IBB Internet Services Ltd & ors -v- Motorola Ltd [2015] IEHC 54 (03 February 2015)

Judgment


Title:	IBB Internet Services Limited & ors -v- Motorola Limited
Neutral Citation:	[2015] IEHC 54
High Court Record Number:	2010 11862 P
Date of Delivery:	03/02/2015
Court:	High Court
Judgment by:	Barrett J.
Status:	Approved

___________________________________________________________________________

Neutral Citation: [2015] IEHC 54

THE HIGH COURT

2010 11862 P

BETWEEN:

IBB INTERNET SERVICES LIMITED AND IRISH BROADBAND INTERNET SERVICES LIMITED (TRADING AS IMAGINE NETWORKS) AND IMAGINE COMMUNICATIONS GROUP LIMITED

Plaintiffs

AND

MOTOROLA LIMITED

Defendant

Judgment of Mr. Justice Barrett delivered on 3rd February, 2015

Key issue arising
1. This judgment concerns applications for discovery brought (a) by the plaintiffs against the defendant and (b) by the defendant against the first and second-named plaintiffs, and in a slightly different form against the third-named plaintiff. Any views expressed herein are tentative in terms of the strength or weakness of any case that might be made by either side at plenary hearing.

Background facts
2. The parties to these proceedings have now been before the courts so often in one procedural application or another, all of which have been brought in the context of the within proceedings but without any resolution of the central issues arising, that this Court has no need to describe the background facts in its own words. Instead it can transplant into this judgment the relevant section of Charleton J.’s judgment in IBB Internet Services Limited & Ors v. Motorola Limited [2013] IEHC 541, at paras. 1 and 2, and supplement what he had to say with a few sentences of its own. Per Charleton J:

“1. This action was commenced by plenary summons on 23 December 2010. While the plaintiffs are separate legal entities, they claim to be a single economic entity and assert the right to be treated as such in law and in fact. They claim damages for breach of contract and in negligence and in misrepresentation against the defendant due to alleged delay in the rollout of a broadband Internet network and in the dysfunction of such portion of that network as was provided. The relevant contract was negotiated between March and October 2009 and was to become operational in December of that year. The parties agree that on 13 October 2009 a written contract, called a master services agreement, was signed between the second named plaintiff and the defendant and that this was later novated to the first named plaintiff on 10 November 2009. In addition, the plaintiffs allege that the third named plaintiff entered into a collateral agreement, apparently oral, with the defendant. Representations and warranties seem crucial to the case made by the plaintiffs as to the suitability and functioning of the network. The main contract of 13 October 2009 contains clauses limiting liability and confining the relationship between the parties to contract in the terms as therein set out. The series of sites over which this network was to operate was to be supplied by the defendant to the plaintiffs in groups of 15, amounting eventually to 120 sites actually supplied, and there were 5 others included in a test module. In all, 402 sites were projected ultimately. Provisional acceptance of the sites under a term of the written contract is alleged by the defendant to be a warranty of satisfaction. Of these there are said to be 51 signed acceptances, on behalf of which plaintiff or on behalf of all plaintiffs, together with 74 deemed acceptances by virtue of the elapse of time. In addition, the contract provided for a final acceptance of which 31 were signed, in the same context, and 94 are deemed. The terms of the contract seem to be such that unless a batch of 15 sites is ordered, by whichever of the plaintiffs is responsible, there is no obligation on the defendant to supply anything or on the plaintiff to order anything. Because of dissatisfaction, whether for good reason or not, no sites have been ordered since July 2010.

2. It is more than unusual for a case entered into the commercial list to be three years old and not to have been tried. This case has not even proceeded to the stage of discovery. The plaintiffs claim to have been bombarded by procedural motions, of which they say this is the latest. The defendant claims that by reason of pleading alternate facts, there has been a necessity for the plaintiffs to recast the statement of claim on three occasions, the current version being the fourth. There are three prior written judgements of the High Court on this claim about this very lengthy statement of claim; of Kelly J on 6 July 2011, of Clarke J on 9 November 2011 and of McGovern J of 12 October 2012. In addition, the High Court has refused the defendant security for costs, which ruling has been appealed to the Supreme Court and is awaiting judgement. It is impossible to feel satisfaction with the progress of this case even since that date of the last version of the statement of claim; the fourth. The Court is entitled to emphasise that, whatever the rights and wrongs of this series of pre-trial manoeuvrings, about which no comment is made, the parties are under a duty to the court to prepare a case for hearing through cooperating with each other in aid of the fundamental obligation of identifying the issues to be tried and making the case ready for hearing.”

3. The last-mentioned appeal to the Supreme Court was unsuccessful. It is now over four years since the issuance of the plenary summons and the core dispute arising between the parties continues to remain un-tried. However, with the present applications for discovery, the date of the ultimate trial at least draws closer, though the scale of discovery sought before, and granted by, this Court hereafter means that in reality the date of trial is still some way off. Perhaps the only other matter to mention in addition to Charleton J.’s summary of the background facts is the financing arrangements that were agreed between the parties. Thus, although the master services agreement was executed on 13th October, 2009, it did not become operative on that date. Instead it was subject to a provision that it would become operative only in the event that an equipment financing agreement was executed between the second-named plaintiff and Motorola Credit Corporation. This last-named agreement was eventually executed on 3rd December, 2009. Mention is made of the financing arrangements because some of the discovery requests considered by the court hereafter relate and/or refer to same.

Legal background
4. There is no significant dispute between the parties in these proceedings as to the applicable law, or that the applicable criteria for ordering discovery are the relevance of the documentation and the necessity of its discovery to the fair disposal of the matter arising or for the saving of costs, subject to the observation of Murray J. in Framus v. CRH plc [2004] 2 IR 20 at p.38 that once relevance is established, a finding of necessity will generally follow. Reference was made in the course of the hearings to this Court’s judgment in Re Astrazeneca AB & Patents Acts [2014] IEHC 189, and to the court’s unsurprising endorsement therein of the principles originally propounded by Brett L.J. in Compagnie Financiere du Pacifique v. Peruvian Guano Co. (1882) 11 QBD 55, an endorsement which was both required and informed by, inter alia, the decision of the Supreme Court in Ryanair p.l.c. v. Aer Rianta c.p.t. [2003] 4 IR 264, in which Fennelly J., at p.275, refers to the decision of Brett L.J. in Peruvian Guano as “the universally accepted test of what is the primary requirement for discovery, namely the relevance of the documents sought”. The possible gloss which this Court added in its judgment in Astrazeneca was its determination, by reference to applicable case-law, that compliance with the requirements in the Rules of the Superior Courts as to discovery requires an applicant to show, inter alia, that requested documentation ‘may, not must’ be relevant. Any decision as to discovery must also be framed within the caveat as to proportionality to which Murray J. refers in Framus, at p.38, and to which Fennelly J. makes reference in Ryanair v. Aer Rianta.

5. Counsel for Motorola observed during the hearings that “The court’s experience will no doubt be that there is a vast amount of discovery made and very little ever referred to at trial”. Certainly, sitting in a Victorian-age courtroom, Brett L.J. could never have envisioned the scale of work that his judgment in Peruvian Guano would engender in our data and documentation-rich Information Age when discovery costs so much in money, time and resources, typically unleashes a sea of documentation which contains only a limited number of documents that are of central focus at the later trial, rarely if ever results in a ‘Eureka!’ moment in which discovered documentation entirely resolves an issue arising, and is intrinsically vulnerable to abuse. Be that as it may, this Court is bound by precedent; it must apply the rules of discovery as it finds them and as the law requires, even if the consequence is to unleash a deluge of data and documents that satisfy the criteria for discovery but which, the court suspects, for such seems usually to be the way, will not radically transform how matters now lie between the parties.

Conclusion
6. For the reasons identified in the appendices to this judgment, the court orders discovery (a) by the defendant to the plaintiffs on the basis identified in Appendix A, (b) by the first and second-named plaintiffs to the defendant on the basis identified in Appendix B, Part I, and (c) by the third-named plaintiff to the defendant on the basis identified in Appendix B, Part II.

APPENDIX A

DOCUMENTS TO BE DISCOVERED

PURSUANT TO PLAINTIFFS’ APPLICATION

CATEGORY 1

REPRESENTATIONS

Documents sought:

? Category I.(i). Documents created during the period from 1st August, 2008 and 13th October, 2009, that evidence and/or record any representations made to the Plaintiffs or any of them concerning (a) the testing, approval and commercial availability of equipment, software and configuration to be used in the Network; (b) [withdrawn]; (c) the suitability of the proposed Network for the Plaintiffs’ requirements; (d) the roll-out of the network in a specific timeframe.

? Category I.(ii). Documents produced by the Defendant, its servants or agents and any communications passing between the defendant and Motorola Inc., Motorola Credit Corporation at senior management level and during the Tender Stage in respect of the assessment and/or escalation of risk relating to the Defendant’s ability to deliver the WiMAX Network tendered for (or to be tendered for), including any relevant ‘risk models’ to include but not be limited to documents produced by the following persons: a. Joe Cozzolino; b. Steve McCaffery; c. Owen Bridle; d. Eric Pradler; e. Jim Hall; f. Neil Phimister; g. Andy Hunt; h. Gerard Grady.

? Category I.(iii). Documents created during the period from 1st October, 2008, to 30th November, 2011, that evidence and/or record the manner in which any assessed risk associated with the WiMAX Project was accounted for including, but not limited to, relevant project profit and loss assessments or models.

? Category I.(iv). Any mitigation plans (or similar type documents) and/or documents created during the Tender Stage that evidence and/or record the preparation thereof arising from the assessment, escalation and/or reassessment of risk associated with the Defendant’s Tender.

? Category I.(v). Any discrepancy reports (or similar type documents) produced during the Tender Stage in relation to the Defendant’s Tender and the equipment and/or services to be provided pursuant to the terms of the Master Services Agreement to include, but not being limited to, the following matters: a. Project Delivery; b. Technical Capability/Performance; c. Staff, Skills and Resources; d. Financial.

The defendant has rejected these categories of discovery on the basis that each of them relates to a plea of fraud that has not been made (hereafter referred to as the “Fraud Argument”). It has also raised the contention (hereafter referred to as the “Admitted Representation Argument”) that once the fact that a representation is admitted as having been made, the discovery of documentation relating to such representation becomes an irrelevance. Furthermore, the defendant argues that the documentation sought in these categories is not probative of any matter in issue. The court does not accept this last contention. As to the Fraud Argument, the plaintiffs have acknowledged that no claim as to fraud is being made, thus rendering it unnecessary for the court to consider this argument. As to the Admitted Representation Argument, the court does not accept the contention made. It appears to the court that while a representation may be admitted, the context within which the representation was made will almost certainly be of relevance to, for example, a claim of misrepresentation, one of the many grounds of claim that is relied upon by the plaintiffs. The court is satisfied that the documentation sought is relevant and necessary to the case being made by the plaintiffs, not least as regards the claim of misrepresentation made by the plaintiffs. The court orders discovery of this category of documentation.

? Category I.(vii). Any internal reports prepared by the Defendant, its servants or agents during the Tender Stage addressing the ability or otherwise of the Defendant to deliver the equipment and services, the subject matter of the tender, including, but not limited to: a. Core; b. Transmission; c. Ran; d. Base Stations; e. CPE [Customer Premises Equipment]; f. Throughput; g. Capacity; h. Performance; i. End to End performance.

The defendant has rejected this category of discovery on the basis of the Fraud Argument. The plaintiffs have acknowledged that no claim as to fraud is being made, thus rendering it unnecessary for the court to consider this argument. It appears to the court that the documentation being sought in this category is relevant and its production necessary, not least as regards the claim of misrepresentation that is being made. The court orders discovery of this category of documentation.

? Category I.(viii). Documents that evidence and/or record the sign-off by the Defendant, its servants or agents, in respect of any equipment or services to be provided by it to the Plaintiffs or any of them during the preparation, submission and/or revision of the Tender including, but not being limited to compliance considerations such as: a. Product availability and suitability; b. Services; c. Legal; d. Accounting.

