The High Court refused an early application by software company SoftCo to inspect DHL Information Services (Europe) s.r.o.’s computer files and programmes, ruling that the request was not yet shown to be necessary. The court left open the possibility that SoftCo could renew it later in the proceedings.
The dispute followed the breakdown of a relationship under which SoftCo had supplied and maintained software used to manage DHL’s records. SoftCo alleged that DHL could not access or export archived records without using or manipulating SoftCo’s software, and suspected that its intellectual property had been infringed. DHL denied the allegations. It said Hewlett Packard had developed a migration tool to retrieve DHL’s historical data, with instructions not to interfere with SoftCo’s rights.
SoftCo’s plenary action claimed, among other relief, damages for alleged copyright breach. Its January 2013 motion sought an inspection of DHL’s computer files and programmes. The application before the court concerned that inspection request alone; other parts of the motion had been adjourned without a date.
SoftCo relied on Order 50, rule 4 of the Rules of the Superior Courts. Although the motion referred to an audit under the parties’ agreements, the judge understood SoftCo to be pursuing inspection under the court rules, rather than relying on a contractual audit right. Whether any audit right survived termination was not determined.
Justice Ryan said inspection can be ordered before pleadings are complete in an appropriate case, but practical necessity must be established. He found that SoftCo had already set out its alleged wrongs with considerable specificity in affidavits and could plead its case without inspecting DHL’s systems. The judge also said the requested inspection was open-ended and difficult to limit or supervise before the issues were defined through pleadings and disclosure.
The court rejected SoftCo’s concern that DHL or Hewlett Packard might cover their tracks, noting that the system changeover had happened some time earlier and that the new system had been operating during 2013 and part of 2012.
The ruling was not a final decision on the copyright or contract allegations, nor a permanent refusal of inspection. Justice Ryan’s conclusion was “Not Yet”: the request could be renewed later, when the circumstances of the proceedings might make it possible to assess its scope and necessity.