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Denis OBrien reaches

agreement with Red Flag


workers
Two employees will not have to give businessman access
to PCs and smartphones
Tue, Oct 18, 2016, 01:00

Peter Murtagh

Denis O Brien: The businessman is suing Red Flag over a dossier of material
about him, whch he asserts is defamatory. Photograph: David Sleator

Two employees of Red Flag Consulting, the public


relations firm being sued by businessman Denis
OBrien, will not have to give him potential access to
their personal computers and smartphones following
an agreement announced yesterday in the Court of
Appeal.
The two, Brid Murphy and Kevin Hiney, appealed an
imaging order, granted to Mr OBrien by Mr Justice
Colm Mac Eochaidh in the High Court last November,
allowing for all data on their personal devices
smartphones and tablets to be copied in the presence
of Mr OBriens digital forensic experts.

This copy would have gone to a third-party lawyer and


Mr OBrien would have had to apply to the courts for
access.
The pair appealed, citing privacy and data protection,
and argued that their personal devices contained
personal information such as family photographs.

Handling material

Yesterday their barrister, Maurice Collins SC, told the


Court of Appeal that the matter had been resolved. The
sides had agreed a way forward, including how the
material may be handled pending further court order,
he said.
Mr OBriens lawyers were given the imaging order as
part of their preparations for the full hearing of his
case against Red Flag and various executives and staff
of the company, against whom he alleges defamation
and conspiracy.
.

Denis OBrien and Red Flag reach agreement on


devices

The businessman claims Red Flag was involved in


preparing, for an unidentified client, a dossier of
material about him which is mostly unfavourable and
which he asserts is also defamatory.
Red Flag acknowledge creating the dossier of some 339
files, mainly copies of already published media reports,
together with some original profile and briefing-type
material.

Denies conspiracy

Red Flag denies conspiracy or that the material is


defamatory. It has argued that there are significant
issues concerning how Mr OBrien was given the
dossier, known to have been obtained by only one
other person, a sometime journalist named Mark
Hollingsworth.
When Mr Hollingsworth got the dossier in September

2015, he was also working with Alaco, a Londonheadquartered corporate intelligence-gathering


company, Alaco. He did not disclose this fact to the
TDs and journalists he interviewed in Dublin.
A date for the hearing of the full action by Mr OBrien
has yet to be fixed and both sides are also awaiting Mr
Justice Mac Eochaidhs decision on his application for
discovery against Red Flag.
If granted, this would oblige Red Flag to disclose to Mr
OBrien documents the High Court will identify as
potentially being relevant to his case and which will be
accessed through Red Flags solicitors.
Under yesterdays agreement, access to material on Ms
Murphy and Mr Hineys personal devices will be
targeted in this way, according to the parameters of
any discovery order eventually granted by Mr Justice
Mac Eochaidh.
Both sides believed, Mr Collins told the appeal court,
that the matter could be addressed via the discovery of
documents process. They had also agreed how the
devices should be handled, he said.
Mr Justice Michael Peart, presiding at the three-judge
Court of Appeal, agreed to strike out the appeal on the
terms agreed, including a stay, pending any further
order of the High Court or Court of Appeal, on the
imaging orders.
He also made agreed orders for costs related to the
appeal (dependent on the outcome of the full case) and
gave liberty to both sides to apply.
http://www.irishtimes.com/news/ireland/irish-news/denis-obrien-reaches-agreement-with-red-flag-workers-1.2833269

Carol Hunt: Integrity a


cornerstone of Colm Mac
Eochaidh's colourful
career
Colm Mac Eochaidh has already done
the State a great service, and he has
always had the courage to speak out
Carol Hunt Twitter
PUBLISHED
07/04/2013

There has been quite a bit of judgemental (if you'll excuse the pun) sniffling in certain
quarters over comments made by High Court Judge Colm Mac Eochaidh last week.

During a seven-hour emergency hearing at the High Court


(at the end of which lawyers for Dennis O'Brien and Paddy
McKillen won a temporary injunction against the Sunday
Times publishing confidential information), Justice Mac
Eochaidh noted that Mr O'Brien was in a "peculiar
position" to now be seeking the protection of the courts
when he had made such "contemptible" comments about
Justice Moriarty following the tribunal report in 2011.
When Justice Mac Eochaidh asked O'Brien's barrister if he
had consulted with his client on the ambivalence of his
position, and when told the matter had not arisen in
consultations, Mac Eochaidh is reported to have said, "it
should have"
http://www.independent.ie/opinion/analysis/carol-hunt-integrity-a-cornerstone-of-colmmac-eochaidhs-colourful-career-29179181.html