The defendant has rejected discovery of the documents sought at a. and b. on the basis of the Fraud Argument and on the basis that they do not pertain to matters in issue in the proceedings. The Defendant has rejected the documents sought at c. and d. on the basis that they are not relevant and necessary. The plaintiffs have acknowledged that no claim as to fraud is being made, thus rendering it unnecessary for the court to consider this argument. It appears to the court that the documentation being sought at points a. to d. is relevant and its production necessary, not least as regards the claim of misrepresentation that is being made. The court orders discovery of this category of documentation.

? Category I.(ix). Documents created during the Tender Stage that evidence and/or record the project business case, together with documents evidencing the consideration thereof that guided the decision of the Defendant and the approval by Motorola Inc., for it to enter into the MSA [Master Services Agreement].

The defendant has rejected this category of discovery on the grounds that the documents relate to matters that are not in issue and that the category is in any event too broad. The court considers that this category of documentation is so vaguely defined that (a) the relevance of the documentation to the plaintiffs’ case has not been shown, and (b) it would, because of its vagueness, be impossible to satisfy in practice. The court declines to order discovery of this category of documentation.

? Category I.(x). Documents that evidence and/or record the testing of the Defendant’s solution at the Tender Stage, including any testing and/or any assessment carried out, in accordance with standard Motorola quality assurance requirements and/or in commercial deployment.

This category of discovery has been agreed between the parties and requires no consideration by the court.

? Category I.(xi). Documents created during the Tender Stage that evidence and/or record that the Network to be provided could not be implemented and/or supported by the Motorola services or support organisations.

The defendant has rejected this category of discovery on the basis of the Fraud Argument. The plaintiffs have acknowledged that no claim as to fraud is being made, thus rendering it unnecessary for the court to consider this argument. It appears to the court that the documentation being sought in this category is relevant and its production necessary, not least as regards the claim of misrepresentation that is being made. The court orders discovery of this category of documentation.

CATEGORY II

UNTITLED

? Documents created during the period from 14th October, 2009 to 20th December, 2009, that evidence and/or record any representations made to the Plaintiffs or any of them concerning the following matters:

(i) The proposed or actual resolution of technical problems* by the Defendant

(ii) The rate of roll out of the Network; and/or

(iii) Contractual Acceptance in respect of Phase 1 (including Phase 1a and Phase 1b)

* the definition of technical problems to be agreed.

This category of discovery has been agreed between the parties and requires no consideration by the court.

CATEGORY III

UNTITLED

? Category III.(i). Documents that evidence and/or record the reasons and/or motivations for the exchange of e-mails: a. on 21st December, 2009, between Derek Kickham, Sean Bolger, Steve McCaffery and Joe Cozzolino; and b. on 23rd December, 2009, between Eric Pradler, Steve McCaffery, Joe Cozzolino, Eric Pradler, Sean Bolger and Derek Kickham.

The court understands that it is not the e-mails per se that are being sought but “documents that evidence and/or record the reasons and/or motivations for the exchange of e-mails”. The court considers that this category of documentation is so vaguely defined that (a) the relevance of the documentation to the plaintiffs’ case has not been shown, and (b) it would, because of its vagueness, be impossible to satisfy in practice. The court declines to order discovery of this category of documentation.

CATEGORY IV

UNTITLED

? Category IV.(i). Documents created during the period from 1st January, 2010, to 31st May, 2010, that evidence and/or record the following matters: a. that the Defendant was committed to speeding up the roll-out of the Network; b. that the Defendant was committed to making the Plaintiffs’ business a success; c. that the Defendant would continue to investigate problems affecting the level of throughput until it had the concurrence of the Plaintiffs or any of them in this regard; d. that the Defendant was able, willing and committed to addressing the Plaintiffs’ financial loss.

It appears from the hearings that there were discussions between the parties in relation to the identified matters that commenced on 13th January 2010 and at various dates thereafter. The defendant has offered discovery of documentation in this category from 1st February, 2010 (inclusive) through to 19th May, 2010 (inclusive) without any clear reason for settling on the start-date offered. The plaintiff is satisfied with the end-date mentioned in this offer. As the discussions commenced on 13th January, 2010, following an e-mail of complaint issuing from the plaintiffs to the defendant, the court considers it appropriate to order discovery of this category of documentation from that date through to 19th May, 2010 (inclusive).

? Category IV.(ii). This category of discovery has been agreed between the parties and requires no consideration by the court.

? Category IV.(iii). Documents to include but not being limited to briefing notes given to and/or prepared by Brian Grewe between the period from 1st February, 2010 to 1st December, 2010.

The defendant has offered to make available briefing notes given to and/or prepared by Mr. Grewe in relation to the WiMAX project in Ireland from 1st February, 2010, to 29th February, 2010. The court does not consider that the relevance of the wider category of documentation has been established by the plaintiffs. To the extent that an order in this regard is required, it being understood by the court that the offer made by the defendant remains open for the plaintiffs to accept, the court orders discovery of the offered documentation.

? Category IV.(i) (bis). Documents created during the period from 1st June, 2010 to 31st August, 2010, that evidence and /or record any representation made by the Defendant, its servants or agents to the effect that a. the Defendant was able and committed to addressing the Plaintiffs’ financial loss; b. the Defendant was willing and capable of speeding up the rollout of the Network; c. [withdrawn].

The defendant has offered discovery of the above documentation for the period 1st June, 2010 to 30th June, 2010. The plaintiffs have sought the longer period of discovery on the basis that a meeting took place between relevant named parties in July, 2010, at which the plaintiffs’ financial loss was discussed. It appears to the court that this category of documentation is a category of documentation that may be of some importance and is clearly of relevance to the case being made by the plaintiffs. The court orders that this category of documentation be discovered on the basis, and for the timeframe, sought.

? Category IV.(ii) (bis). Documents and in particular briefing notes and/or briefing packages provided to Bruce Brda, Brian Grewe, Steve McCaffery, Graham Bolton and/or Eric Pradler in relation to the rectification plan provided to the plaintiffs in June 2010.

? Category IV.(iii) (bis). Documents and in particular briefing notes and/or briefing packages provided by the Defendant to MCC [Motorola Credit Corporation] in relation to the meeting held in Dublin in or around 1st July, 2010, and attended by Sean Bolger, Brian O’Donohoe and Derek Kickham of the Plaintiffs and Gary Tatje and Dave Klieforth, both of MC together with any notes or minutes in respect thereof.

The defendant maintains that it does not understand the basis for the request or the reference to “the rectification plan”. It also offers the Admitted Representation Argument as a basis for rejecting the above categories of discovery. As to the first of these contentions, the court is unconvinced by the purported lack of comprehension of a particular choice of words. It is clear, even to the court after four days of hearings, that the reference to “the rectification plan” is a reference to any course of remedial actions that was agreed between the parties at any time during June 2010. It is clear too from the specificity of the request that the plaintiffs consider that the named parties would be in possession of such documentation as was sought, that some form of agreed course of remedial actions, by whatever name, was agreed between the parties, and, lastly, that any such agreed course of actions, by whatever name, would be of relevance to various of the claims made by the plaintiffs. As to the Admitted Representation Argument, it appears to the courts that the documentation sought is relevant and necessary to the case being made by the plaintiffs, not least as regards the claim of misrepresentation. The court understands, not least from the ground of rejection proffered by the defendant, that the meeting of 1st July is also of relevance to the so-called “rectification plan”. The court orders discovery of any documentation, including but not limited to any briefing notes and/or briefing packages that were provided to any or all of Mr Bruce Brda, Mr Brian Grewe, Mr Steve McCaffery, Mr Graham Bolton and/or Mr Eric Pradler and which pertains to any course of remedial actions that was agreed between the parties at any time during June 2010, whether such course of remedial actions, if any, is described by or known to the defendant as “the rectification plan” or by any other name or description. The court orders discovery of any documentation, including but not limited to any briefing notes and/or briefing packages that were provided by the defendant to MCC in relation to the meeting of in or around 1st July, 2010, as mentioned in Category IV.(iii) (bis) and referred to above, together with any such notes and/or minutes as referred to above.

CATEGORY V

UNTITLED

? Category V.(i). Documents created during the period from 1st September, 2010 - 30th November, 2010 that evidence and/or record any representation made by the Defendant, its servants or agents:

a. That the Defendant was committed to addressing the financial loss of the Plaintiffs either on its own and/or in connection with NSN [Nokia Solutions and Networks UK Limited] and/or that NSN had been aware of the Plaintiff’s loss.

b. That NSN were fully aware of the technical problems and delays both historical and then existing.

c. That the Defendant had discussed proposals to address the Plaintiff’s loss with NSN.

d. That the Defendant had engaged with NSN to address the Plaintiff’s financial loss prior to October 2010.

The defendant agrees to this category of discovery subject to its being limited to the period from 1st September, 2010 to 31st October, 2010. However, the plaintiffs have pointed to certain relevant correspondence that they know to have transpired in November 2010. Consequently the court orders discovery of the above category of documents for the period 1st September 2010 to 30th November 2010 (inclusive).

? Category V(ii). Documents and in particular briefing notes and/or briefing packages provided to or by Bruce Brda, Brian Grewe, Ali Amer and/or Graham Bolton or any of them, in relation to a meeting held in Dublin in or around 23rd September, 2010, also attended by Sean Bolger and Derek Kickham of the Plaintiffs, together with any notes or minutes in respect thereof.

? Category V(iii). Documents and in particular briefing notes and/or briefing packages provided to or by Bruce Brda, Brian Grewe, Ali Amer and/or Graham Bolton or any of them, in relation to a meeting held in Chicago in or around 19th October, 2010, also attended by Sean Bolger, Brian O’Donohoe and Derek Kickham of the Plaintiffs, together with any notes or minutes in respect thereof.

These categories of discovery have been agreed between the parties and require no consideration by the court.

CATEGORY 2

NSN (NOKIA SOLUTIONS AND NETWORKS)

? Category2(i). Documents created during the period 1st June 2010 - 31st October 2010 that evidence and/or record the obligations and/or liabilities of the Defendant to the Plaintiffs or any of them and/or any proposals, made or to be made by the Defendant and/or by NSN in respect of:

a. The roll-out of the Network

b. Any technical problems with the Network

c. Any financial measures that would be to the benefit of the Plaintiffs or any of them

? Category 2(ii). Documents passing between the Defendant and NSN during the period from 1st June 2010 - 23rd December 2010 together with any notes, memoranda, minutes reports or records of any nature that pertain to any difficulties and/or problems associated with the roll-out of the WiMAX Network by the Defendant.

? Category 2(iii). Documents prepared and/or received by Bruce Brda, Ali Amer, Brian Grewe and/or servants or agents of NSN which evidence and/or record

a. A meeting in Chicago held in October 2010 at which a presentation was made by Bruce Brda, Brian Grewe, and Graham Bolton.

b. The approval of NSN of the contents of the presentation referred to at a. above.

The defendant claims that each of the above categories is too broad and not specific enough. As regards specificity, the court does not accept this contention: there is a specified time period that is justifiable by reference to the timeframe of the dispute arising; the nature of the documents and what they concern is clearly identified; and their relevance in the context of a dispute concerning the roll-out of the network is apparent. In one respect only, the court considers that the category of documentation sought is too broad. Thus in the context of Category 2(i), it is clear that items a. and b. are relevant to the roll-out of the network and so the dispute at hand and thus their production is necessary. However, Item c. does not appear to be of relevance in this regard. Consequently the court orders the discovery of all of the above categories of documentation except Category 2(i).c.

