The High Court has refused the plaintiffs’ request for an independent IT expert to search computer systems held by the Millett defendants in a dispute over discovery affected by a ransomware attack. It also refused a request for a further affidavit about John Millett’s iPad, but directed the defendants to file an affidavit stating whether a surviving laptop was searched for responsive documents when discovery was made in May 2019.
In a judgment delivered on 27 November 2020, Mr Justice David Barniville said the plaintiffs had not shown that searches of the current server or the laptop were likely to produce relevant material that should have been disclosed. He found the proposed searches would not be meaningful and were not necessary, appropriate or proportionate. The case was listed for mention on 3 December 2020 to consider any further directions.
The underlying proceedings concern the Oaklands Property Trust, a pension fund set up for members of the Nolan family. The plaintiffs claim that more than €6.96 million was lost through alleged fraud and other wrongdoing by their solicitor, Ciaran Desmond, and John Millett and companies operated by him. The defendants deny the claims. The plaintiffs also allege that about €2.828 million from the fund was used without their knowledge or consent to help buy development land in Cork. Those are claims in the wider case, not findings made in this discovery ruling.
The immediate dispute concerned category 3 of a 2019 discovery order, covering communications between Desmond and Millett about the plaintiffs’ pension affairs and investments, including mobile phone and email records. The court found Millett’s original affidavit of discovery was seriously deficient because it did not explain the 2016 cyber attack or its effects. The plaintiffs were justified in bringing their application after receiving inadequate responses to their questions and not receiving the IT expert’s report when requested.
However, the judge accepted, for the purposes of this application, evidence from Millett and IT expert Eamon Gallagher that ransomware had encrypted the company server in November 2016 and the data was lost. The judge said the plaintiffs remained entitled to challenge the attack’s fact or extent at trial. He concluded that later affidavits and reports had reasonably addressed the discovery deficiencies.
The plaintiffs’ expert said deleted files might be recoverable from the surviving laptop. Gallagher’s evidence was that any recovered files could not be decrypted without keys, and the judge considered the prospect of relevant material speculative. The judge nevertheless required an affidavit confirming whether the laptop was searched for discovery and, if not, why.
Millett said his iPad had been checked during the discovery process and no responsive documents were found; it was traded in during July 2019. The judge found that explanation adequate and declined to order a further affidavit about the device. The plaintiffs did not pursue their initial request to strike out the Millett defendants’ defence.