Monday 16 January 2017

PR firm 'in breach' of order allowing inspection of computers involved in alleged conspiracy, businessman Denis O'Brien tells High Court

Published 20/10/2015 | 13:24

Denis O'Brien
Denis O'Brien

A dispute over the level of access being given to Denis O'Brien's experts for their inspection of computers of a PR firm involved in an alleged conspiracy against the businessman will have to be heard by the High Court later this week.

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Lawyers for Mr O'Brien returned to court this morning to complain Red Flag Consulting, and a number of directors and employees, were in breach of an order made last Friday allowing for "forensic imaging" of computer files to ascertain who is involved in the alleged conspiracy.

Mr O'Brien says an unidentified client of Red Flag is behind the conspiracy to defame and damage him commercially.   He received material in a USB stick delivered anonymously to him containing a dossier of documents, many of which are allegedly defamatory, it is claimed.

He initially sought a civil search warrant allowing his side to go into Red Flag's offices and inspect all its computers but this was refused by the High Court as being too draconian.  

He instead got an order freezing any tampering with the documents on file and then last Friday got another order allowing for  a forensic imaging process be carried out jointly by IT experts for the sides whereby photographs are taken of files but they are not looked at.  

The court has fixed December 8 for the hearing of  injunction applications permitting the O’Brien’s side inspect the material which has been photographed.

The claims are denied by Red Flag and the other defendants, including executives Gavin O'Reilly, a former CEO of Independent News & Media and former senior executive with INM,  Karl Brophy, who is Red Flag's CEO.

Mr Justice Colm Mac Eochaidh fixed next Friday for the hearing of the latest dispute after he heard an application from Martin Hayden SC, forMr O'Brien, for orders requiring the company to comply fully with last week's High Court order.

The application was strongly opposed by Michael Collins SC, for Red Flag, who argued they were fully in compliance.

The judge gave Mr O'Brien's lawyers permission to serve at short notice a further application to extend last week's order.  He will deal with that application and Red Flag's opposition to it on Friday.

Earlier, Mr Hayden said after the court made the forensic imaging order last Friday, the experts for both sides met where a pre-inspection regime was agreed.  However, after it started, their experts were told "we were not getting Gavin O'Reilly's equipment" and that there would not be any access to "cloud" based material (which is an internet-based, rather than locally based, system of storage).

Mr Hayden said access to cloud-based metadata is very important in order to trace whether material has been deleted or not.

They had also been told Red Flag did not maintain any back up of its computer files even though it is a consulting company, he said.

Counsel also said their experts had also been told they could not have access to Karl Brophy's computer until today (Tuesday) because he physically did not have it.

Mr Collins, for Red Flag, said  the terms of the order granted last Friday were very clear in that they only applied to inspection of computers involved in the compilation of the dossier.  His side had provided that access as well as allowing access to the computers of two people who were not defendants but had an involvement in the dossier.

Gavin O'Reilly had nothing to do with the dossier and in fact only used a Red Flag computer once, in 2014.  Mr Brophy's computer was available yesterday but the experts had not had time to get round to it, he said.

Mr Collins said "unless I have lost my grasp of the English language" last Friday's  limited access to the computers of those involved in creating, editing and reviewing the dossier documents.

Mr Hayden replied that this was a case of unlawful conspiracy and while Red Flag says Gavin O'Reilly had nothing to do with the dossier, who was to decide that.  The defendants were pre-determining what can be looked and and they (O'Brien side) were saying they could not do that.

Mr Justice Mac Eochaidh said he believed the O'Brien side would have to apply to the court to extend last Friday's order.   He refused Mr Collins' request for an order that Red Flag is complying and said both matters should be decided at the same time on Friday.

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