He says, however, that the James Hardie Group does not have a defined system for requesting an exception to recording and storing requests and approval.

[27]	Individual employees may also store EDR in a personal folder and all personal folders are deleted within 90 days after their employment with James Hardie is terminated. Individual employees may also store on company computers a lease subject to a legal hold EDR, stored in employee-issued computers and deleted within 90 days. They may also store EDR in a folder that can be shared with other employees and only IT administrators can grant access to that company’s shared folders to employees of another James Hardie company. There is no record kept of access given to shared folders or which individual employees were given access. He also says there is no IT administration policy regarding the naming or organisation of shared or personal folders. He also says that emails created or received by any James Hardie Group employee prior to 1 April 2006 are no longer archived and were permanently deleted at about that time from the Irvine California server.

[28]	He also refers to the process of verifying access by the defendants. He says that the fact that the documents were stored on Australian servers means that they were created or utilised by employees of James Hardie Australia Pty Limited and/or James Hardie Research Pty Limited. But he cannot say which of those companies had access to the documents in each folder. He notes that were he to try map the employees that have access to particular folders of their employer, it would show that IT employee’s employer as having access to the folder. He says:

Based on the above exercise, and my knowledge of James Hardie’s Group IT systems, I consider it would be impossible to say with any reasonable certainty which companies in the Group have access to all of the electronic documents that have been discovered in this proceeding.

[29]	He says that while it is possible to identify the server that the document came from and technically possible to list all of the employees with current access to the

folder, it is not possible to say whether those employees had access to the folder when the 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 “Active Directory” which performs a critical function for all Windows domain networks. The Active Directory verifies user credentials and identifies access rights to server folders and other objects. He says the active directory could be queried in order to obtain a list of current permissions of all employees.

[31]	He also refers to native electronic versions of documents which he says can assist in identifying which user had access to which documents on a server because they store original metadata, including authors, creation dates and modification dates. He notes that there are three types of documents commonly produced in the course of e-discovery:

(a)	Native documents (i.e. an extract of the original);

(b)	“Printed to PDF” documents which are converted versions of the same document and maintain some original metadata; and

(c)	“Imaged as PDF” documents which are effectively a recreation of the original but do not retain any metadata.

[32]	He notes that Mr Smith says he is able to check the access permissions for each folder on the server, but he does not say whether other metadata could also be accessed using the server. He says that he would expect that if native versions of the document were stored on the server, then it would be possible to extract the metadata about each document, including the original author, creation date and modification of the document.

[33]	Referring to email access to documents, he says that where an organisation accesses requests by email, he would expect the email sent to/from IT would be stored in a mailbox for perhaps a year or longer. He also notes that Information Technology

General Controls (ITGCs) are regularly audited by a firm that provides IT audits which result in written reports and recommendations. He notes that none of the affidavits he reviewed show whether ITGCs were audited externally.

[34]	He also refers to sources of EDR. He says that Mr Petrie does not state whether the 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 schematic of that. He notes that as part of the identification stage, human resource records can be used to identify which employees to collect documents from. These employees may 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 personal directories which would have been created, at least annually and retained for the required duration, typically several years or more, in case of disaster.

[37]	He also examines the process to verify access by the defendants. He notes  Mr Smith’s evidence that it would be impossible to say with any reasonable certainty which definition company had access to all of the electronic documents that have been discovered. He says that, in his opinion, the most comprehensive way of determining whether an individual person had access to a particular document, is to resolve the question of who had access to the folders when these documents were stored. In order to match employees to the employer using HR records (including onboarding lists, or similar, 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 this information against the HR records.

[38]	He then says it is possible to use the following information to ascertain which individual 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 email client; 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 whether the statement refers only to employees who had left the James Hardie company by that time or whether it extends to current employees. He also says Mr Smith does not state whether there was a backup kept.

Mr Littlewood

[40]	Mr Littlewood explains, in short, that tax law in this country ordinarily requires that documents be retained for at least seven years.

Mr Ross

[41]	Mr Ross details his extensive experience as a director of multiple companies and his direct experience with James Hardie’s New Zealand business, as its auditor through the 1960s and 1970s. He made a number of observations:

(a)	He would expect there to be satisfactory arrangements whereby the records of a particular company could be identified and accessed on a company-by-company basis and that individual directors could reasonably be expected to know whether documents relating to the

company for which they were a director were either accessible and identifiable or not.