CATEGORY 3

BUSINESS PLANS

? Category 3(i). Documents that evidence and/or record any consideration given to the Business Plans or any of them by the Defendant MCC and/or Motorola Inc., including by any relevant credit committee or similar body with the responsibility for the consideration of the provision of credit, during the period 1st November 2008 - 30th April 2010 to all or any of the following:

a. The rate of Network roll-out as provided for in any of the Business Plans as referred to herein.

b. The projected revenues at different times as contained in the Business Plans or any of them.

c. The importance of the projected revenues contained within any of the Business Plans to the ability of the Plaintiffs (or any of them) to make payments to the defendant

d. The importance of the projected revenues maintained within any of the Business Plans to the ability of the Plaintiffs (or any of them) to make repayments to MCC pursuant to the terms of the Equipment finance agreement.

e. The delivery of a Network to the technical standard as contained within the Defendant’s tender and/or the MSA.

Following pre-hearing discussion between the parties, the plaintiffs indicated that they would agree to discovery of (a) all documents created in the period from 1st December, 2008 to 3rd December, 2009 evidencing and/or recording any consideration given by the defendant, its servants or agents, by MCC and/or Motorola Inc. to the draft, first and/or second business plans, (b) all documents created in the period 1st January, 2010 to 31st May, 2010 evidencing and/or recording any consideration given by the defendant, its servants or agents, MCC and/or Motorola Inc. to the third business plan, (c) all documents created in the period 1st December, 2008 to 13th October, 2009, evidencing or recording the consideration given by the defendant, its servants or agents to the payment provisions in the MSA. The only issues that now appear to arise between the parties in this regard are (1) the starting-time for discovery of category (a), with the defendant seeking a start-date of 1st August, 2009, and the plaintiffs seeking 1st December, 2008, and (2) a claim by the defendant that category (c) should be refused as it is a new category of discovery. With regard to (1), there is a rational basis for the earlier date as it extends to the period of the draft and first business plans. With regard to (2), although this appears ostensibly to be a new category of discovery, it is in fact a compromise suggestion formulated within the context of the requested categories of discovery and done in the context of those reasonable pre-hearing discussions between opposing parties that are part and parcel of applications for discovery. The court orders the discovery of (a) all documents created in the period from 1st December, 2008 to 3rd December, 2009, evidencing and/or recording any consideration given by the defendant, its servants or agents, by MCC and/or Motorola Inc. to the draft, first and/or second business plans, (b) all documents created in the period 1st January, 2010 to 31st May, 2010 evidencing and/or recording any consideration given by the defendant, its servants or agents, MCC and/or Motorola Inc. to the third business plan, (c) all documents created in the period 1st December 2008 to 13th October, 2009 evidencing or recording the consideration given by the defendant, its servants or agents to the payment provisions in the MSA.

? Category 3(ii). Documents created during the period from 1st January, 2010 - 31st March, 2010 by the Defendant MCC and/or Motorola Inc. that evidence and/or record any consideration of the following matters complained of by the Plaintiffs (or any of them).

a. The Defendant’s failure to deliver the WiMAX solution to the standard, specification and performance as tendered and contended for.

b. the failure of the Defendant to meet delivery deadlines and timeframes.

c. the awareness of technical problems which existed at that time.

The defendant has offered to make available documents created during the period 1st January, 2010 to 31st March, 2010, evidencing the knowledge of the defendant, its servants or agents of complaints made by the plaintiffs during the period 1st January, 2010 to 31st March, 2010, that the defendants failed to deliver the WiMAX solution to the standard and specification contracted for (including failure to meet delivery deadlines and timeframes). The court can see no rational basis on which the category of documentation sought should be constrained by reference solely to complaints made by the plaintiffs; this would potentially exclude documentation that would appear relevant and necessary, and the discovery of which is proportionate. Consequently the court orders discovery of the above category of documentation as sought.

? Category 3(iii). Documents provided to and/or sent by senior management in the Defendant and/or in MCC, including but not being limited to

a. Bruce Brda

b. Joe Cozzolino

c. Steve McCaffery

d. Eric Pradler

e. Brian Grewe

f. Gary Talje

g. Dave Klieforth

and/or passing between senior management and any of the following persons

a. Gerard Grady

b. Neil Phimister

c. Richard Lewis

d. Catherine Brennan

e. Graham Bolton

f. John Flynn

which concern, relate to and /or informed the decision to amend the MSA in April 2010 by deferring the 10% down payment required thereunder and/or the decision to amend the repayment schedule under the EFA [Equipment Financing Agreement] in May 2010 between the period from 1st February, 2010 to 31st May, 2010.

The defendant has offered discovery of all documents created in the period from 1st February, 2010 to 31st May, 2010, which concern, relate to and/or informed the defendant’s decision to amend the MSA in April 2010 by deferring the 10% down-payment required thereunder and/or insofar as such documents are in its ‘possession’, the decision of MCC to amend the repayment schedule under the EFA in May 2010. The plaintiffs are satisfied with this offer provided that discovery is made of such documents as are in the ‘possession, power or procurement’ of the defendant. The court notes the reference in the request to documents that “relate to”, a formulation that, if applied, would, in the court’s opinion render discovery of this category of documentation oppressive. The court therefore orders the discovery of all documents created in the period from 1st February 2010 to 31st May 2010 which concern and/or informed the defendant’s decision to amend the MSA in April 2010 by deferring the 10% down-payment required thereunder and/or insofar as such documents are in its possession, power or procurement, the decision of MCC to amend the repayment schedule under the EFA in May 2010.

CATEGORY 3 (BIS)

MOTOROLA CREDIT CORPORATION

? Category 3(i) bis. Documents that evidence and/or record any assessment or evaluation of the Second Business Plan carried out by MCC prior to the execution of the EFA on the 3rd December 2009 and/or its involvement in the discussions leading to the conclusion of the MSA on the 13th October 2009 to include, but not being limited to:

a. Documents passing between the Defendant, Motorola Inc. and/or MCC concerning the provision of finance facilities as part of the tender;

b. Communications of any nature passing between the Defendant and MCC regarding the payment provisions in the MSA and in particular clauses 4 and 28 thereof.

? Category 3(ii) bis. Documents that evidence and/or record the knowledge and/or agreement of the Defendant and/or its knowledge of MCC’s agreement to the implementation of the Second Business Plan by the utilisation of the companies in the Imagine Group as provided for in the side letter to the EFA dated 3rd December 2009.

These categories of documentation are relevant and necessary to the plaintiffs’ claim for losses and/or to the claim of estoppel made by the plaintiff (the claim being that the defendant is estopped from denying that the plaintiffs are entitled to rely upon the acts and/or omissions of MCC, as pleaded in the statement of claim). The defendant maintains that this category of discovery is not necessary and duplicates information that is being provided under Category 3 (non-bis) above. It is difficult to see that there is much, if any, duplication. The court has already addressed the issue of necessity. The court therefore orders discovery of the above category of documentation.

CATEGORY 4

CORPORATE STRUCTURE/SINGLE ECONOMIC ENTITY

? Category 4(i). Documents that evidence or record:

a. The knowledge of the Defendant as to the corporate structure of the Imagine Group of Companies during the period from the 1st August 2008 to the 31st October 2010;

b. The Defendant’s knowledge and/or awareness that the profits, losses and/or liabilities that may arise from the WiMAX Network would be losses, profits and/or liabilities of the First Plaintiff, the Second Plaintiff and/or the Third Plaintiff (all or any of them) during the period from the 1st August 2008 to the 31st March 2011.

The plaintiffs have pleaded and particularised their claim that the defendant was at all material times aware of the corporate structure of the Imagine Group. The plaintiffs are seeking discovery of the above category of documentation so as to enable them to counter the defendant’s defence regarding the corporate structure of the Imagine Group (whereby the defendant is seeking to defeat each claim made against it on the basis that the entity within the Imagine Group that would have suffered the loss has no valid claim against the defendant to recover that loss). If, as the plaintiffs contend, the defendant was at all times aware of the corporate structure of the Imagine Group, the documents that evidence this are both relevant and necessary to many of the matters in issue between these parties. The defendant maintains that this category of discovery is not necessary and duplicates information that is being provided under Category 3 above. It is difficult to see that there is much, if any, such duplication; the court has already addressed the issue of necessity. The court therefore orders discovery of the above category of documentation.

? Category 4(ii). Documents that evidence or record the knowledge of the Defendant that any or all of the following agreements were negotiated by the Third named Plaintiff.

a) Heads of Agreement

b) Test Agreement

c) PSA

d) Master Services Agreement

e) Novation Agreement

f) Equipment Financing Agreement

g) The collateral contract as contended for by the Plaintiffs in the Statement of Claim and any amendments, variations or supplements thereto;

h) Amendment to the Master Agreement;

i) Amendment to the Equipment Financing Agreement

This category of discovery is relevant to the defendant’s knowledge of the companies in the Imagine Group. The plaintiffs have pleaded and particularised their claim that the defendant was at all material times aware of the corporate structure of the Imagine Group. The plaintiffs are seeking discovery of the above category of documentation so as to enable them to counter the defendant’s defence regarding the corporate structure of the Imagine Group (whereby the defendant is seeking to defeat each claim made against it on the basis that the entity that would have suffered the loss has no valid claim against the defendant to recover that loss). If, as the plaintiffs contend, the defendant was at all times aware of the corporate structure of the Imagine Group, documents that evidence this are both relevant and necessary to many of the matters in issue between these parties. The defendant has rejected discovery of the above documentation on the basis that the claim to which this ground relates is an alternative plea and that only a primary plea can be the subject of a discovery request. This ground of objection is unappealing in logic and no supporting precedent has been offered to the court. The court therefore does not accept this ground of objection as valid. The court orders discovery of the above category of documentation.

CATEGORY 5

DOCUMENTS EVIDENCING THE TECHNICAL STATUS OF THE NETWORK

? Category 5(i). Documents that evidence and/or record the consideration (if any) given by the Defendant to the matters detailed in the following project performance assessments:

a. “Motorola Project Assessment 24-02-10

b. “Motorola Project Performance Assessment 09-06-10.doc”

c. “Motorola Project Performance Assessment”

This category of discovery has been agreed between the parties and requires no consideration by the court.

? Categories 5(ii) and (iii) not being pursued.

? Category 5(iv). Documents that evidence and/or record reports and audits carried out between February 2010 and July 2011 by the Defendant in relation to:

a. Throughput capacity, and/or packet loss in the WiMAX Network;

b. The performance and stability of the 10MHz configuration across all platforms including base stations and CPE;

c. CPE performance (including firmware)

d. Network stability and/or performance

e. End to end Network performance and testing

f. Quality assurance

g. Security

h. Variations as to the agreed design

i. Project resources

j. Radio Planning Services

k. Issues identified by Motorola as being the cause of delays to the rollout of sites

l. Failure of equipment provided by the Defendant to the Plaintiffs from 5th May, 2009 to 31st December, 2010

m. The closure of the project between May 2011 and September 2011

The dispute arising between the parties regarding this category of dispute concerns the limitation of discovery to audit reports and a temporal constraint that would exclude certain audits or reports known to have been done in or around July 2011. Anyone familiar with the internal workings of a large corporation will know that they produce a mass of internal reports other than audit reports and that regard to audit reports only could and likely would result in a significant amount of relevant and necessary documentation not being discovered. Having regard to this fact and the known audits or reports that were done in or around July 2011 the court orders discovery of the above category of documentation.

? Category 5(v). Documents that evidence and/or record technical and/or operational problems relating to any of the following:

a. Failures and delay experienced during the upgrade to 10MHz;

b. Failures and delays experienced in the upgrade to WiMAX 3.1 and 4.0;

c. Failures and delays experienced in relation to the upgrade from 5 to 10MHz configuration;

d. Software upgrades to the core Network including Redback AAA, EMS, and SAG;

e. Failure to complete the upgrade of the core Network to the agreed decision for Phase 1b as per Contract schedule and LLD;

f. The complete review of Phase 1b design during August to September 2010 resulting in revised LLD and architecture for Phase 1b;

g. Variance in the implementation of Phase 1b from the original HLD and LLD;

h. Variance in the design and implementation of Phase 1b from Motorola standards and best practice.

