FEDERAL COURT OF AUSTRALIA Sony Music Entertainment (Australia) Limited v University of Tasmania [2003] FCA 929 PRACTICE AND PROCEDURE – application seeking orders that respondent reveal date at which overwriting of data took place – routine overwriting disclosed by respondent – no specific order compelling cessation of routine overwriting – allegation of possible contempt – administration of justice – integrity of Court process – whether information relating to dates at which data recorded on backup tapes was overwritten should be provided to the applicants Lane v Registrar of the Supreme Court (NSW) (1982) 148 CLR 245 discussed BT Australasia Pty Ltd v State of New South Wales [1998] FCA 363 distinguished 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 4 SEPTEMBER 2003 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 128 OF 2003 BETWEEN: SONY MUSIC ENTERTAINMENT (AUSTRALIA) LIMITED (ACN 000 033 581) FIRST APPLICANT UNIVERSAL MUSIC AUSTRALIA PTY LIMITED (ACN 000 158 592) SECOND APPLICANT EMI MUSIC AUSTRALIA PTY LIMITED (ACN 000 070 235) THIRD APPLICANT AND: UNIVERSITY OF TASMANIA FIRST RESPONDENT THE UNIVERSITY OF SYDNEY SECOND RESPONDENT THE UNIVERSITY OF MELBOURNE THIRD RESPONDENT JUDGE: TAMBERLIN J DATE OF ORDER: 4 SEPTEMBER 2003 WHERE MADE: SYDNEY THE COURT ORDERS THAT: The Notice of Motion filed by the applicants on 1 September 2003 is dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 128 OF 2003 BETWEEN: SONY MUSIC ENTERTAINMENT (AUSTRALIA) LIMITED (ACN 000 033 581) FIRST APPLICANT UNIVERSAL MUSIC AUSTRALIA PTY LIMITED (ACN 000 158 592) SECOND APPLICANT EMI MUSIC AUSTRALIA PTY LIMITED (ACN 000 070 235) THIRD APPLICANT AND: UNIVERSITY OF TASMANIA FIRST RESPONDENT THE UNIVERSITY OF SYDNEY SECOND RESPONDENT THE UNIVERSITY OF MELBOURNE THIRD RESPONDENT JUDGE: TAMBERLIN J DATE: 4 SEPTEMBER 2003 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This application was filed on 1 September 2003. The applicants seek an order that they be furnished with information by the second respondent, the University of Sydney ("the University"), providing dates on which information stored on backup tapes, required to be produced under orders for preliminary discovery made by me pursuant to O 15A of the Federal Court Rules ("FCR"), have been deleted or overwritten. The Notice of Motion also seeks orders requiring information to be given by the University as to dates on which the University first became aware of the overwriting of the backup tapes and the steps taken by the University to determine whether any data had been deleted or overwritten. 2 The application claims to be based on the powers of the Court to ensure the integrity of its process by prevention of possible disobedience to its orders. The applicants submit that the information sought, if provided, will enable a determination to be made as to whether the preliminary discovery orders have been breached. 3 In a letter to the University's solicitors, dated 12 August 2003, the applicants' solicitors stated that the overwriting of data contained on backup tapes held by the University, after it became aware that the data was sought in the proceedings, may constitute contempt of court. The letter asserts that if the University is unwilling to supply the information requested, such refusal will be interpreted (presumably by the applicants) as an unwillingness to assist the Court in upholding the integrity of its processes. 4 The discovery order made by me on 18 July 2003 required, relevantly, that within seven days the applicants' consultant forensic investigator, Mr Thackray, be given access at the office of the respondents' solicitor, to: "(a) the backup copy of files contained on the University of Sydney School of Information Technologies servers referred to in paragraph 4 of Mr Ryan's affidavit of 7 April 2003; (b) backup copies of files contained on the University of Sydney School of Information Technologies servers of the type referred to in paragraph 4 of Ryan's affidavit but created prior to 9 January 2003;" 5 The purpose of providing the copies order was to enable Mr Thackray to investigate the items referred to in Order 5 of the orders made on 18 July 2003, using methods previously outlined by him, including the Encase procedure, in order to recover deleted information, to extract information and convert that information into readable form and to make copies of that information. 6 Paragraphs [4]-[7] of Mr Ryan's affidavit, referred to in Order 5, read as follows: "4. On 9 January 2003, a backup copy of files contained on the School's servers was automatically generated. I am informed by Bruce Janson, a Computer Systems Officer in the School, that on 14 January 2003 he searched the backup copy, identified the section of the backup copy that included all the files located in the network home directory of Mr Li at the time of the backup, and restored those files to the form in which they were backed up on 9 January 2003 onto a hard drive on one of the School's file servers. 5. In addition, on 14 January 2003 I created a compressed archive file which preserved a copy of all of [sic] the files located in the network home directory of Mr Li at that time (the '14 January copy') and saved that compressed archive on a hard drive on one of the School's file servers. 6. On 15 January 2003, I created a compressed archive file from the restored files referred to in paragraph 4 above (the '9 January copy') and saved that compressed archive on a hard drive on one of the School's file servers. 7. On 15 January 2003, I copied the 9 January copy and the 14 January copy to a recordable CD ROM. A duplicate of this CD ROM is in my custody in a locked storeroom." 7 Prior to the making of the orders on 18 July 2003, it had been pointed out in a letter on behalf of the University, as early as 18 February 2003 by their then solicitors Ebsworth & Ebsworth, to the solicitors for the applicants, that the University records included magnetic backup tapes of files on the University of Sydney School of Information Technologies ("the School") servers which were regularly updated and progressively overwritten and that backup tapes of the School's servers were not kept indefinitely as a consequence of regular updating and progressive overwriting. The reference to overwriting clearly signalled the possible loss of data. 8 In the same letter the respondents' solicitors made it clear to the applicants that the University would be prepared to make a copy and preserve existing backup tapes of the School's servers provided that the applicants paid the costs of doing so. The applicants declined this invitation. 