Federal Court of Australia
Garde-Wilson v Google LLC  FCA 243
DATE OF ORDER:
THE COURT ORDERS THAT:
1. The interlocutory application dated 27 October 2020 be dismissed.
2. The originating application dated 17 February 2020 be dismissed.
3. The solicitor for the Prospective Applicant provide these reasons to the Prospective Applicant forthwith.
1 The prospective applicant in this proceeding, Ms Zarah Garde-Wilson, is a solicitor practising in criminal law, who at least in part relies on the internet to attract clients. She is a director of Tabforce Pty Ltd trading as Garde-Wilson Lawyers and has traded under that name for the last 15 years. She deposed that she represents clients across Australia and overseas.
2 By an originating application dated 17 February 2020, Ms Garde-Wilson sought orders under r 7.22 of Federal Court Rules 2011 (Cth) (the Rules) to require Google LLC (Google) to provide pre-action discovery of all documents or things in its possession or control relating to the description of an unknown person (the unknown reviewer) who posted a review on Google in relation to Ms Garde-Wilson’s legal practice, using the pseudonym “Mohamed Ahmed”. Under the dictionary to the Rules, the “description” of a natural person is that person’s name, address and occupation.
3 Ms Garde-Wilson deposed that she has never acted for a person named Mohamed Ahmed and she believes that the review, which she describes as “fraudulent” and “defamatory”, was posted by another legal practitioner. She sought orders to require Google to provide discovery of documents and things which would assist her to ascertain the description of the unknown reviewer, so that she could bring an action for defamation and for misleading or deceptive conduct against him or her. She also sought leave to serve the application and supporting affidavits upon Google in the United States of America, pursuant to Part 10 of the Rules.
4 Ms Garde-Wilson is represented in the application by Mr Mark Stanarevic of Matrix Legal. In his affidavit made 17 February 2020, Mr Stanarevic deposed that Ms Garde-Wilson had instructed him that she wished to bring a claim for damages against the unknown reviewer as the author and publisher of the review, and sought orders for Google to discover documents “identifying details of the party or parties involved in creating the defamatory anonymous review defaming her and associated identifying data including [the] IP address and name and address of the user.”
5 Until the application made today that was the basis for the application for pre-action discovery. Neither the originating application nor the interlocutory application filed by the applicant on 27 October 2020 seeks pre-action discovery under r 7.23 of the Rules. Nor, until today’s application, did Mr Stanarevic propose or foreshadow any claim for damages by Ms Garde-Wilson against Google itself.
6 Under r 7.23 of the Rules Mr Stanarevic could have brought an application for pre-action discovery on Ms Garde-Wilson’s behalf, on the basis that:
(a) Ms Garde-Wilson reasonably believes that she may have the right to obtain relief in the Court from a prospective respondent whose description has been ascertained;
(b) after making reasonable inquiries, she does not have sufficient information to decide whether to start a proceeding in the Court to obtain that relief; and
(c) she reasonably believes that:
(i) the prospective respondent has or is likely to have or has had or is likely to have had in the prospective respondent’s control documents directly relevant to the question whether she has a right to obtain the relief; and
(ii) inspection of the documents would assist her in making the decision (as to whether to start the proceeding under consideration).
If the Court is satisfied about those matters it may order the prospective respondent to give discovery to the prospective applicant of documents of the kind mentioned.
7 Pre-action discovery under r 7.23 is not directed to ascertaining the description of a prospective respondent. It enables a person to take a decision whether to sue the prospective respondent in the Court: SmithKline Beecham plc v Alphapharm Pty Ltd  FCA 271 at  (Finkelstein J). The Court is to be guided by the principle that pre-action discovery under the rule is directed to providing only sufficient evidence to enable a prospective applicant to decide whether to commence a proceeding: Optiver Australia Pty Ltd v Tibra Trading Pty Ltd  FCA 1348 at  (Tamberlin J).
