The Court of Appeal has varied parts of High Court discovery orders in a €138 million dispute between three Imagine companies and Motorola over the supply and roll-out of a WiMAX broadband network. The judgment, delivered by Mr Justice Gerard Hogan on 7 December 2015, dealt with appeals and cross-appeals about which documents each side must disclose. It did not decide the underlying claims.
The plaintiffs claim damages for breach of contract and negligence, as well as negligent misrepresentation and misstatement. They allege that the network lacked the throughput and capacity needed for their requirements and that the roll-out was delayed. Motorola disputes the claims. The High Court had ordered discovery after a four-day application; both sides challenged parts of that decision.
The Court of Appeal upheld discovery of Motorola’s pre-contract testing and internal reports relevant to what it knew about the network’s capability and suitability. It also ordered discovery of briefing notes prepared by Motorola project manager Brian Grewe between 1 February and 1 December 2010, and upheld disclosure concerning Motorola’s knowledge of the Imagine companies’ structure and their negotiations of agreements.
The court rejected Imagine’s request for broader pre-contractual documents about representations, risk assessments and tender matters, finding those categories irrelevant in light of the pleadings and the agreement’s entire-agreement clause. It also rejected disclosure about Motorola’s other WiMAX projects in Mexico, Bahrain and the United States, concluding that problems elsewhere would not establish that the system was inherently defective or that this project failed.
Other rulings addressed technical problems, throughput and capacity, project timelines and equipment performance. The court upheld disclosure of records about technical and operational problems and agreed timelines. It ordered Motorola to disclose documents showing whether equipment met technical standards, and removed conditions limiting some discovery to internal documents or making it dependent on counter-discovery. For customer-premises equipment, it directed disclosure of investigation results as of dates specified in the claim, including October and December 2009 and April 2010.
The court also narrowed or deferred some requests. It varied the period for certain Imagine group tax records to begin on 1 January 2008. Motorola’s broad request for documents about the plaintiffs’ business arrangements was adjourned while it pursued alternatives such as notices to admit facts or further interrogatories; a renewed discovery application could follow if those steps proved ineffective. The judgment addressed only the appealed categories, and the dispute remained to be tried.