(b)	He expressed surprise to read that all emails prior to 2006 had been deleted, around April 2011. He says that the apparent approach taken by James Hardie to document retention (including the collective storage of documents and the difficulty of ascertaining details of materials stored in various locations) is contrary to, what he believes, the duties of a New Zealand director would be.

(c)	Contrary to the apparent experience of Mr Russell Chenu (who had responsibility for the financial management and financial compliance of the James Hardie Group), he would have expected to be advised as a director of a holding company of any potential liability issue or consequence that might arise in any of its subsidiaries, particularly given that the directors of the holding company are those reporting to shareholders.

(d)	He said it would have been a relatively normal procedure within a global group, such as James Hardie, that indemnities would be provided to directors of subsidiary companies and to the companies themselves, particularly where the asset base of those subsidiaries was not particularly high. He said it would be normal for the directors of each company to either have cover through the captive insurer or through external insurers as directors’ and officers’ liability cover, which is relatively normal, and where most product companies would have satisfactory levels of cover for the boards of each subsidiary company.

Ms Heasley

[42]	Ms Mary-Claire Heasley refers to and attaches correspondence between the solicitors regarding privilege claims, confidentiality claims and “irrelevant documents”. She also attaches, further insurance documents; masked documents; and a 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 of association of the seventh defendant; a list of search results from the United States and Securities’ website generated by searching for “James Hardie Industries”; and an extract from a relevant report for the period to 31 March 2003.

Ms Nola

[43]	Ms Nola attaches additional correspondence between the solicitors. She also notes that in her experience, it is unusual for a case involving 28,000 documents, of which a majority are hard copy, to include the names of individual authors and recipients, in addition to company authors and recipients. She also says that the listing sought by the White plaintiffs will not assist them with their goal. That is, they will still be required to search across the data set to isolate documents pertaining to a specific 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, and an additional five weeks, at a cost of approximately $50,000.

[44]	She says that she understands the plaintiffs requesting that James Hardie relist and standardise its document descriptions. She anticipates this task would be completed 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 around 11,000 of its 28,000 documents with updated authors/recipient entities (not individuals) and document types in accordance with the list of “standard document types for objective coding”.

[46]	She refers to the request by the Waitakere plaintiffs to have the defendants provide confirmation of the document types used during its initial review of documents and provide a list of documents that were used when loading documents onto the defendants’ review platform. She says that no single list exists as the document types have been coded over many years based on common types or the way a document is titled or described on its face (as is common/accepted practice in any typical discovery exercise). However, to assist the Waitakere plaintiffs, she attaches

Schedule C in an attempt to prepare a list of the sort requested. She does not believe it 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 additional management-related search terms. She ran a number of additional search terms across off-shore custodians, corporate affairs areas of the server and all hard copy documents. She says that the defendants will review approximately 2,700 responsive documents for relevance and discover any open documents, and that any further open documents will be discovered by late April 2020.

[48]	She also notes that the White plaintiffs have proposed a different list to the Waitakere plaintiffs. She has run some preliminary searches using the proposed terms and found the searches would yield over 130,000 new documents to review. She says it is highly unusual in her experience to take such a vast list of additional and broad search 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 a subsequent hearing. As to items (a)-(c), the plaintiffs complain that key document types have not been discovered (electronic non-mail, emails of employees of the seventh defendant, and Cloud-based documents, except the Saas platform), all emails

pre-2006 were destroyed, only a limited class of custodians were identified, and the present search terms are manifestly inadequate.

[51]	To illustrate the claimed inadequacy, Mr Gray referred to a memorandum between what appears to be two employees of a James Hardie company, Messrs John Moller and Peter McDonald. That memorandum states:

John,

This confirms our recent discussions at and since the GMT meeting regarding the ongoing management of the NZ Leaky Buildings issue.

This is an important issue in NZ and elsewhere. Consequently, the GMT will have the ultimate sign off authority on the recommended strategy for addressing 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 Gray submits, no minutes or other documents specifically relating to decisions or directives made 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 related terms, GMT and the RMT (Regional Management Team); and

(c)	the need to be sceptical about how the defendants are approaching discovery, particularly in light of the decision to delete all pre-April 2006 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 they understand held management responsibility in the companies that should have been included.