9 Further disclosure of the routine overwriting process and the regular updating also occurred on 11 April 2003 when Mr Ryan, a witness called by the University, was cross-examined. In the course of his testimony under cross-examination, he referred to the School's overwriting regime which includes ten nightly backups over a two week period, with a series of weekly backups that "go back over a three month period". Mr Ryan informed the Court that the backup copies were in the form of tapes held within the School. At the conclusion of his cross-examination, he disclosed that the backup regime recycles tapes so that they are effectively "rolled around on a three month cycle" such that the information on the backup tapes at the present time would not necessarily be the same information held on the backup tapes three months ago. 10 From this evidence it can be seen that although the University made disclosure of the process, no order was sought by the applicants to the effect that the backup tapes not be overwritten in the normal routine processes undertaken by the University. 11 The applicants have been furnished in this case with the material which is the subject of the orders for discovery, including the backup tapes as overwritten in the normal process. 12 In order to support their submissions that the Court should intervene at this point to compel answers to the requests for information, the applicants referred to two cases. The first case was Lane v Registrar of the Supreme Court (NSW) (1982) 148 CLR 245. That case essentially turned on the construction of the language used in a particular subpoena. The question was whether the documents sought fell within the scope of the subpoena on its true construction. The Court held that a person is not obliged to produce a document which, on the true construction of the subpoena, is outside its terms. At 257, their Honours applied the principle that the essence of contempt of court is: "… action or inaction amounting to an interference with, or obstruction to, or having a tendency to interfere with or obstruct the due administration of justice, using that term in a broad sense." 13 They added at 258: "An intention to interfere with the administration of justice is not necessary to constitute a contempt; the critical question is whether the act is likely to have that effect, but the intention with which the act was done is relevant and sometimes important." 14 In my view that decision does not assist in the present case because I do not think that the routine overwriting of the material in the normal processes of University activities, in the absence of an express order to prevent that occurrence in circumstances where the activity was disclosed before orders were made, can be properly described as action which tends to interfere with, or obstruct the due administration of justice. 15 The second authority referred to by the applicants was the judgment of Sackville J in BT Australasia Pty Ltd v State of New South Wales [1998] FCA 363. In that case his Honour made an order requiring Telstra to file and serve an affidavit, made by an officer with knowledge of the facts as a result of reasonable inquiries, describing the steps taken by Telstra to preserve discoverable documents in its possession. The order also prohibited shredding or other destruction of such documents and required the officer to state whether any such documents which might have been discoverable had been destroyed since a specified date and if so, which documents or classes of documents were destroyed. 16 The discovery orders in that case were made in May 1996 yet it was not until February 1997 that Telstra first disclosed the existence of backup tapes or took any steps to restore those tapes with a view to ascertaining whether and how discoverable electronic material could be identified and presented in usable form. His Honour inferred that no steps were taken after Telstra became aware that backup tapes existed which contained or were likely to contain discoverable material. His Honour expressed dissatisfaction with the conduct of Telstra. Costs were sought on an indemnity basis from Telstra, but his Honour declined to award costs on that basis, notwithstanding that he categorised Telstra's conduct as not merely an oversight and notwithstanding that he found that there was a failure over a long period on the part of Telstra to take appropriate steps to ensure that it complied with the discovery orders made in the proceedings. 17 In the present circumstances, there was disclosure as to the normal ongoing processes of the University in relation to the overwriting and updating of backup tapes and no order was sought to prevent that process. Such a duty cannot be left to implication in circumstances where there is a suggestion that the foundation for requiring the information is the possibility of breach of Court orders. I therefore consider that the decision in BT Australasia is distinguishable from the present circumstances. I also note that what the applicants had originally sought and what was eventually agreed to by the University, was a "snapshot" of the University's records as sourced from the backup files. 18 Counsel for the applicants submitted that there was no evidence from the University as to undue hardship in complying with the request. This submission may have been relevant if a case had been made out to provide a basis for such an order. No such case has been made out. 19 For these reasons I am not persuaded that any ground has been made out to justify an order requiring the University to make additional information available as to dates or as to steps taken by the University, on the suggestion that it possibly may lead to a line of inquiry and investigation indicating that there may have been a wrongful interference with the integrity of the Court process. The material relied on is tenuous in view of the express and repeated disclosures by the University of the process and the absence of any order restraining the routine overwriting. 20 I therefore dismiss the application with costs. I certify that the preceding (20) twenty numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 4 September 2003 Counsel for the Applicants: S G Finch SC J M Hennessy Solicitor for the Applicants: Gilbert & Tobin Counsel for the Respondents: B Walker SC D T Kell Solicitor for the Respondents: Baker & McKenzie Dates of Hearing: 1 September 2003 Date of Judgment: 4 September 2003