Court hears concern over custody of USB stick in Denis O’Brien case

A war of words erupted at the High Court on Friday over the movements between Rotterdam and Dublin of a USB computer memory stick at the heart of businessman Denis O’Brien’s legal action against Red Flag Consulting.

Mr O’Brien initiated his case last October after saying he had received a dossier of mainly damaging material about him on the USB memory stick sent anonymously in an envelope to his Dublin office.

He alleges conspiracy and defamation against Red Flag and some of its executives and staff.

A hearing date has yet to be fixed and the case was before Mr Justice Colm MacEochaidh today for case management purposes.

Maurice Collins SC, for Red Flag, said his side is very concerned about issues concerning the custody of the USB stick. The USB stick was with Digitpol, a company in Rotterdam, for some ten days after the High Court had directed on October 16th it be given “forthwith” to solicitors for Mr O’Brien, to be retained in safe custody, pending further court order.

His side was concerned there appeared to have been disregard of the court’s order, he said. Whatever Digitpol was doing with the stick “remains a completely mystery to us”, he said.

They had received reports from the other side that completely changed the timing relating to when some persons had access to the stick. This was all occurring in a context where the court had directed there should be no interference with the stick, he added.

Martin Hayden SC, for Mr O’Brien, said the language being used by counsel was “outrageous” and there had been no access to or interference with the encrypted chamber of the USB stick which contained the dossier. Digitpol had the stick for analysis purposes, he said.

The reports referred to involved changes of just four words relating to identities of persons who had access to the stick at particular times for the purpose of reports, he said.

If the Red Flag side was contending there was a breach of the High Court order, it should bring an application in that regard but no such application had been brought, he said.

Mr Collins said his side had wanted to give the other side an opportunity to address Red Flag’s concerns in detailed affidavits.

Mr Justice MacEochaidh noted his order had said the stick should be handed over forthwith and said he would give Mr Hayden two weeks to provide a comprehensive affidavit addressing the issues raised.

Earlier, the judge heard the sides had reached agreement on a timeline for exchange of legal documents necessary for the full hearing of the case. Mr Hayden also said his side had raised issues about whether certain notifications were sent to a Gmail address of a Red Flag staff member. That matter remained a live issue, he added. Mr Collins said that issue was “a pure smokescreen”.

Mr O’Brien initiated his proceedings against Red Flag and some of its executives and staff last October arising from the contents of dossier on the USB stick.

The dossier mostly comprised media articles about the businessman but also included documents entitled “Who is Denis O’Brien? “ and the “Moriarty Tribunal Explainer”.

Mr O’Brien alleges the dossier is evidence of a conspiracy to damage him personally and professionally and alleges Red Flag and its client for the dossier are part of the alleged conspiracy.

Red Flag has told the court it had a client for the dossier but it is entitled not to reveal that client’s identity. It also raised issues about how its material came into the possession of Mr O’Brien.

The High Court late last year refused to grant Mr O’Brien an order requiring Red Flag to immediately identify its client. Previously, Mr Justice MacEochaidh ordered various executives and staff of Red Flag to hand over for “forensic imaging” any personal computers and devices used by them for work purposes.

The order allowed digital forensic experts photograph material on the equipment pending a ruling whether that material can be inspected for use in Mr O’Brien’s action.