The Court of Appeal has partly allowed and partly dismissed Motorola Ltd.’s appeal in a supplementary ruling on discovery in its dispute with three Imagine companies.
The ruling, delivered by Mr Justice Gerard Hogan on 26 February 2016, addressed three discovery categories overlooked in the court’s principal judgment of 7 December 2015. It did not decide the underlying dispute.
On category 10(k), Motorola sought records of testing by the plaintiffs into the efficacy of equipment it installed. The High Court had made discovery conditional on Motorola identifying the equipment and explaining what it meant by “efficacy”. The Court of Appeal varied that order and allowed Motorola’s appeal in the terms sought. Hogan J said the records were relevant and discovery should be directed, while cautioning that the parties should take a reasonable and realistic approach. He said the sought results concerned the suitability and effectiveness of the WiMax network and that only documents truly relevant to that issue should ultimately be discovered.
The court dismissed Motorola’s appeal concerning category 10(r), which sought documents about the plaintiffs’ site procurement team’s consideration of whether enough sites could be obtained for an accelerated deployment plan. Motorola’s defence alleged that the first plaintiff had failed to procure an appropriate inventory of sites. Hogan J said the relevant issue was the number of sites actually obtained or available, and that the team’s views or efforts were not relevant to that issue. The High Court had declined to order the broader category and required documents showing the number of sites available; the appeal court noted that this information had been or would be provided through discovery.
The court also dismissed Motorola’s appeal concerning category 4(ii) a/b, which covered documents recording decisions to withdraw invoices from the second plaintiff in February 2011 and instead issue them to the first plaintiff, and to credit the first plaintiff in December 2011 for invoices issued to and allegedly paid by the second plaintiff.
The plaintiffs’ pleaded case was that the companies traded as one economic entity and that Motorola knew their corporate structure. Hogan J said documents, if any, recording Motorola’s understanding of that structure were relevant to a central issue. The Court of Appeal therefore left in place the High Court’s order for discovery in this category.