OBrien libel action against

PR dealt a blow

Sen McCrthaigh
Last updated at 12:01AM, December 22 2015

The High Court has refused a request by Denis OBrien to


compel a PR company to name the client behind an alleged
defamatory campaign against him.
The telecoms and media billionaire had claimed that the
material in a dossier compiled by Red Flag was defamatory
and accused the Dublin-based company and an unknown
client of conspiring to damage him and his business interests.
Mr Justice Colm Mac Eochaidh upheld arguments put forward
by Red Flags legal team that it was obliged to protect its
clients confidentiality.
The PR firm had claimed there was no legal basis for the
order, and

Staff told to hand over devices in


OBrien case
uesday, November 03, 2015
Ann OLoughlin

A judge has ordered various executives and staff of the


Dublin-based Red Flag consulting firm being sued by
billionaire businessman Denis OBrien over alleged
conspiracy to damage him to hand over for forensic
imaging any personal computers and devices used by
them for work purposes.

The order allows digital forensic experts photograph


material on the equipment pending a ruling whether that
material can be inspected for use in Mr OBriens action
against Red Flag and various executives and staff, alleging
defamation and conspiracy.
Mr Justice Colm Mac Eochaidh said the order would
balance the rights to privacy of the individuals and Mr
OBriens right to establish the fingerprints on a dossier
of material sent to him anonymously. Mr OBrien claims
material is largely unfavourable to him and he believes
Red Flag was involved in putting it together for an
unnamed client.
The judge said the case involves, at its simplest, a
smoking gun which came into the possession of Mr

OBrien and which he says contained material about him


that is evidence of a conspiracy to harm him.
The judges order means Red Flag chairman Seamus
Conboy, chief executive Karl Brophy, non-executive
director Gavin OReilly, and two staff members must
provide for forensic imaging any personal computers,
laptops, phones, and other devices they use for work
purposes.
Other staff members who say they have not used their
work or personal devices in connection with the dossier
must provide sworn statements to that effect.

http://www.irishexaminer.
com/ireland/staff-told-tohand-over-devices-inobrien-case-362755.html
Denis O'Brien's lawyers
say 'clear evidence' of
campaign against him

19:54 Tuesday 8th of December 2015

Businessman Denis OBriens lawyers have


told the High Court that there is clear
evidence of very serious wrongdoing and a
campaign against him in a dossier compiled
by Public Relations Firm Red Flag.
On Tuesday, Senior Counsel Michael Cush
said anyone who reads the articles and files
within the dossier, which he says was sent to
him anonymously in October on a memory
stick , is intended to think much less of Mr
OBrien.
He said Red Flag have a client who has
commissioned the firm to compile this
dossier and he says there is evidence of a
conspiracy and defamation.
Mr O Brien is ultimately trying to establish
who that client is.
Mr Cush said he needed the order to force
Red Flag to reveal the identity of that client
because he thinks that person will seek to
cover his tracks.
Im saying whoever it is, is engaged in the
most despicable activity and is determined to
remain anonymous, he told Mr Justice Colm
Mac Eochaidh.
https://www.kildarenow.com/uncategorized/denisobriens-lawyers-say-clear-evidence-of-campaign-againsthim/62353

Denis O'Brien
fails in bid to
have identity of
Red Flag's client
revealed
Dec. 22, 2015 07:23

The High Court has refused to grant an order


to businessman Denis O'Brien directing PR
company Red Flag to reveal the identity of a
client, who commissioned a dossier about Mr
O'Brien.
Mr O'Brien claims the company, its Chief
Executive, Karl Brophy, Chairman, Gavin
O'Reilly and other members of staff have
been involved in a conspiracy to damage his
interests.
He claims parts of the dossier were
defamatory.
Mr Justice Colm Mac Eochaidh ruled this
afternoon that the law required Mr O'Brien to
establish a very high degree of wrongdoing
on the part of the person he wanted to
identify.
But he found that Mr O'Brien had not proved
that the dossier had been published
anywhere and without publication there could

be no defamation.
He also found that Mr O'Brien had not proved
that harm had been done to him.
He also found that Mr O'Brien had not proved
that the motivation of the unnamed person
was to do harm to him.
Mr Justice Mac Eochaidh also said that Mr
O'Brien's lawyers had argued that the duty of
confidentiality owed by Red Flag to its clients
should be outweighed by the interest in
obtaining evidence of wrongdoing.
The judge said Mr O'Brien knew full well how
important confidentiality was.
He said Mr O'Brien had taken a case in 2013
against the Sunday Times in which he argued
that irreversible harm would be caused to
him if certain financial details were
published.
The judge said Mr O'Brien would have had to
have had a very strong case indeed, almost
to the point of certainty, that wrongdoing had
been committed against him, if he wanted
the court to make orders that would have
caused irreversible damage to the
defendants.
Lawyers for Red Flag said they would be
seeking their costs.
A full hearing of Mr O'Brien's case against
Red Flag has yet to take place, but Mr Justice
Mac Eochaidh said there was no urgency to
the case.
He said if the people alleged to be conspiring

