FEDERAL COURT OF AUSTRALIA

Sony Music Entertainment (Australia) Limited v University of Tasmania [2003] FCA 805

PRACTICE AND PROCEDURE – Final Orders – interpretation of Orders made – whether Order requires production of files that have been overwritten

WORDS AND PHRASES – “overwritten”, “backup”, “deleted”

SONY MUSIC ENTERTAINMENT (AUSTRALIA) LIMITED, UNIVERSAL MUSIC AUSTRALIA PTY LIMITED AND EMI MUSIC AUSTRALIA PTY LIMITED v UNIVERSITY OF TASMANIA, THE UNIVERSITY OF SYDNEY, THE UNIVERSITY OF MELBOURNE

N128 OF 2003

TAMBERLIN J

SYDNEY

29 JULY 2002

THE COURT ORDERS THAT:

1.         The respondents pay the applicants’ costs on this application.

2.         Time be extended for the first respondent’s compliance with Order 1(e) made on 18 July 2003 to 1 August 2003.

3.         Liberty to apply is reserved.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     In this matter a dispute has arisen in relation to the construction of Order 5, paragraphs (a) and (b) of the Orders made by me on 18 July 2003 in respect of preliminary discovery. 

2                     It is submitted on behalf of the second respondent, the University of Sydney, that the backup copies of the files referred to in those subparagraphs have been overwritten and that, therefore, they do not satisfy the description within the Order, or the intent of the Order, as considered against the evidentiary background.

3                     Moreover, it is said that one should bear in mind, in interpreting the effect of these two subparagraphs, whether it is of any use to require the production of these backup copies referred to in those subparagraphs, because the weight of the evidence is to the effect that those backup copies having been overwritten, and it is no longer possible to recover any useful material from the files.

4                     Mr Bannon SC, who appears for the applicants, has referred me to Order 6 which refers to Mr Thackray being given access to the items listed in Order 5 so as to examine search and test items, in order to recover deleted information, to extract information and, if necessary, to convert information to a readable form.  The terms of the Order include words of wide import. 

5                     It is true that there is reference to deleted information and no reference in the Order to information that has been overwritten.  However, I have been directed to further evidence which indicates, and is consistent with some of the evidence referred to by Mr Speakman, that if there is overwriting it may be possible to recover forensically useful information because such overwriting, if carried out on one occasion, for example, and the evidence does not disclose how many occasions the overwriting has taken place in this case, may nevertheless fail to preclude the possibility of obtaining useful information.

6                     In my view the proper construction and my intent in making the Order, as I recall it and now construe it, was that access should be granted to the material and that deleted information should be tested to see whether anything useful could be recovered and, having regard to the background evidence, I am satisfied that this could include material which has been overwritten.  In those circumstances I accept the submissions made on behalf of the applicants in relation to this matter and the reasons that I have set out and the conclusions which I have reached, should be sufficient to enable the parties to proceed with the discovery process.

7                     I think this is a discrete question on the interpretation and I will grant the applicants their costs in relation to this application for clarification of the Orders.

8                     I will make the Order extending the time for the first respondent's compliance to 1 August 2003.  I reserve liberty to apply.

Associate:

Dated:              5 August 2003