A New Zealand court has decided that Megauploads’ Kim Dotcom and others are entitled to disclosure of at least some documents to help them prepare their cases against the US government’s demand for their extradition. There is some irony in the fact that the decision opens with a reference to a House of Lords judgment: if the US had wanted to extradite Mr Dotcom from the UK they would have been able simply to help themselves without any substantive hearing, on the merits or otherwise,  as a by-product of Tony Blair’s simpering grovelling to President Bush in 2003.

Start by looking the article Kim Dotcom wins right to FBI files on the New Zealand technology website stuff.co.nz. Dotcom is charged with multiple copyright offences, and the FBI want him to stand trial in the US. Judge David Harvey’s decision, which you will find here, will interest readers of this blog mainly for its focus, towards the end, on Dotcom’s right to disclosure of documents relevant to the claims against him.

The US government’s main contention, summarised in paragraph 12 of the decision, is that there is no right of general discovery in extradition proceedings; they say that “A record of the case is deemed to be admissible and is presumed to be reliable”.

There are echoes here, of course, of the general US attitude towards civil discovery from foreign jurisdictions.  “I have here an order from an AMERICAN COURT” said a character in one of my recent parodies on the subject, confident that the mere demand from such an important source was enough to secure compliance. The rest of the world can generally beat off such demands and force a compromise by reference both to the excessive breadth of the request and to local data protection laws. The consequence of the 2003 Extradition Act agreed between Blair and Bush is that a UK subject facing the loss of liberty pending trial in a US jail has fewer rights than a UK data controller has in respect of documents in his care.

Most of the cartoons illustrating Blair’s brown-nosing relationship with Bush are too obscene for publication here; as with nearly everything Blair did, that relationship was veiled in the dishonesty which was Blair’s defining characteristic. Blair’s standard justification – “I did what I thought was right at the time” is little consolation to UK businessman Christopher Tappin and others who face the standard US choice of waiting years for a trial or of taking jail time anyway on a plea-bargain. The UK coalition promised attention to this state of affairs but cannot, apparently, be bothered to do anything about it.

Fortunately for Kim Dotcom, New Zealand takes a different attitude to heavy-handed extradition demands from the US and requires, at least, that the US government makes some kind of a case in support of its demands. An extradition hearing is fixed for August 2012 and the principal issue which came before Judge Harvey is whether disclosure is available in this context and, if so, what disclosure should be made.

Judge Harvey is no stranger to electronic discovery in the civil context – I wrote here about an article of his published in the Society for Computers & Law website on the subject of New Zealand’s new eDiscovery Practice Direction. The principles applicable in criminal proceedings generally, and extradition applications in particular, are not necessarily the same, as his decision makes clear. Much of the decision concerns the application of the New Zealand Bill of Rights Act, and it is not until paragraph 215 that Judge Harvey turns to disclosure.

His conclusion is that there is at least a limited right to disclosure, and I will leave you to read these relatively short sections for yourself. The fact that “actions by and on behalf of the requesting state have deprived Mr Dotcom and his associates of access to records and information” gives you the feel for the balance which Judge Hervey thinks appropriate. Because all the computers have been seized, “[Mr Dotcom] simply does not have access to information which may assist him in preparation for trial. As I have said, this information is in the hands of prosecuting authorities and at the moment is denied him.”

Having considered what the proper scope should be of disclosure, Judge Harvey turns to considering how the relevant documents can best be identified. The key paragraph here is 257 in which Judge Harvey refers to

“recent amendments to the High Court rules relating to electronic disclosure and what is widespread and growing practice of the use of computer equipment and specialised search techniques to swiftly recover relevant material, to eliminate irrelevant or repetitive material and to utilise a number of such techniques including keyword searching, concept searching, clustering technology, predictive coding or document prioritising technology, e-mail threading and near duplicates identification”.

To those of us familiar with these techniques, this seems a statement of the obvious, but then it seems obvious to any fair-minded person that someone faced with extradition proceedings should have the right to prepare his case properly. There are, alas, few judges in any jurisdiction competent to deliver a succinct summary like this of the tools and techniques which might be used to get quickly to the documents which matter.  Dotcom is lucky in his judge, just as he is lucky to be in a jurisdiction which, unlike the UK, believes both that foreign powers should make their case for extradition and that the person concerned should have the right to prepare their case in reply.

Home