against Mr O'Brien were as untrustworthy as


he alleged then any evidence of wrong doing
would have been destroyed by now.
Also he said the existence of this case would
have a "quietening" effect on any
conspirators.
The case will be back in court again next
month.

https://www.rte.ie/news/
2015/1221/755495-deniso-brien/
High Court refuses to
grant Denis O'Brien
orders naming Red Flag's
client
Aodhan O'Faolain
PUBLISHED
13/12/2016

Businessman Denis OBrien. Photo: Collins Courts

A High Court judge has refused to grant


Denis O'Brien orders directing Red Flag
Consulting to discover documents that
would disclose the identity of its client for a
dossier about the businessman.
Mr Justice Colm MacEochaidh, on the basis of his finding
Mr O'Brien had not adduced enough facts to show
"publication" of the dossier, also refused to order Red Flag
discover documents in relation to publication of the
dossier.
Noting his previous finding the court had not heard the
"full story" about the "mysterious appearance" of how the
dossier arrived at Mr O'Brien's offices in October 2015 on
a memory stick placed in an envelope, he said he would
not order discovery of documents in relation to
publication because of the absence of pleaded material in
relation to that issue.
While Mr O'Brien's side had argued he was entitled to
such evidence of publication "without which his case
would fail", so too was every plaintiff who believes they
have a good case "but lacks the evidence to prove it", the
judge said.

If that were possible, litigants would "flood the courts with


unsubstantiated writs hoping that applications for
discovery would produce the evidence they lack"
The judge ruled Mr O'Brien was entitled to discovery of
documents relating to communications between Red Flag
and its client for the dossier. Those communications must
concern the dossier only and the client's name could be
redacted, he added.
Such documents were likely to reveal the nature of the
relationship between Red Flag and its client and were
relevant because Red Flag's motivation in preparing the
dossier was an issue in the case, he said.
He was giving judgment on applications by Mr O'Brien's
lawyers for documents as part of preparations for the full
hearing of his case against Red Flag and various executives
and staff alleging defamation and conspiracy.
The businessman claims Red Flag was involved in
preparing, for an unidentified client, a dossier of material
about him which he alleges is mostly unfavourable and
defamatory.
He said in court documents the dossier was on a USB
memory stick contained in an envelope sent anonymously
to his Dublin offices in October 2015. It contains about 80
media reports and other material, including a document
entitled: Who is Denis OBrien? and The Moriarty
Tribunal Explainer.
Red Flag, which denies defamation or conspiracy,
previously confirmed the dossier included its documents,
said there are significant issues concerning how Mr
OBrien got that material and argued it was entitled to
preserve the anonymity of its client.
In his judgment today, Mr Justice MacEochaidh noted
Red Flag had agreed to make discovery of the instructions
provided by its client and the terms of its retainer on the
basis those are relevant to the issue of its motivation.
In order to get additional documents identifying the client,
Mr O'Brien must persuade the court knowing the client's
identity was relevant and necessary for the case and

would, as a matter of probability, advance his plea the


defendants predominant motive in compiling the dossier
was to harm him.
There were "too many imponderable and unknown"
outcomes in the theory of relevance advanced by Mr
O'Brien to entitle him to the documents sought, the judge
said. The most he could say was that knowing the client's
identity might assist with proving the client's motivation
which in turn might assist in attributing that motivation to
the defendants in compiling the dossier.
The judge noted Red Flag had claimed discovery should in
any event be refused on the basis of confidentiality
between it and the client. If Mr O'Brien had persuaded the
court discovery of the identity was relevant and necessary,
he could have argued confidential relations ought not
prevent an order for discovery but the court did not have
to decide that issue in these circumstances, he said.
On foot of his finding Mr O'Brien had failed to produce
enough or any evidence to show there was publication of
the dossier, he refused discovery of documents showing
the identity of persons or entities to whom the dossier was
sent.
While Mr O'Brien argued publication could be inferred
from the dossier being sent to his office and the fact he
was asked certain questions by journalists prior to that, he
had failed to substantiate that claim in any way, the judge
held.
He had failed to provide evidence of questions asked of
him and it was "very surprising" and "odd" no details at all
were provided about his interactions with the journalists
in question.
It was also surprising Mr O'Brien had not been able to
provide any information at all about how the memory stick
came to him and had not even told the court why he had
no information about the "mysterious appearance" of the
stick.
The judge noted his previous findings there was
insufficient evidence to conclude "a want of candour" by

