Lonestar Communications Corporation LLC v Kaye & Ors

Under the disclosure pilot, Issues for Disclosure must be key issues in dispute which are crystallised in the statements of case and require contemporaneous documents for fair resolution. Disclosure cannot be expanded to investigate unpleaded issues or to enable a party to formulate a further case. Model C requests must relate to a particular Issue for Disclosure and identify particular documents or narrow classes of documents. The resulting searches must be reasonable and proportionate, having regard to the matters in CPR PD 51U, including the nature and importance of the case, likely probative value, burden and expense of searching, and the need for efficient and proportionate litigation.

Lonestar brought claims arising from alleged distributed denial of service attacks against its telecommunications business in Liberia. It alleged that the attacks were carried out by Daniel Kaye with the involvement of Avishai Marziano and Ran Polani, and sought to establish liability against Cellcom Telecommunications Ltd and Orange Liberia, Inc. through attribution and vicarious liability.

The hearing was a case management conference concerning the Disclosure Pilot under CPR PD 51U. The court determined whether an additional Issue for Disclosure concerning the corporate defendants’ knowledge should be included and ruled on disputed Model C disclosure requests.

1. Issue 5(a). The proposed issue asking to what extent Cellcom and Orange Liberia were aware of the attacks, “through Mr Marziano and/or Mr Polani and/or otherwise”, was removed. The pleaded case concerned the knowledge, roles and conduct of Mr Marziano and Mr Polani. It did not plead relevant knowledge by any other individual. A non-admission explaining an inability to admit or deny allegations did not introduce a positive issue concerning unidentified persons. The claim for exemplary damages did not broaden the pleaded issues.
2. Issues for Disclosure must be key issues in dispute identified in the statements of case. They do not extend to every disputed pleading issue, and cannot be formulated to obtain disclosure merely so that a party can develop or particularise an unpleaded case. The knowledge of Mr Marziano and Mr Polani was sufficiently covered by the existing issues.
3. Model C disclosure is request-led and search-based. A request must relate to a particular Issue for Disclosure and concern particular documents or a narrow class capable of precise description. The court may permit, refuse or narrow a request. The minimum documentation necessary for fair resolution must be identified.
4. All disclosure orders must be reasonable and proportionate under CPR PD 51U. Relevant factors include the nature and complexity of the issues, importance of the case, likelihood of probative documents, number of documents, ease and expense of search and retrieval, the parties’ financial position, and the need for expeditious and proportionate determination.
5. The court permitted or modified a number of requests, including requests for documents held by appropriately selected senior custodians, relevant bank records, documents concerning the alleged attacks and specified financial interests. It refused requests which were too broad, commercially intrusive or insufficiently connected with the Issues for Disclosure. Cellcom’s and Orange Liberia’s technical requests were permitted subject to liberty to apply if the exercise proved unreasonable or disproportionate.

First-instance case management decision. No appellate history is stated in the judgment.