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.
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[1] High Court, Wellington, CIV-2006-485-1600, Dobson J, 12 August 2009
Facts
The parties to this 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 were considered in a judgment of July 2008 (the subject of a prior article), which included consideration of the discovery of email chains. The emails had apparently been provided as hard copy printouts and only the last in each chain had been provided. In the circumstances, the Court held that each individual record of an earlier email in the chain was a separate document and so had to be separately listed and numbered for the purposes of discovery. In the more recent hearing, the Court had to consider, among other things, whether inspection of discovered emails extended to their attachments.
Todd applied for the 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 not relevant to the issues in the proceeding. It relied on ANZ National Bank Ltd v Commissioner of Inland Revenue (2008) 18 PRNZ 916 as authority for the proposition that reference to a document in a discovered document does not render the undiscovered document presumptively relevant.
Decision
The Court accepted Shell's submission that the attachments were not automatically relevant and so went on to consider the relevance of each attachment separately. Most, but not all, of the attachments were held to be relevant in their own right and so had to be discovered. In reaching its decision, the Court clearly viewed the attachments as separate documents rather than being part of a single electronic communication.
Comment
This decision, in combination with the previous interlocutory decision of July 2008, demonstrates the conceptual difficulties which can arise from the discovery of emails. Most of the difficulties stem from approaching discovery of emails by treating a printout of an email as the document itself. An email is an electronic communication which includes all of its components, including attachments, if any. 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 the printout of the email. Strictly, an email ought to be discovered in its original form as an electronic file rather than as a hard copy printout. If it is not, discovery of email printouts gives rise to the sorts of issues which have been the subject of this and the previous 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 and not artificially carved into smaller pieces as the result of the limits of the print function of the 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 in ANZ National Bank Ltd v CIR, which concerned documents, such as letters, referred to in the content of an entirely separate document, such as a file note. The documents in such a case clearly have a separate existence from one another and so do not form constituent parts of a single communication. This is different from an email and its attachments which arguably constitute a single electronic communication (although the argument was not advanced in this way by the applicant). Reference to an attachment in an email is not reference to a separate document but to part of the same single communication. If an email is considered relevant, then all of its constituent parts would need to 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 to this litigation had began by providing electronic discovery of relevant emails, the conceptual difficulties that have arisen from treating electronic documents as equivalent to their hard copy printouts would have been avoided. When the choice is made 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 regard as the "document". By endorsing the treatment of emails as no more than their hardcopy printouts, the Court's decision has encouraged parties to choose to provide discovery of emails in printout form only because the Court's analysis (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 printouts.
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