8 On 23 April 2020, I made orders granting leave to Ms Garde-Wilson to serve the originating application under r 7.22 and supporting affidavits by international registered post upon Google in the USA in accordance with Article 10(a) of the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at The Hague on 15 November 1965 and pursuant to r 10.43 of the Rules.
9 On 4 June 2020, having been satisfied in relation to the requirements under rr 7.22 and 10.43, I made orders for Google to provide to Mr Stanarevic the subscriber registration information of the Google account associated with the unknown review as well as the IP addresses of the logins to the unknown reviewer’s Google account, to the extent that such information or data is in the possession of and readily available to Google as of the date of that order. Google did not oppose an order in that form.
10 The orders did not bear fruit in terms of assisting Ms Garde-Wilson to ascertain the description of the unknown reviewer. Mr Stanarevic annexed an email from Google dated 16 July 2020 to his affidavit made 19 October 2020. The email stated:
Please refer to the attached files (to the extent available from our system) for information responsive to Court Order dated June 4, 2020 directed to Google LLC.
This completes our response under the Order.
11 The document attached to the email provided:
(a) the email address of the unknown reviewer, being a Gmail account, which does not assist to identify the unknown reviewer behind the account;
(b) the Google Account ID number, which, without more, does not assist to identify the unknown reviewer who created and used that account;
(c) that the Gmail account was created on 30 January 2020 and ceased to operate on 14 March 2020; and
(d) that Google did not hold any “user IP logs data” in relation to the account.
12 In the case management hearing on 21 October 2020, Mr Stanarevic sought orders allowing him to cross-examine a representative of Google as to its “true date [sic] retention policies and if the user information for preliminary discovery can be provided for by backup or other systems [that] Google LLC has access or control to.” I refused that application essentially because Mr Stanarevic had not filed or served an interlocutory application seeking any such orders, and Google was not on notice of the application.
13 Subsequently Mr Stanarevic filed an interlocutory application dated 27 October 2020 seeking orders pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) and r 7.22 of the Rules for further preliminary discovery from Google, being orders to require Google to:
(a) provide information to Mr Stanarevic as to whether in responding to the orders of the Court made on 4 June 2020 Google searched any backup or ancillary systems or archives in its control;
(b) in the event that Google had not searched any backup or ancillary system or archives, to require Google to undertake “a reasonable search of its records, including any backup or ancillary system or archives” and to provide to Mr Stanarevic any document or thing which discloses:
(i) the IP address used or associated with the identified Google Account ID;
(ii) any phone number[s] used to verify the identified Google Account ID upon that account being created; and
(iii) any email address to be used for the purpose of recovery of the identified Google Account ID and/or the identified Gmail address associated with the Google Account ID.
14 The interlocutory application was made returnable on 4 November 2020. That morning Mr Stanarevic emailed my chambers attaching an email received from Google that day which said, as a preliminary matter, that Google objected to service of the interlocutory application and supporting affidavit material by email. More importantly, the email said:
As you know, Google previously voluntarily produced information to you per the orders of 4 June 2020. You did not seek clarification or any comment from us before making the interlocutory application.
Google has already undertaken reasonable searches in respect of the subscriber information sought by you. It is not reasonable for Google to take the further step sought in your interlocutory application, including because the relevant Google Account was deleted on about March 13, 2020. Due to the duration of time since it was deleted, any relevant data that is associated with that Google Account has been permanently deleted. As such, an additional search would reveal no additional information.
Google does not maintain separate backup systems of the kind contemplated by the application. As such, Google does not consider further orders to be necessary or reasonable.
15 Mr Stanarevic sought a two week adjournment of the interlocutory application which I granted. The application was relisted for hearing on 2 December 2020.
16 On 1 December 2020, Mr Stanarevic sought a further adjournment of three weeks on the basis that he was consulting senior counsel “to finalise the proposed course of action in this matter due to some of the complexities involved.” Again I acceded to his request for adjournment and relisted the interlocutory application for hearing on 22 December 2020. Subsequently, I became unavailable on that date and it was relisted for 16 March 2021.