The only disputes arising regarding this category of discovery are the appropriate timeframe for discovery and the defendant’s proposed exclusion of category h. The defendant has proposed a timeframe of 1st February 2010 to 17th February 2011. However, deemed acceptance of Phase 1b, 1 and 2 clusters and sites was not possible until September 2011. The court therefore considers that the plaintiffs’ proposed end-date of 17th September 2011 makes more sense having regard to the facts arising. It appears also to the court that in a case in which negligence is alleged any, if any, deviation by Motorola from its own standards and from such standards as are suggested by best practice is a relevant issue. Consequently the court orders discovery of the above category of documentation.

? Category 5(vi). Documents that evidence and /or record the knowledge and/or awareness of the Defendant at any time up to December 2009 regarding any Equipment, Software or Configuration problems identified by it or experienced in the Network and/or the roll-out by the Defendant of (i) the Axtel project in Mexico and (ii) the Mena Telecom project in Bahrain or any other deployment and/or any evaluation of the Defendant’s WiMAX solution, that pertains to any matter complained of by the Plaintiffs in the within proceedings and which were not made known to the Plaintiffs (or any of them) prior to 13th October, 2009.

The defendant has criticised this category as requiring global discovery of every ‘problem’ existing anywhere in the world regarding the defendant’s operations. The plaintiffs have indicated a willingness to limit the scope of the request to problems identified by the defendant or experienced by it in the roll-out of (a) the Axtel Project (Mexico), (b) the Clearwire Project (USA) and (c) the Mena Telecom Project (Bahrain), and pertaining in each case to the issues of throughput, capacity CPE, and/or performance. It is clearly of relevance to the case brought by the plaintiffs that the defendant may have encountered in other projects similar issues as are alleged to have arisen in its dealings with the plaintiffs. The proposal formulated by the plaintiffs appears to the court to be a sensible means of constraining the discovery exercise by limiting it to named projects of relevance and only as regards particular issues that are alleged to present, and hence are clearly of relevance, in the instant case. It may seem exotic that the three projects are in three different countries but in truth they are just projects like any other, save that they happen to be completed in different jurisdictions. The court therefore orders discovery of documents that evidence and /or record the knowledge and/or awareness of the defendant at any time up to December 2009 of problems identified or experienced by it in the roll-out of (a) the Axtel Project (Mexico), (b) the Clearwire Project (USA) and (c) the Mena Telecom Project (Bahrain), the reference to ‘problems’ being intended to refer in each case to any issues concerning throughput, capacity CPE, and/or performance that are akin to those which the plaintiffs allege to have arisen in their dealings with the defendant.

? No Category 5(vii).

? Category 5(viii). All documents created by John Flynn and which relate to the delays in the rollout of the Network, technical problems, Project resources and project Delivery which were provided to the Defendant in the period 3rd December, 2009 to 23rd December, 2010.

? Category 5(ix). Records of all conference calls and the matters discussed or to be discussed thereon involving Brian Grewe and held in connection with the project between February 2010 and October 2010 and minutes of these calls.

These categories of discovery have been agreed between the parties and require no consideration by the court.

? Category 5(x). Documents that evidence and record correspondence with third party product or equipment providers, evidencing any problems utilised in the Network.

? Category 5(xi). Documents that evidence and/or record the discontinuing of any third party equipment or product used by the Defendants in its WiMAX solution and already deployed in the Network provided to the Plaintiffs.

The defendant has rejected these categories of discovery on grounds of relevance and because of a failure to identify the equipment to which the requested documents are to pertain. As to relevance, it seems to the court, with regard to category 5(x), that correspondence with third parties concerning such problems as are alleged to have arisen is relevant and necessary, and, with regard to category 5(xi), that such documentation is relevant and necessary provided the reasons for any such discontinuation are of relevance to the issues arising in the dispute between the parties. The court agrees with the defendant that each category of documentation needs to be constrained in its ambit to equipment that has been expressly identified. The court therefore orders (a) discovery of Category 5(x), subject to the plaintiffs identifying specified equipment to which the documentation must relate, and (b) discovery of Category 5(xi), subject to the reasons for any such discontinuation being of relevance to the issues arising in the dispute between the parties.

? Category 5(xii). All documents created during the period from 1st December, 2010 to 30th September, 2011:

(a) recording the deeming of Final Acceptance of sites, clusters and/or Phase 1b; and

(b) recording the decision to ‘undeem’ Final acceptance of sites, clusters and/or Phase 1b.

This category of discovery has been agreed between the parties and requires no consideration by the court.

? Category 5(xiii). Documents that evidence and/or record the introduction of “Throughput or Capacity” as a CPE feature, why this feature was introduced, the purpose and benefit of this feature, when it was commercially released, and all release notes and product feature descriptions explaining the purpose and benefit to customers.

There appears to be a measure of agreement regarding this category of discovery. The plaintiffs seek discovery relating to the period commencing 1st December, 2008. The defendant has offered discovery of all documents created in the period 1st September, 2009 to 30th April, 2010, relating to the issue of throughput or capacity made of CPE in respect of the WiMAX solution proposed for the plaintiffs. The plaintiff is satisfied with this proposal provided that (a) the start-date for discovery is 1st December, 2008 and (b) the documentation to be released extends to the documentation contemplated in a letter of 19th June, 2014, from the plaintiffs to the defendant. The point in time when throughput or capacity was introduced as a CPE feature is important as it has a direct bearing on what was tendered for by the defendant and what was contracted to be delivered under the MSA. The operation of a throughput or capacity mode allegedly restricted the throughput and capacity of the network tendered and contracted for by the defendant. The awareness of the defendant of throughput and/or capacity restrictions from the time it was, to use the plaintiffs’ terminology, ‘selected as the preferred bidder’ in March 2009 is of importance to the plaintiffs’ claim. It is reasonable to conclude that the documentation that immediately preceded the selection phase may be of relevance. Consequently the court orders discovery of this category of documentation sought, subject to the temporal constraint that it was drafted, created or issued between 1st December, 2008, and 30th April, 2010.

? Category 5(xiv). Documents that evidence and/or record communications between Motorola’s Network Product management and Motorola’s CPE Product management in relation to the Throughput or Capacity mode feature, including but not limited to the following persons, Fred Gabbard, Fred Wright, Randi Cox and Chuck Riddle or any of them.

? Category 5(xv). Documents that evidence and/or record the Defendant’s awareness of throughput, capacity and/or processing restrictions or limitations of any of the equipment or software in a four sector 10MHz configuration specified in the Tender and/or provided to the Plaintiffs.

The plaintiffs have indicated that they are satisfied for discovery of the above categories of documentation not to be sought provided they are successful in their application for discovery of Category 5(xiii). The court therefore understands that discovery of the above categories of documentation is no longer being sought.

? Category 5(xvi). Documents that evidence and/or record the awareness of senior Motorola Product Management and Senior Motorola executives of any Capacity, throughput or processing restrictions or limitations in the Network provided to the Plaintiffs including, but not limited to Fred Gabbard and Fred Wright.

This category of discovery relates to the knowledge of the defendant of throughput, capacity and/or processing restrictions or limitations at material times. As mentioned above, the point in time when throughput or capacity was introduced as a CPE feature is vitally important in time as it has a direct bearing on what was tendered for by the defendant and what was contracted to be delivered under the MSA. The awareness of the defendant of throughput and/or capacity restrictions or limitations is of importance to the plaintiffs’ claim. The court therefore orders discovery of the documentation sought, subject to the plaintiffs identifying in greater detail the particular management or class/level of management to whom they mean to refer; as drafted, this category of documentation appears overly broad as regards the management/executives to which the plaintiffs mean to refer.

? Category 5(xvii). Documents that evidence and/or record the commercial release of the WiMAX 3 and WiMAX 4 upgrade software, provided to the Plaintiffs and compliance with the WiMAX Forum Certification.

? Category 5(xviii). Documents that evidence and/or record the awareness of any problems with the release of WiMAX 3 and WiMAX 4 upgrade in relation to features and the impact if any on Throughput, Capacity and processing restrictions or limitations.

The plaintiffs indicated to the defendant, prior to the hearing of the within application, that they were not minded to pursue either of these categories provided they were granted what was sought in terms of the applicable time period for Category 5(v)(b). As the court has ordered what the defendant is seeking in terms of Category 5(v)(b), the court understands that neither of these categories of discovery is now being sought by the plaintiffs.

? Category 5(xix). Documents that evidence and/or record briefings as between representatives of the Defendants pre-sales group and the services organisation in relation to the throughput demonstrated during the Pilot and the inclusion of the requirement to meet the 8MB throughput in the ATP [Acceptance Test Plan] in the MSA, including but not limited to the following people, Joe Cozzolino, Kenny Steele, Andy McKinnon, Eric Pradler, Jose Amedius or any of them.

The plaintiffs contend that this category of discovery is relevant and necessary to the internal workings of the defendant, the allocation of responsibility therein for the WiMAX project and the knowledge within the defendant at material times of its ability or otherwise to meet the performance requirements of the MSA. The defendant has contended that no reasons have been offered for this category of documentation and has also raised the Fraud Argument as a basis for refusing this category of discovery. The plaintiffs have now indicated why they consider this category of discovery to be relevant and necessary and have acknowledged that no claim as to fraud is being made. The court accepts the rationale offered as to why discovery of the documentation is relevant and necessary and so orders discovery of this category of documentation.

CATEGORY 6

PLAINTIFFS’ FINANCIAL STATUS

? Documents which evidence the plea that the Plaintiffs financial status contributed to and/or caused its loss.

This category of discovery has been agreed between the parties and requires no consideration by the court.

THERE IS NO CATEGORY 7

CATEGORY 8

CONTRACTUAL TIMELINE

? Category 8(i). Documents that evidence and/or record:

a. That during the tender phase (namely 1st August, 2008 - 13th October, 2009) that it was intended and/or that the Defendant understood, that the Network was to be rolled out in accordance with a specific timeframe (or timeframes);

b. The agreement of the Defendant to the delivery of the Network or any constituent parts thereof within a specified timeframe (or timeframes);

c. That the Defendant operated in accordance with an agreed timeline requiring that the Network be rolled out within a specified timeframe, whether through the use of a specific roll out schedule (or schedules) including the roll out schedule at Schedule 5 or 6 of the MSA and/or a project plan (or plans) including the Project Plan at schedule 3 to the MSA;

d. Any delays experienced by specific reference to the failure to meet a project plan and/or roll out schedule.

This category of discovery is directed to documents that evidence and/or record that the defendant understood and agreed that the network was to be rolled out in accordance with an agreed timeframe, that it was in fact rolled out in accordance with an agreed timeframe and that record delays experienced by reference to project plans and/or any roll-out schedule. Despite assertions to the contrary, it is clear that the plaintiffs have not abandoned their claim that there was an agreed contractual timeline. It is in any event an issue that was previously fixed by the court as an issue falling for determination at the hearing of the action. In essence, the defendant denies that there existed any contractual timeline for the roll-out of the network or that there was any contractually stipulated roll-out schedule. This is a factor of some significance to the plaintiffs’ claim for loss in the proceedings. The court therefore orders discovery of the documentation sought.

? There is no Category 8(ii).

? Category 8(iii). All documents created during the period 1st March, 2010 to 30th April, 2010, that evidence or record the circumstances whereby the Defendant and the First named Plaintiff/the Plaintiffs agreed to create a “bin” (inventory) of equipment on the part of the Defendant and a “bin” (inventory) of sites on the part of the First named Plaintiff/Plaintiffs.

This category of discovery has been agreed between the parties and requires no consideration by the court.