Mr O'Brien concerning how he got the memory stick but


that the "full story" had not been told about its delivery.
Mr O'Brien should have been aware he should provide a
full explanation of how the stick came to be in his
possession or, if he could not do that, explain why that was
not possible, he said.
The matter has been adjourned to next month.
After the hearing a spokesperson for Denis O'Brien said he
intends to appeal the ruling.
http://www.independent.ie/irish-news/courts/highcourt-refuses-to-grant-denis-obrien-orders-naming-redflags-client-35290428.html

Denis OBrien suffers a


serious setback in Red Flag
battle
Analysis: High Court judge delivers blunt assessment of
the businessmans case
about 8 hours ago

Peter Murtagh

Denis O Brien at the High Court, Dublin. File photograph: Gareth


Chaney/Collins

Im not going to read out the whole of the judgment,


said Mr Justice Colm Mac Eochaidh in a soft voice. Ill
just read out some of the passages.
Court 15 in Dublins Four Courts, a small room on the
second floor, was barely half full.
Apart from the two sets of lawyers one for Denis
OBrien, the other for Red Flag Consulting and a
handful of reporters, the public seats were largely
empty,
The judges voice may have been soft, but what he said
was not.
Flicking though pages of his 26-page ruling to get to
the meaty bits, it was clear quickly that this was not
going to be a happy day for the plaintiff, Denis OBrien.
As part of his year-long battle with Red Flag, OBrien
was seeking discovery of nine categories of documents
from inside the PR company in other words, he
wanted the High Court to direct the company to give
him the documents to help him pursue his case against
them for conspiracy, defamation and causing him loss

by unlawful means.
In the event, he lost in eight of the nine categories.
Red Flag does not have to disclose the identity of their
client, the person on whose behalf a dossier of
newspaper cuttings on OBrien, plus some assessments
of him and his businesses, was assembled by the PR
company.
Furthermore, the judge ruled that OBrien had failed to
prove the dossier had been published and therefore he
could not prove that he had been defamed.
The one category in which the judge found in OBriens
favour, Category G, relates to communications between
Red Flag and their client on the dossier and any other
subject.
However, the R word with which OBrien has become
so associated in the public consciousness raised its
head once again.
Denis OBrien fails to get orders identifying Red Flag client

.
.

The Denis OBrien dossier: what happened to the USB


memory stick?
Denis OBrien case against PR firm Red Flag adjourned

Needless to say, wrote the judge, any discovery


ordered in this category may be redacted to conceal the
identity of the defendants client.
In four separate categories of documents, OBrien had
wanted to know for whom Red Flag was working.

Marching orders

He wanted to know the marching orders given to the


firm by the client, how much they were being paid and
since when.
He wanted to know who wrote and who edited three
original papers about him in the dossier.
And he wanted to know just about everything possible
about a draft speech in the dossier by former TD Colm
Keaveney: who wrote it, who in Red Flag suggested

changes to the speech, the date on which they were


engaged, where that happened and under what terms.
However, Mr Justice Mac Eochaidh refused.
OBrien had failed to persuade him that knowing the
identity of the Red Flag client would advance his
assertion that Red Flag had a motive to harm him.
OBrien had to prove relevance in this regard but had
failed.
The judge decided there were too many imponderables
and unknown outcomes to allow this.
Two other categories related to the alleged publication
of the dossier and here, Mr Justice Mac Eochaidh
delivered his bluntest comments.
The businessman claimed that questions from
journalists suggested they had seen the dossier, and
therefore it had been published, but the judge was
having none of it.
The plaintiff has failed to substantiate this claim in
any way, he ruled, adding that OBrien had not given
any details at all which would allow the court to say
whether actions of journalists were connected with the
dossier.

Very surprising

The plaintiff says that it was the activities of the


journalists which aroused his suspicion that there was
a conspiracy or campaign against him, and it is
therefore very surprising that no details at all provided
about his interaction with the journalists in question,
said the judge.
This is information which the plaintiff presumably has
at his fingertips and it may support the proposition
that the journalists had seen the dossier and therefore
that it had been published to them.
The omission of these potentially very relevant alleged
facts from the pleadings or from the correspondence

and affidavits grounding this application is odd.