17 On 15 March 2021 Mr Stanarevic filed written submissions in support of the interlocutory application (the 15 March 2021 submissions). I gave consideration to those submissions in preparation for the hearing the following day.
18 The hearing on 16 March 2021 was adjourned due to several technical problems, being an outage of Microsoft Teams and because Mr Stanarevic could not access his electronic files on Microsoft 365. The application was relisted for hearing on 18 March 2021.
19 A short time before the hearing Mr Stanarevic filed supplementary submissions dated 18 March 2021 (the supplementary submissions) and his further affidavit made 18 March 2021.
20 The interlocutory application was heard on 18 March 2021. Mr Stanarevic relied upon his affidavits made 27 October 2020, 2 November 2020 and 18 March 2021, and upon the 15 March 2021 submissions and supplementary submissions. He also made oral submissions. There was no appearance by Google.
21 Having regard to the material before the Court it became apparent that the orders now sought fall outside the scope of both the originating application and the interlocutory application. It will be recalled that the originating application sought orders for pre-action discovery from Google under rule 7.22 to allow Ms Garde-Wilson to ascertain the description of the unknown reviewer so that she could commence an action for defamation and misleading or deceptive conduct against that person. In response to orders made on 4 June 2020 Google provided some material but it was insufficient to allow Ms Garde-Wilson to ascertain the description of the unknown reviewer. The interlocutory application seeks further pre-action discovery from Google under the same rule for the same purpose.
22 The 15 March 2021 submissions, however, assert a quite different basis for the application. They state that:
(a) the basis of the application is that Google “has claimed to have deleted records relevant to the cause of action for defamation and misleading and deceptive conduct for the Prospective Applicant in this matter”;
(b) because Ms Garde-Wilson had not had access to the IP user information deleted by Google she had “suffered a loss of opportunity to sue for defamation and misleading and deceptive conduct against the anonymous party”;
(c) Ms Garde-Wilson had been deprived “of her ability to sue this party [the unknown reviewer] by the breach of Google LLCs duty to preserve records”;
(d) in the USA, which is the place where Google’s deletion of the evidence most likely occurred, the tort of “negligent spoilation” is available. The tort is said to allow a plaintiff to recover damages from a party that was under a duty to preserve evidence and negligently failed to do so: see Schaefer v Universal Scaffolding & Equipment LLC 839 F. 3d 599; and
(e) an action for negligent spoilation against Google may be brought by Ms Garde-Wilson in a court in Australia, which would apply the lex loci delicti of the place where the wrong occurred: see Regie Nationale Des Usines Renault SA v Zhang  HCA 10; (2002) 210 CLR 491.
23 In Mr Stanarevic’s affidavit made 18 March 2021 and the supplementary submissions Mr Stanarevic states that Google has various document and data retention obligations under the Sarbanes Oxley Act 2002 (USA), National Institute of Standards and Technology standard NIST 800-171, the best practice information security standard in ISP-27001 and under the Stored Communications Act (USA). He argues that having regard to these statutory obligations and industry standards it is implausible to think that Google simply deletes account data under a year. However, that material does not state the purpose of the interlocutory application for pre-action discovery; in particular, it does not contradict the 15 March 2021 submissions in that regard.
24 The 15 March 2021 submissions indicate that Ms Garde-Wilson seeks further pre-action discovery to assist her to decide whether to start a proceeding against Google for loss of the opportunity to bring a claim for defamation and misleading or deceptive conduct against the unknown reviewer, and/or for negligent spoilation. In reality, her application is under r 7.23 of the rules. That is a quite different application to that advanced under r 7.22 in the originating application and the interlocutory application.