? Category 8(iv). Documents that evidence and/or record the timelines imposed on third party contractors by the Defendant, to include but not being limited to the following parties:

KN Networks Limited

Spectrum Limited

Obelisk Limited

Sigma Limited

The defendant has declined to make discovery of Category (iv) for the same reasons as were raised regarding Category 8(i). This category of documentation is directed to documents that evidence and/or record any timelines imposed on the defendant on third-party contractors. Discovery of such documentation, it is claimed, will assist the plaintiffs in establishing whether or not, in its dealings with third party contractors, the defendant was working to any particular timelines and, if so, what the relevant timelines were. The establishment of these facts, it is claimed may assist the plaintiffs in undermining the defence of the defendant that there was no contractually stipulated timeline for the roll-out of the WiMAX Network. The court is satisfied that discovery of this category of documentation is relevant and necessary and so orders discovery of same.

CATEGORY 9

THIRD PARTY COSTS

? Category 9(i). All documents evidencing or recording the alleged agreement that all third party costs relating to the roll-out of the Network would be disclosed and that a margin of 15% and no more than 20% would be applied to such costs.

? Category 9(ii). There is no Category 9(ii).

? Category 9(iii). Documents created in the period 14th May 2010 to 23rd December 2010 that evidence and/or record the response of the Defendant to any complaints of the Plaintiffs (or any of them) regarding the issue of overcharging by the Defendant in respect of third party costs.

? Category 9(iv). There is no Category 9(iv).

? Category 9(v). Documents that record the prices charged by third party contractors to the Defendant for equipment and services related to the project.

These categories of discovery have been agreed between the parties and require no consideration by the court.

CATEGORY 10

RELIANCE

? Category 10(i). There is no Category 10(i).

? Category 10(ii). There is no Category 10(ii).

? Category 10(iii). Documents which evidence or record:

a. That the Plaintiffs were aware of the problems affecting CPE and of which they complain prior to the execution of the MSA and EFA.

b. That the Plaintiffs placed Purchase Orders with the Defendant at a time when the problems with CPE throughput and capacity were either known to it or had been resolved by the Defendant.

? Category 10(iv). Documents which evidence or record that the First and/or Second Plaintiffs caused and/or contributed to any delay in the roll out of the Network and the problems with the Network.

? Category 10(v). Documents which evidence and/or record that:

a. The Plaintiffs lacked an appropriate inventory of sites to facilitate an accelerated roll out schedule.

b. The Plaintiffs were responsible for any failure to ensure that the Network was of sufficient scale and constructed within a particular timeframe.

? Category 10(vi). Documents which evidence or record that the First Plaintiff failed to employ an adequate transport and core Network and failed to expeditiously remedy problems with its transport and core Network.

Documents which evidence and/or record that the decision to roll out the Network in Dublin instead of rural areas caused or contributed to delays.

These categories of discovery have been agreed between the parties and require no consideration by the court.

APPENDIX B

DOCUMENTS TO BE DISCOVERED

PURSUANT TO DEFENDANT’S APPLICATION

The numeration and category descriptions used in this appendix are those employed in the documentation furnished to the court.

Discovery sought from IBB Internet Services Limited and Irish Broadband Internet Services Limited (trading as Imagine Networks)

? Category 1

a) All documents evidencing, recording or relating to the claim in the reply that Clause 65 of the MSA is not fair or reasonable.

The court considers that this category of discovery is unduly wide. It is unlimited in time. It is directed not only to documents that evidence that clause 65 was unfair or unreasonable but to all documents “relating to” that claim. To allow such latitude in terms of timing and breadth of discovery would be oppressive. For the foregoing reasons the court declines to order discovery of this category of documentation.

b) All documents upon which the Plaintiffs rely in support of the claim in the Reply that the agreement referred to in Paragraph No. 37 of the amended Statement of Claim is evidenced in writing.

The court considers that this category of documentation is relevant and its production necessary to enable the defendant properly to construct its defence. The court therefore orders the production of this category of documentation.

? Category 2

c) All documents evidencing, recording or relating to the alleged undertaking of the Defendant to address the alleged financial loss caused by delays in meeting the alleged roll-out schedule.

This category of discovery has been agreed between the parties and requires no consideration by the court.

? Category 3

a) All documents evidencing, recording or relating to the alleged Collateral Agreement including - but not limited to - the alleged agreement between the Defendant and the Third Plaintiff on foot of which the Third Plaintiff pleads that it “would have the protection and ability to ensure that the Defendant would have to meet the design specifications and performance of the solution tendered for in addition to the existing terms of the MSA”.

The court considers that, as sought, this category of discovery is unduly wide in that it is directed not only to documents that evidence or record the alleged Collateral Agreement but to documents “relating to” same. To allow such latitude of discovery would be oppressive. Also, there is no temporal constraint which again appears to the court to render unduly wide the category of discovery sought. However, by reference to the pleadings the court is satisfied to order discovery of all documents created during the period 23rd November, 2009 (a date of commencement identified by the plaintiffs) to 6th July, 2011 (the date of strike-out of the second statement of claim) and which evidence and/or record the alleged Collateral Agreement, including but not limited to the alleged agreement between the defendant and the third-named plaintiff on foot of which the third-named plaintiff pleads that it “would have the protection and ability to ensure that the defendant would have to meet the design specifications and performance of the solution tendered for in addition to the existing terms of the MSA”.

? Category 4

a) All internal documents created between 13th October, 2009 and 6th July 2011 evidencing, recording or relating to the conclusion of the Collateral Agreement, and the representations and their effect upon the MSA.

The Collateral Agreement is alleged by the plaintiffs to have been entered into between the defendant and the third plaintiff while the MSA continued in existence. It is alleged to be a free-standing agreement existing alongside the MSA and incorporating terms from it. Its existence would represent a significant alteration to the contractual landscape between the parties and one might reasonably expect that its creation would have been the subject of some documentation within the plaintiffs’ organisation. However, the court considers that this category of discovery, as sought, is unduly wide in that it is directed not only to documents that evidence or record the conclusion of the Collateral Agreement, etc., but to documents “relating to” same. To allow such latitude of discovery would be oppressive. The plaintiffs have offered to make available all such documents as are sought and which passed between the plaintiffs and their legal or financial advisers. However, much of this documentation would likely be privileged and confining the documentation to the class of documentation offered seems unduly narrow; there is no obvious rationale why the documents offered are relevant but the documents sought (subject to the constraint identified by the court as regards “relating to”) are not also relevant. The court therefore orders discovery of (a) (given that this was offered by the plaintiffs) all documents created between 13th October, 2009 and 6th July, 2011, that passed between the plaintiffs and their legal and/or financial advisers and which evidence, record or relate to the conclusion of the Collateral Agreement, and the representations and their effect upon the MSA; and (b) to the extent not caught by (a), all internal documents created between 13th October, 2009 and 6th July, 2011, that evidence and/or record the conclusion of the Collateral Agreement, and the representations and their effect upon the MSA.

? Category 5

d) All documents evidencing, recording or relating to:-

1. Negotiations between the Plaintiffs and MCC in relation to the EFA dated 3rd December, 2009, and the Side Letter thereto.

4. The negotiation of the April Amendment Agreement executed by the First Plaintiff on 29th April, 2010.

5. Negotiations between the Plaintiffs and MCC in relation to the amendment of the EFA, which amendment was executed in May 2010.

Category 5.d).4 has been agreed between the parties and requires no consideration by the court. This and the remaining sub-categories of discovery are concerned with who the EFA was concluded with. With regard to the documents in Categories 5.d).1 and 5, the plaintiffs have offered to make discovery of all documents evidencing the identity of the plaintiff that was negotiating with MCC in relation to the EFA, the side letter thereto and an amendment to same in May, 2010. Any such documentation is clearly relevant to the issue of who the EFA was concluded with. Greater latitude in this regard, the court considers, would be oppressive. With regard to 5.d).1 and 5, the court therefore orders discovery of all documents evidencing the identity of the plaintiff that was negotiating with MCC in relation to the EFA, the side letter thereto and the amendment to same in May, 2010.

? Category 6

a) All documents evidencing, recording or relating to the Defendant’s alleged knowledge or agreement that the Second Plaintiff might act as a wholesale company and leave or transfer customer and retail costs to the Third Plaintiff or any other company under the control of the Third Plaintiff.

b) All documents evidencing, recording or relating to the Defendant’s alleged knowledge or agreement that the Second Plaintiff might choose to implement its Business Plan using other companies in the Group, or by acting as a wholesale company leaving or transferring customers and retail costs to the Third Plaintiff, or any other company under the Control of the Third Plaintiff.

c) All documents evidencing, recording or relating to the alleged agreement between the First Plaintiff and/or the Second Plaintiff and the Defendant that those Plaintiffs could implement their Business Plan through utilisation of other companies in the Group by leaving earned revenues with other companies in the Group.

d) All documents evidencing, recording or relating to the agreement between the First Plaintiff and/or the Second Plaintiff and the Defendant that only a nominal amount per customer per month would be accounted for by other retail companies in the Group.

The above sub-categories of discovery are without limitation in time and wide in scope. The relevance of the documents sought has not been disputed by the plaintiffs. However, every document that issued to the defendant from the plaintiffs (or any of them) has the potential to “relate to” the defendant’s knowledge or agreement to the matters in question. Moreover, the extent of discovery sought is to some extent surprising as it will of course fall to the plaintiffs to prove the fact and terms of the agreement in question and to prove the defendant’s knowledge insofar as it is alleged that it was aware of various matters at particular times. Given the unquestioned relevance of the categories sought versus the oppressive latitude in which the request for same is formulated, the court orders discovery of all documents that are internal to the plaintiffs, that are not otherwise available to the defendant and that evidence and/or record a). the defendant’s alleged knowledge or agreement that the second-named plaintiff might act as a wholesale company and leave or transfer customer and retail costs to the third-named plaintiff or any other company under the control of the third-named plaintiff, b). the defendant’s alleged knowledge or agreement that the second-named plaintiff might choose to implement its business plan using other companies in the group, or by acting as a wholesale company leaving or transferring customers and retail costs to the third-named plaintiff, or any other company under the control of the third-named plaintiff, c). the alleged agreement between the first-named plaintiff and/or the second-named plaintiff and the defendant that those plaintiffs could implement their business plan through utilisation of other companies in the group by leaving earned revenues with other companies in the group, or d) the agreement between the first-named plaintiff and/or the second-named plaintiff and the defendant that only a nominal amount per customer per month would be accounted for by other retail companies in the group.

? Category 7

a) All documents evidencing, recording or relating to the pleas that the Plaintiffs inter se and/or with other companies in the “Imagine Group” (“the Group”) as referred to in the Statement of Claim are as a fact a single economic entity.

The sheer breadth of this category, as sought, suffices to render it oppressive. It is also somewhat surprising given that the burden of proof in establishing this claim will fall to the plaintiffs. In an effort to bridge the gap between the parties, the plaintiffs have volunteered to make available five categories of documentation upon which they intend to rely to establish their ‘single economic entity’ claim. (These categories are identified hereafter). The plaintiffs have further undertaken to volunteer additional documentation at a later stage with their witness statements so that there is no question of the defendant being taken by surprise at the plenary hearings. Rather than refuse this entire category of discovery, as sought, on the ground that it is oppressive, the court orders discovery of (a) documents that evidence and/or record the taxation policy of the Imagine group of companies as a single economic entity for the period 1st January, 2006, to the date of this judgment; (b) all company filings of the Imagine group of companies; (c) documents that evidence and/or record the accounting of the Imagine group of companies as a single economic entity for the time period referred to in (a); (d) documents that evidence and/or record ComReg licences provided to the Imagine group of companies for the time period referred to in (a); and (e) relevant minutes or relevant extracts from minutes of the Imagine group of companies for the time period referred to in (a) that relate to the corporate structure of the Imagine group of companies. Should the plaintiffs, consistent with their offered undertaking, wish to make discovery of documents supplementary to those of which the court has ordered discovery, that is a matter for them.

