Rock Solid Holdings Limited v Simmons

[2020] NZHC 3487

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-1043

[2020] NZHC 3487

BETWEEN

ROCK SOLID HOLDINGS LIMITED

First applicant

AND

PETER JOHN BISHOP

Second applicant

AND

FIELDCO LIMITED

Third applicant

AND

BRADEN MATTHEW SIMMONS

Respondent

Hearing:	9 December 2020
Appearances:	Z G Kennedy and H M Jaques for the applicants A J B Holmes for the respondent
Judgment:	22 December 2020
Reissued:	23 December 2020

JUDGMENT OF PALMER J

(Re-issued to correct date in paragraph [8])

This judgment was delivered by me on Tuesday, 22 December at 10.00am.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Counsel/Solicitors:

A J B Holmes, Barrister, Auckland Z G Kennedy, Barrister, Auckland Cook Morris Quinn, Auckland MinterEllisRuddWatts, Auckland

ROCK SOLID HOLDINGS LTD v SIMMONS [2020] NZHC 3487 [22 December 2020]

Context

[1]    Mr Braden Simmons, the defendant, used to be employed by the first plaintiff, known as Euroclass. The plaintiffs allege that Mr Simmons attempted to access and did access their computer systems without authorisation. They say the computer systems hold commercially sensitive, intensely private, and confidential financial and strategic information relating to the first plaintiff, to individual members of the Plymouth Brethren Christian Church, and associated entities. Two people have independently told the plaintiffs that Mr Simmons said he had accessed the systems. There is CCTV evidence of his car parking nearby Euroclass’ premises at a time unauthorised access appeared to be attempted. The plaintiffs sue Mr Simmons for three causes of action for breach of confidence and one of intrusion upon seclusion.

[2]    The plaintiffs were granted orders to search Mr Simmons’ premises, which produced one document they say is evidence of access to Euroclass’ computer systems. Three more documents are also at issue. The first and second plaintiffs apply for orders requiring Mr Simmons to answer 18 interrogatories. Mr Simmons has sworn two affidavits. In the first, he asserted he had not “hacked” Euroclass’ computer systems. In response to the plaintiffs’ dissatisfaction with that, he swore a second affidavit saying, among other things:1

To avoid confusion, I wish to restate clearly that I have not done what is alleged by any interpretation, using any terminology. I have not accessed, seen, read, downloaded, or shared the Commercially Sensitive Documents, Personal Information, and Financial and Strategic Information. I have not accessed or deleted any of the Applicants’ logs files or records. I have not claimed to any person that I have accessed, seen, read, downloaded, or shared the Commercially Sensitive Documents, Personal Information, Financial and Strategic Information.

[3]    The plaintiffs have since amended their statement of claim. They consider  Mr Simmons has answered some interrogatories (1(a) ,1(c), 11, 16, 17 and 18). They pursue answers to the others.

1 Second Affidavit of Braden Mathew Simmons, 30 October 2020, at [4].

Interrogatories

[4]    Under r 8.38 of the High Court Rules 2016, a judge may order any party to file and serve on any other party a statement in answer to interrogatories relating to matters in question in the proceeding, if satisfied the order is necessary. Relevantly here, under r 8.40 a party may object to answering on the grounds that it does not relate to a matter in question or is vexatious or oppressive. The purpose of interrogatories is not to enable a party to “fish” for information on a speculative basis.2

Submissions

[5]    Mr Kennedy, for the plaintiffs, submits the interrogatories are relevant to issues in the amended statement of claim: whether Mr Simmons accessed or attempted to access the computer systems without authorisation; whether he reviewed or took copies of information; and whether he disclosed the information to any third parties. He submits Mr Simmons’ statements so far are carefully worded and he does not squarely deny that he accessed or attempted to access the computer systems or review any documents contained on them. He submits the interrogatories are necessary because they may directly or indirectly prove the key facts the plaintiffs rely upon and which are relevant to his credibility, which is at issue. He submits the interrogatories do not seek to discover a new cause of action and are not vexatious or oppressive or a fishing expedition.

[6]    Mr Holmes, for Mr Simmons, submits the orders are unnecessary and the interrogatories are vexatious and oppressive. He points to the plaintiffs’ search of his Mr Simmons’ electronic devices confirming he does not have any confidential documents at issue or any evidence he had obtained or sought to obtain them. He points to the affidavits Mr Simmons has already provided. He submits it is not apparent there has been any unauthorised access of the plaintiffs’ computer systems by any person at all, given the plaintiffs’ forensic evidence identifies only one instance of unauthorised access. He submits Mr Simmons no longer has faith the plaintiffs will ever be satisfied with his answers and is concerned they are embarking on a fishing expedition.

2      Todd Pohukura Ltd v Shell Exploration NZ Ltd [2009] NZCA 561 at [14]-[15].

Should the interrogatories be answered?

[7]    Counsel have helpfully analysed the interrogatories in four groups. I treat them in turn:

(a)Usernames and passwords (questions 1 to 3):  Mr  Holmes submits  Mr Simmons has already addressed whether he knew the current password at the time of alleged access. But the amended statement of claim pleads that the plaintiffs are not aware of all instances of access or attempted access. The questions are not irrelevant. Mr Simmons should answer them.

(b)Knowledge of information storage (questions 4 to 6): Mr Holmes submits they are not relevant. But the extent of his knowledge could be relevant to his credibility and to his understanding of whether information was confidential. Mr Simmons should answer these questions.

(c)Attempts at access (questions 7 to 9): Mr Simmons objects that these are not limited to the pleaded allegations but concern whether he has ever attempted to access Euroclass’ computer systems, which is too wide. But other instances of attempted access are relevant to the proceedings. Mr Simmons should answer the questions.

(d)Deletion of  documents/data  (question  10):  Mr  Holmes  submits  Mr Simmons has already answered that he did not delete log files so the orders are unnecessary. But the question is not  limited  to  that. Mr Simmons should answer the question fully.

(e)Wifi and routerboard (questions 12 to 15): Mr Holmes submits these questions are not relevant to any questions at issue in the proceedings. But they are potentially relevant as circumstantial evidence to whether he made certain sorts of attempts to access the systems. Mr Simmons should answer these questions.

[8]    I consider the interrogatories are relevant and relatively limited and are not vexatious or oppressive. I order that Mr Simmons answer interrogatories one to 10 and 12 to 15 in schedule A of the application within five working days of the date of this judgment, i.e. 5 pm Wednesday 20 January 2021, in compliance with r 8.39 and verify the answers by affidavits. I award costs to the plaintiffs and against Mr Simmons on a 2B basis.

Palmer J