Court hears of concerns over custody of USB stick

Stick was in the Netherlands for 10 days after court ordered it be handed over ‘forthwith’

Mr Justice Mac Eochaidh: he gave Denis O’Brien’s side two weeks to provide affidavit

Red Flag Consulting has told the High Court it has concerns relating to custody of a USB computer memory stick at the heart of businessman Denis O'Brien's legal action against the firm.

The stick contains a dossier of material about the businessman which, he alleges, evidences a conspiracy to damage him. The stick was in the offices of Digitpol, a firm in Rotterdam, for 10 days after the court ordered on October 16th last it be handed over “forthwith” to solicitors for Mr O’Brien to be held without interference pending further court orders, Maurice Collins SC, for Red Flag, said.

Martin Hayden SC, for Mr O'Brien, said there had been no access to, or interference with, the encrypted chamber of the USB stick containing the dossier. Digitpol had the stick for analysis purposes and what was being suggested by Red Flag was "outrageous".

Mr O’Brien initiated his case in October after the USB stick was 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 Mac Eochaidh yesterday for case management purposes.

Mr Collins said his side is very concerned about issues concerning custody of the USB stick.

Red Flag was unaware the stick was with Digitpol in Rotterdam until October 26th and was informed on October 29th it was in the custody of Mr O’Brien’s solicitors without being told it had only come into their possession.

Whatever Digitpol was doing with the stick "remains a complete mystery to us", he said. His side was also cocerned what was happening when the stick was surrendered to another digital forensic firm, Espion, in the solicitors' offices.

There were other matters leading to a report from digital forensic experts for his side, counsel added. His side was concerned there appeared to have been disregard of the court’s October 16th order, he said. They had received two reports from the other side, one of which completely changed the timing in the other relating to when some people had access to the stick and this was all in a context where the court had directed there should be no interference with the stick, he added.

Mr Hayden said he took issue with the "outrageous" way these matters were being raised and the "emotive language" used. There had been no access to or interference with the encrypted chamber of the USB stick which contained the dossier and Digitpol had the stick for analysis purposes, he said.

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

His side’s experts had examined the stick, a protoocl relating to memory analysis was part of that process. The examination left a “shadow” which was “being converted into us altering it”, counsel said.

There was no interference with the encrypted barrel containing the dossier and Red Flag was told any interaction with the USB stick had no impact on the dossier documents. 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 had not, 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 Mac Eochaidh noted his October order directed the stick be handed over “forthwith” and gave Mr O’Brien’s side two weeks to provide a comprehensive affidavit addressing the issues raised.

Earlier, the judge heard the sides had agreed a timeline for exchange of legal documents necessary for the full hearing of the case.

Mr Hayden also said his side had raised issues whether certain notifications were sent to a  gmail address of a Red Flag staff member and that remained a “live” issue. Mr Collins said that issue was “a pure smokescreen”.

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 an order requiring Red Flag to immediately identify its client.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times