? Category 8

a) All documents evidencing, recording or relating to the technical expertise and/or knowledge of the Plaintiffs in respect of the capabilities of WiMAX technology and their requirements in relation to the Network including documentation relating to the interaction of the Plaintiffs with the international WiMAX forum concerning the technical capabilities of the technology and all documentation relating to the consultancy services offered by the Plaintiffs - or any member of the Imagine Group with which the Plaintiffs claim to operate as a single economic entity - to other potential purchasers of WiMAX networks.

c) All documents evidencing, recording or relating to the negotiation of the technical standards and the agreed technical standard - including but not limited to standards relating to throughput and capacity - to which the Services and Equipment provided by the Defendant were to be supplied.

d) In the event that the Plaintiffs contend that the standard of Equipment and standard of Service provided by the Defendant are to be measured other than by reference to the 2009 Agreements and the April Amendment Agreement, all documents evidencing, recording or relating to the standard of care and/or the standard of the Equipment and Services to be provided by the Defendant against which the Plaintiffs contend that the Equipment and Services provided by the Defendant are to be measured.

e) All Project Contracts placed by the Plaintiffs or any of them with the Defendant.

f) All Purchase Orders placed by the Plaintiffs or any of them with the Defendant.

i) All Change Order Purchase Orders placed by the Plaintiffs or any of them with the Defendant.

Category 8.a). A central issue in the proceedings is the adequacy of the equipment supplied by the defendant at the request of the plaintiffs. The plaintiffs have pleaded that they relied on representations pre- and post-contract in respect of the performance of the equipment. The expertise of those to whom the alleged representations were made is relevant in assessing the reliance or otherwise placed upon any representations made by servants or agents of the defendant. The court considers that this category of discovery, as sought, is unduly wide in that it is directed not only to documents that “evidence, record…” but also to documents “relating to…” To allow such latitude of discovery would be oppressive. The court therefore orders discovery of all documentation evidencing and/or recording the technical expertise and/or knowledge of the plaintiffs in respect of the capabilities of WiMAX technology and their requirements in relation to the Network, and that relate to any consultancy services offered by the plaintiffs, or any member of the Imagine Group with which the Plaintiffs claim to operate as a single economic entity, to other potential purchasers of WiMAX networks.

Categories 8.c). and 8.d). These categories have been agreed between the parties and require no consideration by the court.

Categories 8e), f) and i). It is surprising that the plaintiffs have thus far declined to discover these documents which are clearly relevant and necessary to the case being brought. However, it is important to the efficient use of court time at the trial of the action that there be as much consensus as possible as to which orders were placed. The court therefore orders that (a) the plaintiffs discover to the defendant the documents sought in these categories, and (b) that the defendant provide to the plaintiffs lists of all project contracts, purchase orders and change purchase orders that its records indicate were placed by the plaintiffs.

? Category 9

a) All documents evidencing, recording or relating to:

(i) The identity of the sites rolled out;

(ii) The date that each individual site was ordered by the Plaintiffs from the Defendant;

(iii) The date the site was made available to the Defendant;

(iv) The date the Equipment was installed upon;

(v) The Equipment that was actually installed;

(vi) The date the Equipment was available for use by customers (whether provisionally accepted or not);

(vii) The number of sites capable of being loaded with customers after 3rd December 2010.

b) All documents evidencing, recording or relating to any sites rolled out by the Plaintiffs other than through the services of the Defendant.

With regard to Category a), the court understands that the parties will liaise further between each other as regards same. With regard to Category b), the defendant alleges that the plaintiffs rolled out sites themselves using equipment which they ordered and received from the defendant for ‘Cluster 9’. The documentation sought in this category is therefore relevant, except insofar as it makes reference to “relating to…” which the court considers would render this category of discovery, as sought, oppressive. The court therefore orders discovery of all documents evidencing and/or recording any sites rolled out by the plaintiffs other than through the services of the defendant.

? Category 10

a) All documents evidencing, recording or relating to the technical standards - including but not limited to standards relating to throughput and capacity - actually met by the Equipment and Services provided by the Defendant.

b) All documentation evidencing, recording or relating to the negotiation of the provisions of Schedule 6 and Schedule 8 of the MSA.

c) All documents evidencing, recording or relating to the “problems affecting the CPE” - as alleged in the Statement of Claim - as of:

(i) 13th October, 2009, and

(ii) 3rd December, 2009, and

(iii) April 2010

e) All documents evidencing, recording or relating to the consideration of the Plaintiffs of the certification of the acceptance of Phase 1B of the Network.

f) All Provisional Acceptance Certificates for each site, the subject matter of the proceedings (including those bearing any signature of a servant or agent of the Plaintiffs, or any signature at all).

g) All documents evidencing, recording or relating to the consideration given by the Plaintiffs to signing such Provisional Acceptance Certificates, including the consideration by the servants or agents of the Plaintiffs of the Acceptance Test Procedure.

h) All Final Acceptance Certificates for each site, the subject matter of the proceedings (including those bearing any signature of a servant or agent of the Plaintiffs, or any signature at all).

i) All documents evidencing, recording or relating to the consideration given by the Plaintiffs to signing such Final Acceptance Certificates.

j) Insofar as not captured by the foregoing, all Provisional or Final Acceptance Certificates furnished by the Defendant to the Plaintiffs and in the possession of the Plaintiffs.

k) All documents evidencing, recording or relating to any testing carried out by the Plaintiffs on the efficacy of the Equipment installed by the Defendant.

r) All documents created during the period from 1st February, 2010, to date that evidence and/or record the activities of the Plaintiff’s Site Procurement Team and consideration given by them to the capability of the Plaintiffs to procure and provide sufficient numbers of sites to meet the accelerated deployment plan.

s) All documents evidencing, recording or relating to any technical problems with the Network that persisted during the period 1st March, 2010, to 23rd December, 2010.

t) All notes and documents brought by the Plaintiffs to the daily meetings from 1st June, 2010, to 29th April, 2011.

Category 10.e) has been agreed between the parties and requires no consideration by the court. That leaves Categories a) to c), f) to k) and r) to t).

Category 10.a). This is so similar to Category 8.c), on which agreement has been arranged between the parties, that the court declines to make any order in relation to this category.

Category 10.b). The court notes again the latitude of the phrase “relating to…”, the effect of which is to make the request, as sought, oppressive. The court notes also that the plaintiffs have indicated a willingness to make discovery of all internal documents not already in the possession of the defendant that evidence and/or record the negotiation of Schedules 6 and 8 of the MSA, created during the period from 1st August, 2008 to 13th October, 2009. The limitation to internal documents is designed to avoid the necessity of isolating, reviewing and listing documentation that is already in the possession of the defendant. The court orders discovery to the defendant by the plaintiffs, of all internal documents of the plaintiffs not already in the possession of the defendant that evidence and/or record the negotiation of Schedules 6 and 8 of the MSA, created during the period from 1st August, 2008 to 13th October, 2009.

Category 10.c). A central complaint of the plaintiffs is that the problems affecting the CPE were not resolved. Discovery of the categories of documentation sought (the timeframes relating in effect to the MSA, the EFA and the April Amendment Agreement) is both relevant and necessary, save that the court notes again the latitude of the requested category of documentation, with the effect of the phrase “relating to…” being such as to render the category of documentation, as sought, oppressive. The court therefore orders discovery of all documents that evidence and/or record the “problems affecting the CPE” - as alleged in the Statement of Claim - as of (a) 13th October, 2009, (b) 3rd December 2009, and (c) April 2010.

Categories 10.f) to i). With regard to Category f), it is surprising that the plaintiffs have declined to discover these certificates which are clearly relevant and necessary to the case being brought. However, it is important to the efficient use of court time at the trial of the action that there be as much consensus as possible as to which certificates issued. The court therefore orders that (a) the plaintiffs make discovery to the defendant of the certificates that its records show to have issued, subject to the defendant previously detailing to the plaintiffs the specific sites to which the request refers, and (b) that the defendant make discovery to the plaintiffs of the certificates that its records show to have been received. With regard to categories g) to i), it follows from the reasoning applicable to Category 10.f) that the court should, and hereby does, order discovery of (a) all documents that evidence and/or record the consideration given by the plaintiffs to signing the relevant provisional acceptance certificates, including the consideration by the servants or agents of the plaintiffs of the acceptance test procedure, (b) all final acceptance certificates for each site, the subject matter of the proceedings (including those bearing any signature of a servant or agent of the plaintiffs, or any signature at all), and (c) all documents that evidence and/or record the consideration given by the plaintiffs to signing such final acceptance certificates, again subject, in the case of (b) and (c) to the defendant previously specifying to the plaintiffs the specific sites to which the request refers.

Category 10.j). The court cannot see how this category of discovery is not caught by Categories 10.f) to 10.i) and declines to make any order in respect of this Category.

Category 10.k). In its essence, this category of discovery is relevant and necessary, save that the court notes again the latitude of the phrase “relating to…”, a formulation of wording that the court considers would be oppressive if allowed. Moreover, given the wide array of equipment and testing that falls for consideration in these proceedings, it is necessary that the defendant identify with greater specificity the equipment that is the subject of its request. It is not sufficient that the defendant indicate that it means all tests on all equipment; this would include a multitude of routine operational reports and tests. The court therefore orders discovery of all documents that evidence and/or record any testing carried out by the plaintiffs on the efficacy of the equipment installed by the defendant, subject to the defendant previously identifying with greater specificity to the plaintiffs (a) the equipment that is the subject of this request, and (b) what it means by the word “efficacy”.

Category r). The defendant has contended that the plaintiffs lacked a sufficient inventory of sites. The defendant contends, however, that the documents to be discovered under this category should include documents that evidence the efforts by the plaintiffs’ site procurement team to obtain sites in sufficient number to enable the accelerated deployment plan to be met. The court does not accept this contention. Either there was, or there was not, a sufficient inventory of sites; it matters not that the plaintiffs expended every energy, or did nothing, to procure same. The plaintiffs have offered to provide documents that evidence the number of sites actually available to the plaintiff, which information will put the defendant in the position of being able to make the case that the number of such sites was, for whatever reason, inadequate. The court therefore declines to order this category of discovery but orders that the plaintiffs provide to the defendant such documents as evidence the number of sites that were actually available to the plaintiffs.

Category s). The court notes again the latitude of the phrase “relating to…” and “technical problems”. As to the latter phrase, it is, with respect, generic and could embrace almost any problem that was encountered in the course of the WiMAX project. Compounding the difficulty is that, given the multiplicity of documents that the phrase “relating to” would embrace, to make an order of discovery, as sought, would be oppressive. The court therefore orders discovery by the plaintiffs of all documents that evidence and/or record any technical problems with the Network that persisted during the period 1st March, 2010, to 23rd December, 2010, subject to the defendant previously identifying with greater specificity to the plaintiffs what it means by the term “technical problems”.

Category t). The plaintiffs have volunteered to make discovery of all documents brought by three named individuals to the specified meetings. The defendant considers this list to be too narrow. The court orders (a) the plaintiffs, to identify the persons whom their records show to have attended the meetings, (b) the defendant, to identify the persons from that list whose documents are of interest, and (c) thereafter, the plaintiffs provide discovery of all documents brought by the persons identified in (b) to the daily meetings held from 1st June, 2010 to 29th April, 2011.

? Category 11

a) All documents evidencing recording or relating to the consideration given by the Plaintiffs to

(ii) The furnishing to the Defendant of Provisional acceptance Certificates.

b) All documents evidencing recording or relating to

(ii) The furnishing to the Defendant of Final Acceptance Certificates.

The court notes again the latitude of the phrase “relating to…” and considers that to order discovery by reference to this criterion would be oppressive. The court considers that there is considerable duplication between Category 11 and Categories 10.f) to i). The court orders discovery of (a) all documents evidencing or recording the consideration given by the plaintiffs the furnishing to the defendant of Provisional acceptance Certificates, and (b) all documents evidencing recording or relating to the furnishing to the defendant of Final Acceptance Certificates, save in each instance to the extent that compliance with this order would involve a duplication of the discovery effected in respect of Categories 10.f) to i).

? Category 12

a) All documents evidencing or relating to the claim in the Reply that Clause 66 of the MSA is not fair or reasonable.

b) All documents evidencing or relating to the claim in the Reply that Clause 43 of the MSA is not fair or reasonable.

