Denis O’Brien bid to access files of Red Flag employee struck out

An application by businessman Denis O'Brien aimed at accessing documents held in the Dropbox account of an employee of Red Flag Consulting has been struck out after the parties came to an agreement.

California-based Dropbox Inc is an internet file hosting service and Mr Justice Colm MacEochaidh was told at the High Court on Tuesday that discussions concerning access to material in the Dropbox facility of a Red Flag employee had resulted in an agreement on discovery.

Mr O’Brien’s lawyers said the material it sought to discover, described as being related to distribution of a dossier, would be provided by Dropbox to Red Flag and would be then be subject to any discovery order made by the court.

In those circumstances, the discovery motions against Dropbox Inc and Dropbox Ireland were struck out. It was also agreed that Mr O’Brien would provide an indemnity towards Dropbox’s costs, the court heard.

Lawyers for Red Flag, which opposed the motion for non-party discovery against Dropbox, said it did not accept Mr O’Brien’s side’s description of the material at the centre of the application against Dropbox.

Agreeing to strike out the motions, the judge remarked that too much of what was being put before the court was “for people other than me”.

Costs

The judge also ruled that Red Flag was entitled to its costs against Mr O’Brien in respect of the motion against Dropbox but agreed to put a stay on that order pending the final outcome of the action.

The court previously heard that Dropbox had raised issues including whether, under US federal law, it could release the material sought without a court order to anyone but the employee involved.

It had also said it lacked the technical ability to provide the categories of documents being sought to either the relevant employee or Mr O’Brien.

Following initial failure to reach agreement with Dropbox, Mr O’Brien sought non-party discovery orders against Dropbox Inc and Dropbox Ireland.

The application was made in preparation for Mr O’Brien’s action alleging conspiracy and defamation against Red Flag and some of its executives and employees.

The judge last week reserved his ruling on Mr O’Brien’s application for orders requiring Red Flag discover documents which may identify the client who commissioned it to prepare a dossier on the businessman which, he alleges, evidences a conspiracy to damage him. The dossier comprises mainly press cuttings and other documents including the “Moriarty Tribunal Explainer” and “Who is Denis O’Brien?”.

Red Flag claims it will suffer “irreparable harm” if ordered to disclose documents revealing the identity of the client. It has agreed to provide documents, including concerning the circumstances of its retainer regarding the dossier, but insists it is entitled to maintain the client’s confidentiality.

Red Flag denies defamation and conspiracy and also pleads that Mr O’Brien has failed to establish evidence of publication of the dossier. A hearing date for the full action has yet to be set.