[54]	Mr Hodder responds that the “GMT” example in fact shows the effectiveness of the present search items and methodology. He says that there is no evidence to suggest that the use of additional terms, including “management related terms” and

additional custodians will produce anything more than that already covered by the search terms previously identified by the plaintiffs as required to complete discovery.

[55]	Mr Hodder also submits that the latest amended application (the fourth application) represents a substantial addition to the previous application, requiring the defendants to search an additional 130 terms. This, he says, is a hugely disproportionate burden, given the very large discovery undertaken to date. He also suggested that I use the independent barrister approach adopted by Fisher J in Clear Communications.1 In that case a Fisher J tasked independent counsel with the responsibility of, among other things, reviewing masked documents to ascertain whether they were privileged. This option was not, however, accepted by the White plaintiffs.

Assessment

[56]	The defendants did not have an adequate opportunity to respond to the latest amended 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 this regard, I propose to convene a telephone conference for timetabling purposes. This will 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 White
plaintiffs’ application:

(a)	Based on the evidence of Mr McKenzie, the defendants have not adequately explained whether specified document types (see [34]) have been discovered and if not, why not – this needs to be addressed.

(b)	A proper explanation is also needed as to how the custodians were identified, and why certain others have not been identified as custodians. Unless an adequate explanation is forthcoming, my current view is that all previous and current directors should be identified as custodians.

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 be justified having regard to the role apparently played by the GMT and RMTs 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 are insufficient, and in particular:

(i)	Why and how existing search terms have failed to identify relevant documents;

(ii)	why and how the new search terms will identify additional relevant documents not already discovered; and

(iii)	why the new search terms are needed in respect of all categories of discovery.

[58]	In this regard, it is evident to me that the issues as to the scope of discovery would benefit from caucusing between experts2 and a joint expert report to the Court as to the need, efficacy, benefits and cost of expanded discovery. As I have not heard from the parties on this option I make no final order. But unless good reason can be identified for not following this course, such an order can be anticipated.

[59]	I also wish to address a theme of the White plaintiffs’ submissions, supported it appears by the evidence of Messrs Ross and Littlewood, namely, that the defendants’ approach to discovery should be treated with scepticism. I have already expressed concerns about the collective approach to discovery in my Judgment (No 5). I also accept that the method used to identify custodians and authorship is problematic. The wholesale deletion of emails pre-April 2006 is also concerning. But it is important to acknowledge the extent of the discovery to date (as noted by Ms Nola) and the technical complexities involved in recovering information stored (either in hard or soft copy) 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 discovery exercise.

a purposely broad frame for discovery (both as to categories of discovered documents and search terms) was endorsed and then adopted at the outset. Any further broadening of the discovery net (in the order of 130,000 additional documents as foreshadowed by Ms Nola) must be clearly justified given that already broad starting point. Mere scepticism about the defendants’ discovery and apparent relevance will not be enough.

[60]	The benefit of an inquiry by independent counsel is that a finer grain assessment 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 likely to 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 the independent counsel process for the purpose of narrowing or clarifying the scope of further discovery. It is also an obvious process to be used in relation to issues of privilege 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 the defendants’ 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 says the 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 Schedule 9, which relevantly states:3

Protocol 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 exclusively containing 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 identified

3	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 isolating important documents.

[65]	Mr Hodder responds that the defendants have adequately complied with the protocol in terms of identifying the author and/or recipient of documents by identifying, where applicable, James Hardie is responsible for the document. He notes that the protocol expressly envisages referring to authors by reference to an individual or an organisation. He says the defendants are prepared to further refine the discovery by 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 document types, but that the plaintiffs do not want that. He says that the more refined descriptors used were designed to assist the defendants in the discovery process. However, he does not accept it is necessary to adopt a hybrid approach, where in effect the defendants are producing a schedule of document titles for the plaintiffs.

Assessment

[67]	I am satisfied that “author” may include an individual or an organisation. The listing protocol literally contemplates as much. I also acknowledge Ms Nola’s evidence as to standard practice and the scale of the task required to identify authors and recipients. But I am also satisfied that the obligation to discover individual authors is appropriate where those individuals can be identified. In this regard, the discovery checklist refers to “individuals” in several places, which serves to illustrate the significance of identifying individuals in the discovery process. These references are as 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 the discovery order that should be made with respect to categories, by for

example, specifying key individuals (for example those who are company 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 (for example date ranges or key individuals) (r 3(2)(b)(ii)).