The sheer breadth of this category, as sought, suffices to render it oppressive. It effectively seeks discovery of everything that evidences or relates to an aspect of the case between the parties. In an effort to bridge the gap between the parties, the plaintiffs have volunteered to identify documents that are discovered under other categories that will be relied upon to advance the claim that clauses 43 and 66 of the MSA are not fair or reasonable. The plaintiffs have further proposed to volunteer any additional documentation on which they intend to rely in advance of the trial, so that there is no question of the defendant being taken by surprise. Rather than refuse this entire category of discovery on the ground that it is oppressive, the court orders that the plaintiffs identify any documents that are discovered under other categories that will be relied upon to advance the claim that clauses 43 and 66 of the MSA are not fair or reasonable. Should the plaintiffs, consistent with their offer, wish to make discovery of documents supplementary to those of which the court has ordered discovery, that is a matter for them.

? Category 13

a) All Board Minutes of the First or Second Plaintiffs and presentations to the Board of the First or Second Plaintiffs where the WiMAX network the subject of the proceedings was discussed in the period June, 2008 to 30th June, 2012.

b) All documents evidencing, recording or relating to consideration given by the Plaintiffs or any of them to competing tenders solicited.

d) All documents evidencing, recording or relating to:

(ii) The efforts to migrate to the WiMAX Network customers of companies in the Imagine Group.

(iii) Expressions of interest received by the First or Second Plaintiffs of potential customers to the Network and particularly identifying the named Plaintiff to whom the interest was expressed.

(iv) Customer complaints received by either the First or Second Plaintiffs.

(v) Customers who expressed interest to the First or Second Plaintiffs but who did not ultimately subscribe to the WiMAX Network.

e) All documents evidencing, recording or relating to:

(v) The restructuring of the First or Second Plaintiffs’ debt and the cost thereof.

(vi) The arrangement as between the Third Plaintiff and the Second Plaintiff in relation to the cost of debt restructuring.

(vii) The arrangement as between the Third Plaintiff and the Second Plaintiff in relation to the cost of additional interest.

f) All documents evidencing, recording or relating to:

(i) the restructuring of the First or Second Plaintiff’s debt and the cost thereof.

(ii) the cost of additional interest suffered by the First or Second Plaintiffs.

(iii) the cost of replacing the Network.

(viii) the current customer numbers accessing the network both globally and on an individual site-by-site and sector-by-sector basis and records of the numbers of customers so accessing the Network as of the first day of each calendar month for the period since 1st January, 2010.

g) All documents evidencing, recording or relating to the spending by the First or Second Plaintiffs, on advertising in respect of the WiMAX Network services offered to the public by the First or Second Plaintiffs for the period from six months prior to the execution of the MSA to date.

h) All documentation evidencing, recording or relating to the ongoing maintenance and use of the base stations supplied by the Defendant.

i) All documentation evidencing, recording or relating to any base stations in use which were not installed by the Defendant.

j) All documents evidencing, recording or relating to communications with MCC in relation to payment in respect of monies paid to the Defendant.

Categories 13.d).ii, 13.e) (v), (vi) and (vii), 13(f)(i) and (ii), and 13(g) have been agreed between the parties and require no consideration by the court.

Category 13.a). This category of documents is relevant to the dispute and their discovery necessary. The court therefore orders discovery of this category of documentation.

Category 13.b). The plaintiffs claim that certain representations were made by the defendant at the tender stage (the defendant denies that there was a formal tendering process). That the representations made by a third party in the course of the alleged tender process could be of relevance to determining whether there were misrepresentations by the defendant in the context of its tender is not accepted by the court. The court therefore declines to order discovery of this category of documentation.

Category 13.d).iii-v. With regard to Category 13.d).iii, the court considers that it would be oppressive to order discover of this category of documentation without imposing a temporal constraint; the constraint proposed by the plaintiffs in this regard and referred to hereafter appears appropriate and ensures that this category of discovery is proportionate. With regard to Category 13.d).iv, the plaintiffs have offered to make discovery subject to it being limited to the timeframe 1st February, 2010 to date. As the plaintiffs have pleaded that over the period of Christmas 2009 they received a significant number of complaints the court does not consider that the plaintiffs’ proposed timeline is appropriate. However, the court considers that it would be oppressive to order discover of this category of documentation, as sought, without imposing a temporal constraint. The court therefore orders (a) discovery by the plaintiffs of all expressions of interest received by the first or second-named plaintiffs from (a) potential customers to the network and (b) customers who did not ultimately subscribe to the network, in each case between 13th October, 2009, to the date of this judgment, with the plaintiffs to identify the named plaintiff to whom the interest was expressed, and (b) discovery of all customer complaints received by either the first or second-named plaintiffs from 1st December, 2009 to the date of this judgment.

Category 13.f).iii. Production of this category of documentation is relevant and also necessary for the fair disposal of the trial. The court therefore orders discovery of this category of documentation.

Category 13.f).viii. The plaintiffs are in receipt of income in excess of €9m per annum from the sites provided by the defendant. Clearly customer numbers accessing the network is highly relevant to a claim made by the plaintiffs that they have suffered from customer complaints and an inability to sign up customers and whether the equipment works. Again, however, the court notes the latitude of the request as formulated, in particular the reference to documents “relating to…”, a formulation that if applied would, in the court’s opinion render discovery of this category of documentation oppressive. The court therefore orders discovery of all documents that evidence and/or record the current customer numbers accessing the network both globally and on an individual site-by-site and sector-by-sector basis and records of the numbers of customers so accessing the Network as of the first day of each calendar month for the period since 1st January, 2010.

Category 13.h). The court notes the latitude of the request, more particularly its reference to documents “relating to…”, a formulation that if applied would, in the court’s opinion render discovery of this category of documentation oppressive. Otherwise the court is satisfied that this category of documentation is relevant and necessary. Though the parties have broached some form of agreement regarding this category of discovery, it does not appear that they are fully ad idem as to what has been agreed. The court therefore orders discovery of all documentation that evidences and/or records the ongoing maintenance and use of the base stations supplied by the defendant.

Category 13.i). The court notes the latitude of the request, more particularly its reference to documents “relating to…”, a formulation that if applied would, in the court’s opinion render discovery of this category of documentation oppressive. Otherwise the court is satisfied that this category of documentation is relevant and necessary. The court therefore orders discovery of all documentation that evidences and/or records any base stations that are in use and which were not installed by the defendant.

Category 13.j). MCC has paid in excess of €9m to the defendant for equipment and services provided by the defendant. That sum was paid by MCC to the defendant on foot of the furnishing by the plaintiffs to MCC of approval requests and drawdown requests. Such requests were allegedly accompanied by representations made by the plaintiffs to the effect that the equipment was doing what it was intended to do. This is clearly relevant to the issue of loss and also adequacy of the equipment. The court notes, however, the latitude of the request as formulated, in particular its reference to documents “relating to…”, a formulation that if applied would, in the court’s opinion, render discovery of this category of documentation oppressive. The court therefore orders discovery of all documents that evidence and/or record communications with MCC in respect of monies paid to the defendant.

? Category 14

b) All documents evidencing, recording or relating to the backhaul transport and core network employed by the Plaintiffs and any remedial action taken in relation thereto or modification made thereto by the Plaintiffs since October 2009.

c) All documents evidencing, recording or relating to the efforts of the Plaintiffs to secure the engagement of an alternative service provider in connection with the Network.

With regard to Category b), the court notes the latitude of the requested category and the lack of specificity arising, a combination of factors that would render oppressive an order for discovery in the requested terms. It is not clear what is meant by the term “remedial action” and the reference to the “network” is also unduly wide as there are large elements of the plaintiffs’ network that have no relationship to the WiMAX network at all. Subject to the foregoing, however, discovery of this category of documentation seems both relevant and necessary. The court therefore orders discovery of all documents that evidence or record any remedial action taken by the plaintiffs to the backhaul transport and core network since October 2009, subject to prior agreement being reached between the parties as to the exact meaning of the terms “remedial action” and “network”.

With regard to Category (c), the court notes the latitude of the request, more particularly its reference to documents “relating to…”, a formulation that if applied would, in the court’s opinion, render discovery of this category of documentation oppressive. The court notes also that it appears from correspondence between the parties that the only alternative service provider considered was Nokia Siemens Networks UK Limited, the party to whom the defendant purports to have assigned the MSA. The court therefore orders discovery of all documents that evidence or record the efforts of the plaintiffs to secure the engagement of Nokia Siemens Networks UK Limited in connection with the network.

Discovery sought from Imagine Communications Network Limited

The same categories of discovery have been sought by the defendant against Imagine Communications Network Limited as have been sought against the first and second-named plaintiffs. The same issues arise to be considered and the same position applies in respect of those issues, with the exception of Category 13. Consequently, except as regards Category 13 which is considered separately below, the court makes the equivalent orders, mutatis mutandis, in respect of the various categories of discovery that follow as it made in respect of the corresponding categories of discovery considered at Appendix B, Part I.

? Category 1

a) All documents evidencing, recording or relating to the claim in the Reply that Clause 65 of the MSA is not fair or reasonable.

b) All documents upon which the Plaintiffs rely in support of the claim in the Reply that the agreement referred to in Paragraph No. 37 of the Amended Statement of Claim is evidenced in writing.

? Category 2

c) All documents evidencing, recording or relating to the alleged undertaking of the Defendant to address the alleged financial loss caused by delays in meeting the alleged roll out schedule.

? Category 3

a) All documents evidencing, recording or relating to the alleged Collateral agreement including - but not limited to - the alleged agreement between the Defendant and the Third Plaintiff on foot of which the Third Plaintiff pleads that it “would have the protection and ability to ensure that the Defendant would have to meet the design specifications and performance of the solution tendered for in addition to the existing terms of the MSA.

? Category 4

a) All internal documents created between 13th October, 2009, and 6th July, 2011, evidencing, recording or relating to the conclusion of the Collateral Agreement, and the representations and their effect upon the MSA.

? Category 5

d) All documents evidencing, recording or relating to:-

1. Negotiations between the Plaintiffs and MCC in relation to the Equipment finance Agreement dated 3rd December 2009 and the Side Letter thereto.

4. The negotiation of the April Amendment Agreement executed by the First Plaintiff on 29th April, 2010.

5. Negotiations between the Plaintiffs and MCC in relation to the amendment of the EFA, which amendment was executed in May 2010.

? Category 6

b) All documents evidencing, recording or relating to the Defendant’s alleged knowledge or agreement that the Second Plaintiff might choose to implement its Business Plan using other companies in the Group, or by acting as wholesale company leaving or transferring customers and retail costs to the Third Plaintiff, or any other company under the control of the Third Plaintiff.

? Category 7

a) All documents evidencing, recording or relating to the plea that the Plaintiffs

inter se

and/or with other companies in the “Imagine Group” as referred to in the Statement of Claim are as a fact a single economic entity.

? Category 8

d) In the event that the Plaintiffs contend that the standard of Equipment and standard of Service provided by the Defendant are to be measured other than by reference to the 2009 Agreements and the April Amendment Agreement, all documents evidencing recording or relating to the standard of care and/or the standard of the Equipment and Services to be provided by the Defendant against which the Plaintiffs contend that the Equipment and Services provided by the Defendant are to be measured.

e) All Project Contracts placed by the Plaintiffs or any of them with the Defendant.

f) All Purchase Orders placed by the Plaintiffs or any of them with the Defendant.

i) All Change Order Purchase Orders placed by the Plaintiffs or any of them with the Defendant.

? Category 9

a) All documents evidencing, recording or relating to:

(i) The identity of the sites rolled out;

(ii) The date that each individual site was ordered by the Plaintiffs from the Defendant;

(iii) The date the site was made available to the Defendant;

(iv) The date the Equipment was installed thereon;

(v) The Equipment that was actually installed;

(vi) The date the Equipment was available for use by customers (whether provisionally accepted or not);

(vii) The number of sites capable of being loaded with customers after 3rd December, 2010.

b) All documents evidencing, recording or relating to any sites rolled out by the Plaintiffs other than through the services of the Defendant.