25 If there was an application properly made under r 7.23 a number of questions might arise, including:
(a) how it is said that Ms Garde-Wilson has a reasonable belief that documents that may be obtained by Google searching any backup or ancillary systems for further information going to the identity of the unknown reviewer will be directly relevant to the question whether she has a right to obtain relief against Google. Google has stated in open correspondence that due to the duration of time since the unknown reviewer’s Google Account was deleted any relevant data associated with the account has been permanently deleted, and that Google does not maintain separate backup systems of the kind contemplated by the applicant;
(b) how it is said that Ms Garde-Wilson has a reasonable belief that Google has an enforceable duty to preserve its records;
(c) what the relevance of the Sarbanes Oxley Act is to the interlocutory application, given that that legislation appears to be concerned with financial records, not the IP data, telephone number or recovery email address associated with an otherwise unimportant Gmail account of the unknown reviewer; and
(d) how it is said that Ms Garde-Wilson reasonably believes that she has a right to obtain relief in the Court from Google for loss of opportunity to sue or for negligent spoilation, and that this Court would have jurisdiction to hear any such case.
26 But such questions can be put to one side when the application now made seeks to ventilate issues that are outside the scope of the originating application and the interlocutory application. There is no originating application nor any interlocutory application on foot making an application under r 7.23 seeking discovery by Google on the basis that Ms Garde-Wilson reasonably believes that she may have a right to bring a proceeding against Google but does not have sufficient information to decide whether to start that proceeding. Google has not been served with any such application. The best Mr Stanarevic offered in this regard was to say that he sent the 15 March 2021 submissions to Google but that is not enough. Further, it is appropriate to infer that he did not serve his 18 March 2021 affidavit and supplementary submissions on Google, or at least not in sufficient time. They were only filed 1 ½ hours before the hearing.
27 Mr Stanarevic conceded in the course of the hearing that any application for pre-action discovery under r 7.23 required a separate application. Although in oral submissions Mr Stanarevic attempted to disavow his 15 March 2021 submissions and press the orders sought in the interlocutory application, in my view the application for further pre-action discovery is now made for a different purpose and under a different rule. In the circumstances the interlocutory application must be refused.
28 The question then arises as to what to do with the originating application. It has been on foot since 17 February 2020. Google has stated in open correspondence that due to the duration of time since the unknown reviewer’s Google Account was deleted any relevant data associated with the account has been permanently deleted, and that Google does not maintain separate backup systems of the kind contemplated by the applicant. Mr Stanarevic’s response to that was to file submissions which indicated an application for a different purpose under a different rule. In the circumstances I consider it to be appropriate to also dismiss the originating application.
29 I do not, however, finally determine Ms Garde-Wilson’s right or entitlement to file an originating application seeking further pre-action discovery under r 7.22 or pre-action discovery under r 7.23 if, upon reflection, she wishes to do so. However, if such a proceeding is to be brought it must be brought on proper material, on notice to Google, and it must be conducted efficiently and expeditiously. That is not how this proceeding has been conducted. One thing that must be avoided is the provision of a flurry of materials making inchoate arguments shortly before a hearing. A good example of that is the materials filed a short time before the hearing on 18 March 2021 which made assertions about requirements under US law and other standards, which were somehow said to be relevant to Google’s obligations to retain data such as the IP data, telephone number and email address associated with a Gmail account. It was impossible in the time available to give proper consideration to that material.
30 Through this application the Court’s time and resources, as well as the time and resources of the parties, has been wasted. Unfortunately this is not for the first time. The application made at the case management hearing on 21 October 2020 was also refused because Mr Stanarevic had not filed or served an interlocutory application seeking the orders he proposed.
31 I have heard no submissions as to where the fault for this waste of time and resources lies, and I will not decide that question without hearing from the affected parties. If, however, it is Mr Stanarevic’s fault it seems appropriate that he, rather than his client, carry the burden of the costs incurred. Google did not appear and I would not order that it have its costs.
32 Accordingly, I direct that Mr Stanarevic provide Ms Garde-Wilson with a copy of these reasons forthwith. If Ms Garde-Wilson and Mr Stanarevic cannot, between themselves, resolve who should carry the burden of the wasted costs by reason of this application and the application on 21 October 2020, I will determine that issue after receiving short submissions (no more than three pages) in that regard. Any such submissions must be filed within 14 days.