[68]	Moreover, I prefer an approach to discovery that best serves its underlying purpose, namely, ensuring in an efficient and proportionate method so that the parties and 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 a company. The latter approach simply obscures the significance of the document in terms of a key issue at trial, namely that of attribution. This is particularly important if, as Mr Smith says, attribution to particular companies of possession of documents is 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 that cost in isolating the key individuals responsible for the document. The defendants, who are responsible for the discovery, are plainly better placed to undertake that exercise.

[69]	I make an order that the defendants must identify the authors and recipients of the 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 the parties are to file their respective lists. As signalled, I will resolve this aspect, if necessary, on the papers. Alternatively, I reserve leave to the parties to employ the assistance of independent counsel in conjunction with the process to be followed in the White proceedings.

Identification of employees

[71]	This leads to the second main issue, namely, whether the defendants need to identify the relevant positions of the custodians within the defendant companies.

Ms Meechan submits that this naturally follows from the decision of the defendants to name the custodians. Mr Hodder responds that there is no obligation to do so, and in any event it is likely to be difficult to identify their positions now, given the time span of the discovery process.

Assessment

[72]	I agree with Ms Meechan that identifying the position of each of the custodians within each of the defendant companies logically follows the decision by the defendants to identify the key individuals as custodians. While not a point made in argument, it corresponds with the object of r 3(2)(a)(i)(D) (mentioned previously) to provide tailored discovery by reference to key individuals (e.g. company directors). It cannot be that they were selected at whim or by speculation as to whether they were key individuals. Certainly, no evidence that they cannot be identified has been produced.

[73]	I make an order requiring the position of the custodians to be identified within each of the defendant companies accordingly, with leave reserved to the defendants to provide evidence in relation to those individuals to which they cannot attribute a company position.

Incomplete provision of documents

[74]	There appears to be some agreement that not all documents have been produced and the defendants are working hard to produce them. Ms Meechan nevertheless wants a line drawn in the sand, with unless orders made if discovery is not complete by 31 March 2020. Mr Hodder resists on the basis that discovery has been a difficult exercise, involving, for example, reluctant third parties. He says an order extending time to a specified date is appropriate, but an unless order would be excessive.

[75]	I agree that a line must be drawn, but it would not be fair to impose an unless order. 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 (in

both proceedings). It is also necessary to observe that the defendants have additional tasks, agreement has to be reached on the document types, and independent counsel may 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 the progress 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 and time for a telephone conference for the purpose of timetabling the amended application to a hearing and to discuss any remaining matters to be resolved. In this regard consideration must be given to provision for expert caucusing and a joint report to the Court on the efficacy of expanded discovery, including the need for and likely benefits of further search items and the likely cost of the expanded discovery. Such report would need to address the issues identified by me at [57](d). Unless good reason for not pursuing this course is provided, an order directing such an approach can be anticipated.

[77]	Furthermore, I invite the parties to reconsider engagement of independent counsel to review the need for the additional search items and more broadly to assist in the resolution of remaining discovery issues.

[78]	A realistic approach to timetabling is also required given the COVID-19 lockdown. Consideration should be given to the effect on the timetable for evidence exchange and the fixture. And whatever the approach, finality must be brought to the discovery process. Memoranda (preferably joint) are to be filed 2 working days in advance of the conference.

[79]	In the Waitakere proceedings:

(a)	The defendants must, where possible, identify the individual author and/or recipient of a document;

(b)	the plaintiffs and defendants are to endeavour to agree to an amended schedule of document types within 10 working days;

(c)	if agreement is not reached the parties are to file their own proposed document 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 those individuals for which employee positions could not be identified;

(e)	I decline to make an unless order, however, I reserve leave to the Waitakere plaintiffs to report to the Court on any progress in relation to the above matters and the finalisation of the discovery process; and to seek such orders they consider necessary to secure finalisation of the discovery process;

(f)	costs are reserved pending the outcome of the processes mentioned above; and

(g)	the registrar will liaise with counsel to identify a day and time for a telephone conference, in conjunction with the conference in respect of the White proceedings, for further timetabling. Memoranda (preferably joint) are to be filed two days in advance of the conference.