A consulting company has told the High Court that Denis O'Brien has left "clouded in mystery" exactly how material from the firm's computers files ended up on a USB memory stick placed in an envelope sent anonymously to Mr O'Brien.
Michael Collins SC, for Dublin-based Red Flag Consulting Ltd, said it was of "extraordinary concern" to the firm how its computers were accessed, material extracted from them and how a dossier of that material ended up on the billionaire businessman's desk.
It was not known whether the firm’s computers were hacked or someone had passed on the information, he said. Mr O’Brien had hired a private investigator to look into his claims of an alleged conspiracy to damage him and it was not clear if the dossier was provided as a result of that investigation or by other means, counsel added.
There was “no explanation” from Mr O’Brien and the Red Flag side will be asking whether full disclosure was made by Mr O’Brien when he looked for search and seizure orders earlier this week, counsel said. His side wanted to know whether the process by which Mr O’Brien got the material was lawful.
The dossier includes more than 80 media stories related to Mr O'Brien contained in different files relating to matters such as the planned IPO of his Digicel firm, the Moriarty tribunal and the Siteserv transaction. It also includes a PDF document under the title: "Who is Denis O'Brien?" and another document entitled: "The Moriarty Tribunal Explainer".
Also included in the dossier is a document described as a draft speech for Fianna Fáil TD Colm Keaveney.
A report received last Monday from the Espion IT firm hired by Mr O'Brien to forensically examine the dossier showed words and phrases used in that speech are suggestive of Red Flag Consulting CEO Karl Brophy contributing to that document, Michael Cush SC, for Mr O'Brien, said.
Mr O’Brien wanted to know who paid Mr Brophy “to craft that”.
Mr Cush said his client wants to urgently inspect the Red Flag firm’s computers for their action alleging a “textbook conspiracy” to harm Mr O’Brien’s interests, including the planned IPO of Digicel, by either lawful or unlawful means. He wanted to establish who commissioned the dossier and who contributed to it.
Mr O'Brien's case is against the Red Flag firm and five persons involved with it. They are former Independent News & Media senior executives, Gavin O'Reilly and Karl Brophy; Red Flag chairman, Séamus Conboy; account manager Brid Murphy and account executive Kevin Hiney.
Mr O’Brien secured court orders earlier this week restraining interference by the defendants with files related to documents contained in the dossier or with any material indicating who contributed to those documents or who may have commissioned them.
The businessman initially sought search and seizure orders ex parte (one side only represented) which would have permitted his representatives enter the firm’s offices and take material from the computers but those were refused by the President of the High Court, Mr Justice Nicholas Kearns, as “quite draconian”. The judge instead made orders essentially preserving any such files and those orders were on Wednesday returned by Mr Justice Colm MacCochaidh to Friday.
The matter was essentially before the judge on Friday to decide how to progress the hearing of Mr O’Brien’s application for injunctions permitting his side inspect the material on the Red Flag computers for use in the claim for alleged defamation and conspiracy.
Mr Cush, for Mr O’Brien, sought an urgent hearing of the injunction matter but Mr Collins, for Red Flag, disagreed the matter was urgent.
On being told both sides would agree to forensic imaging, or photographing, of the contents of the Red Flag computers but each wanted their own IT firms to do that, the judge directed the imaging process be carried out “forthwith” and jointly by IT experts for the sides. Mr Cush earlier said the imaging process could be completed within two days.
The judge also directed that the USB stick, access to which was sought by the Red Flag side, be instead held by Mr O’Brien’s solicitor pending further order and that it not be interfered with in any way pending further order.
The judge said he did not regard the matter as any more urgent than other cases in the court’s list and he gave Mr O’Brien’s side a month to file a statement of claim with a defence to be provided within two weeks after that.
He fixed December 8th for hearing the application for injunctions permitting Mr O’Brien’s side inspect the material to be photographed from the Red Flag computers.