? Category 10

b) All documentation evidencing, recording or relating to the negotiation of the provisions of Schedule 6 and Schedule 8 of the MSA.#

c) All documents evidencing, recording or relating to the “problems affecting the CPE” - as alleged in the Statement of Claim - as of:

(i) 13th October, 2009, and

(ii) 3rd December, 2009, and

(iii) April 2010.

e) All documents evidencing, recording or relating to the consideration of the Plaintiffs of the certification of the acceptance of Phase 1B of the Network.

h) All Provisional Acceptance Certificates for each site, the subject matter of the proceedings (including those bearing any signature of a servant or agent of the Plaintiffs, or any signature at all).

i) All documents evidencing, recording or relating to the consideration given by the Plaintiffs to signing such Provisional Acceptance Certificates, including the consideration by the servants or agents of the Plaintiffs of the Acceptance Test Procedure.

h) All Final Acceptance Certificates for each site, the subject matter of the proceedings (including those bearing any signature of a servant or agent of the Plaintiffs, or any signature at all).

i) All documents evidencing, recording or relating to the consideration given by the Plaintiffs to signing such Final Acceptance Certificates.

j) Insofar as not captured by the foregoing, all Provisional or Final Acceptance Certificates furnished by the Defendant to the Plaintiffs and in the possession of the Plaintiffs.

k) All documents evidencing, recording or relating to any testing carried out by the Plaintiffs on the efficacy of the Equipment installed by the Defendant.

r) All documents created during the period from 1st February, 2010, to date that evidence and/or record the activities of the Plaintiffs’ Site Procurement Team and consideration given by them to the capability of the Plaintiffs to procure and provide sufficient numbers of sites to meet the accelerated deployment plan.

s) All documents evidencing, recording or relating to any technical problems with the Network that persisted during the period 1st March, 2010 to 23rd December, 2010.

t) All notes and documents brought by the Plaintiffs to the daily meetings from 1st June, 2010 to 29th April, 2011/.

? Category 11

a) All documents evidencing recording or relating to the consideration given by the Plaintiffs to

(ii) The furnishing to the Defendant of Provisional Acceptance Certificates.

b) All documents evidencing, recording or relating to

(ii) The furnishing to the Defendant of Final Acceptance Certificates.

? Category 12

a) All documents evidencing or relating to the claim in the Reply that Clause 66 of the MSA is not fair or reasonable.

b) All documents evidencing or relating to the claim in the Reply that Clause 43 of the MSA is not fair or reasonable.

? Category 13

a) All Board Minutes of the Third Plaintiff and all other companies in the Imagine Group and presentations to the Third Plaintiff and to the Boards of all other companies in the Imagine Group where the WiMAX network the subject of the proceedings was discussed in the period 1st June, 2008 to 30th June, 2012.

b) All documents evidencing, recording or relating to consideration given by the Plaintiffs or any of them to competing tenders solicited.

c) The accounts and /or financial statements of each of the individual constituent companies of the Imagine Group - other than the First and Second Plaintiffs - for the financial year ends 31st December, 2008 through financial year end 31st December, 2013.

d) All documents evidencing, recording or relating to:

(iii) Expressions of interest of potential customers to the Network and particularly identifying the named Plaintiff to whom the interest was expressed or, in the alternative, identifying which other company in the Imagine Group the interest was expressed to.

(iv) Customer complaints received by the Third Plaintiff or any other company in the Imagine Group, identifying by which company the complaints, if any, were received and the date of same.

(v) Customers who expressed interest but who did not ultimately subscribe to the WiMAX Network (whether to the named Plaintiffs or another company within the Imagine Group).

e) All documents evidencing, recording or relating to:

(vii) The restructuring of the Plaintiffs’ debt and the cost thereof.

(viii) The arrangement as between the Third Plaintiff and the Second Plaintiff in relation to the cost of debt restructuring.

(ix) The arrangement as between the Third Plaintiff and the Second Plaintiff in relation to the cost of additional interest.

f) All documents evidencing, recording or relating to

(i) the alleged additional funding secured by the Third Plaintiff as at 13th January, 2010.

(ii) the restructuring of the Plaintiffs’ debt and the cost thereof.

(iii) the cost of additional interest suffered by the Plaintiffs.

(iv) the cost of replacing the Network.

(xi) the current customer numbers accessing the network both globally and on an individual site-by-site and sector-by-sector basis and records of the numbers of customers so accessing the Network as of the first day of each calendar month for the period since 1st January, 2010.

g) All documents evidencing, recording or relating to the spending by the Plaintiffs, and each of them, on advertising in respect of the WiMAX Network services offered to the public by the Plaintiffs and any other members of the Imagine Group for the period from 6 months prior to the execution of the MSA to date.

h) All documents evidencing, recording or relating to the spending by any company in the Imagine Group including the Third Plaintiff on advertising in respect of the WiMAX Network services offered to the public by the Plaintiffs for the period from 6 months prior to the execution of the MSA to date.

i) All documents evidencing, recording or relating to the ongoing maintenance and use of the base stations supplied by the Defendant.

j) All documentation evidencing, recording or relating to any base stations in use which were not installed by the Defendant.

k) All documents evidencing, recording or relating to communications with MCC in relation to payment in respect of monies paid to the Defendant.

Category 13.a). This category of documents is relevant to the dispute and its discovery necessary. The court therefore orders discovery of this category of documentation.

Category 13.b). The consideration of other tenders does not appear relevant to the dispute arising between the parties pursuant to the tendering process done and contracts concluded between them. The court therefore declines to order discovery of this category of documentation.

Category 13.c). The court notes the undue latitude of this category, as sought; if the order sought in this regard was granted, the order would require the discovery of accounts of companies within the Imagine Group that had no involvement in the provision of the WiMAX services. The court notes that insofar as the provision of accounts that reflect the contested status of the group as a single economic entity, such information has already been provided to the defendant. The court therefore orders discovery of the accounts and /or financial statements of each of the individual constituent companies of the Imagine Group, other than the first and second-named plaintiffs, for the financial year ends 31st December, 2008 through financial year end 31st December, 2013, provided that it shall not be necessary for the third-named plaintiff to provide the accounts of any companies within the Imagine Group that had no involvement in the provision of the WiMAX services.

Category 13.d).iii-v. With regard to Category 13.d).iii, the court considers that it would be oppressive to order discover of this category of documentation, as sought, without imposing a temporal constraint; the constraint proposed by the plaintiffs in this regard and mentioned hereafter appears appropriate and ensures that this category of discovery is proportionate. With regard to Category 13.d).iv, the plaintiffs have offered to make discovery subject to it being limited to the timeframe 1st February, 2010 to date. As the plaintiffs have pleaded that over the period of Christmas 2009 they received a significant number of complaints the court does not consider that the plaintiffs’ proposed timeline is appropriate. However, the court considers that it would be oppressive to order discover of this category of documentation without imposing a temporal constraint. With regard to Category 13.d)v., the court considers it appropriate to order discovery, subject to the imposition of a suitable time constraint. The court therefore orders discovery by the third-named plaintiff of: (a) expressions of interest of potential customers to the network and particularly identifying the named plaintiff to whom the interest was expressed or, in the alternative, identifying which other company in the Imagine Group the interest was expressed to; (b) customers who expressed interest but who did not ultimately subscribe to the WiMAX Network (whether to the third-named plaintiff or another company within the Imagine Group); (c) all customer complaints received by the third-named plaintiff or any other company in the Imagine Group, identifying by which company the complaints, if any, were received and the date of same. In the case of (a) and (b) the period to which the order relates is 13th October, 2009, to the date of this judgment. In the case of (c), the period to which the order relates is 1st December, 2009 to the date of this judgment.

Category 13.e). The court notes the latitude of the request, more particularly its reference to documents “relating to…”, a formulation that if applied would, in the court’s opinion, render discovery of this category of documentation oppressive. The court notes also that the third-named plaintiff has sought the imposition of a temporal constraint but does not consider this appropriate given that there is no such limitation on the plaintiffs’ claim for loss. The court therefore orders discovery of all documents that evidence and/or record (a) the restructuring of the plaintiffs’ debt and the cost thereof, (b) any arrangement as between the second and third-named plaintiffs in relation to the cost of debt restructuring, and (c) any arrangement as between the second and third-named plaintiffs in relation to the cost of additional interest.

Category 13.f).i-iii. The third-named plaintiff is satisfied to provide discovery in relation to this category to date. This being so it is not necessary for the court to consider this category of discovery.

Category 13.f).(iv). This category of documents is relevant to the dispute and its discovery necessary. The court therefore orders discovery of this category of documentation.

Category 13.f).(xi). The plaintiffs are in receipt of income in excess of €9m per annum from the sites provided by the defendant. Clearly customer numbers accessing the network is highly relevant to a claim made by the plaintiffs that they have suffered from customer complaints and an inability to sign up customers and whether the equipment works. Again, however, the court notes the latitude of the request as formulated, in particular its reference to documents “relating to…”, a formulation that if applied would, in the court’s opinion render discovery of this category of documentation oppressive. The court therefore orders discovery of all documents that evidence and/or record the current customer numbers accessing the network both globally and on an individual site-by-site and sector-by-sector basis and records of the numbers of customers so accessing the Network as of the first day of each calendar month for the period since 1st January, 2010.

Category 13.g). This documentation is relevant to the level of damages suffered. Its discovery is therefore relevant and necessary, save that the court notes again the latitude of the request, more particularly its reference to documents “relating to…”, a formulation that if applied would, in the court’s opinion render discovery of this category of documentation oppressive. The court therefore orders discovery of all documents that evidence and/or record the spending by the plaintiffs, and each of them, on advertising in respect of the WiMAX network services offered to the public by the plaintiffs and any other members of the Imagine Group for the period from 6 months prior to the execution of the MSA to date.

Category 13.h). The defendant has indicated that this category of discovery is no longer being pursued by it.

Category 13.i). The court notes the latitude of the request, more particularly its reference to documents “relating to…”, a formulation that if applied would, in the court’s opinion render discovery of this category of documentation oppressive. Otherwise the court is satisfied that this category of documentation is relevant and necessary. Though the parties have broached some form of agreement regarding this category of discovery, it does not appear that they are fully ad idem as to what has been agreed. The court therefore orders discovery of all documentation that evidences and/or records the ongoing maintenance and use of the base stations supplied by the defendant.

Category 13.j). The court notes the latitude of the request, more particularly its reference to documents “relating to…”, a formulation that if applied would, in the court’s opinion render discovery of this category of documentation oppressive. Otherwise the court is satisfied that this category of documentation is relevant and necessary. The court therefore orders discovery of all documentation that evidences and/or records any base stations that are in use and which were not installed by the defendant.

Category 13.k). MCC has paid in excess of €9m to the defendant for equipment and services provided by the defendant. That sum was paid by MCC to the defendant on foot of the furnishing by the plaintiffs to MCC of approval requests and drawdown requests. Such requests were allegedly accompanied by representations made by the plaintiffs to the effect that the equipment was doing what it was intended to do. This is clearly relevant to the issue of loss and adequacy of the equipment. The court notes, however, the latitude of the request as formulated, in particular its reference to documents “relating to…”, a formulation that if applied would, in the court’s opinion, render discovery of this category of documentation oppressive. The court therefore orders discovery of all documents that evidence and/or record communications with MCC in respect of monies paid to the defendant.

? Category 14

c) All documents evidencing, recording or relating to the efforts of the Plaintiffs to secure the engagement of an alternative service provider in connection with the Network.

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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> IBB Internet Services Ltd & ors -v- Motorola Ltd [2015] IEHC 54 (03 February 2015) URL: http://www.bailii.org/ie/cases/IEHC/2015/H54.html Cite as: [2015] IEHC 54

High Court of Ireland Decisions