The judge reminded everyone how he had pointedly
said a year ago that the full story as to how OBrien got
the dossier, which was on a USB memory stock, had
not been told. He said nothing had changed since.
The plaintiff has been aware, or ought to have been
aware, that he should provide a full explanation of how
the memory stick came to be in his possession or if he
cant do that, he should explain why this is not
possible.
He cannot rely of the alleged clandestine nature of the
defendants activities to explain the absence of
evidence about how the memory stick came to be in his
possession.
These facts are known to him.
Ruling against two further categories of discovery
sought, both relating to documents the defence might
use later, the judge said he would see both sides again
in January.
Outside the courtroom, two groups of lawyers and
client representatives huddled separately, poring over
the judgment and its implications.
Only one of them appeared happy.
The plantiff is appealing against the ruling.

http://www.irishtimes.com/news/ireland/irishnews/denis-o-brien-suffers-a-serious-setback-in-redflag-battle-1.2904474

Denis O'Brien
intends to appeal
High Court
disclosure ruling
Updated / Dec. 13, 2016

Mr O'Brien claims the material in the dossier is defamatory


of him

This is the actual article body

A spokesman for Denis O'Brien has said the


businessman intends to appeal a High Court
ruling refusing to order a public relations and
lobbying firm to disclose documents which
would reveal the identity of a client who
directed it to prepare a dossier about him.
Mr O'Brien began legal action against Red

Flag Consulting, its chief executive, Karl


Brophy, chairman Gavin O'Reilly and three
other members of staff last year.
He claimed they were involved in a
conspiracy to harm his interests and said
they compiled and wrote material in a dossier
about him on the instructions of a client.
He claims the material in the dossier is
defamatory of him.
Mr O'Brien said he had received the dossier,
anonymously, on a memory stick in an
envelope, in his office in Dublin.
The High Court also ruled it was "surprising"
that Mr O'Brien had not been able to provide
any information at all about how the memory
stick came to him, or why he had no
information about its "mysterious
appearance."
The defendants admitted they had produced
the dossier - which contained some original
documents and a number of articles from
various media organisations.
But they said it was not compiled to further
any conspiracy against Mr O'Brien or to
damage his interests.
Mr O'Brien sought the disclosure of
documents which would reveal the identity of
Red Flag's client.
His lawyers claimed revealing the identity of
the client would demonstrate that the client's
motivation was to injure Mr O'Brien.
But Mr Justice Colm Mac Eochaidh ruled the

identity of the client was not relevant to Mr


O'Brien's action against Red Flag.
He said there was no doubt that the
motivation of the defendants in producing
the dossier was a major issue in the case. But
the judge said knowing the client's identity
may be of great use to Mr O'Brien or it may
be wholly irrelevant.
And he said no basis had been established as
to why, if the motivation of Red Flag's client
was mischievous, then the mischievous
motivation was shared by Red Flag.
He said the most Mr O'Brien had been able to
say was that gaining the client's identity
might assist with proving the client's
motivation, which in turn might assist in
attributing that motivation to Red Flag in
compiling the dossier.
Mr Justice Mac Eochaidh said this fell short of
what was required by Mr O'Brien in this case.
The judge also ruled that Mr O'Brien was not
entitled to documents disclosing the identity
of those to whom the dossier was sent. Mr
O'Brien claims the dossier was defamatory
and was "published" to others.
The judge said Mr O'Brien had admitted his
claim in relation to publication "lacked
specificity" but had said the "clandestine
nature" of Red Flag's activities was the
reason for this.
Mr Justice Mac Eochaidh said he had ruled a
year ago that he had not been persuaded
that there was any evidence for him to be

certain that there had been any publication.


And he said Mr O'Brien had not provided any
additional information in this application to
persuade him to change his view.
Mr Justice Mac Eochaidh added that Mr
O'Brien had failed to substantiate a claim
that questions posed to him by journalists in
the run up to this action last year, indicated
that the journalists had seen the dossier.
He said Mr O'Brien had not given any details
at all of examples of the questions asked or
the identity of the journalists asking the
questions.
The judge said this was "surprising" because
Mr O'Brien had claimed it was the activities of
the journalists that had aroused his suspicion
that there was a conspiracy against him. The
omission of these potentially very relevant
facts was "odd", the judge said.
The judge said it was also surprising that Mr
O'Brien had not been able to provide any
information at all about how the memory
stick came to him.
He said Mr O'Brien had not even told the
court why he has no information about the
mysterious appearance of the memory
stick. He said he would not order the
disclosure of documents in relation to
publication of the dossier because of the
absence of information from Mr O'Brien on
this issue.
Mr Justice Mac Eochaidh said if Mr O'Brien
was entitled to the discovery of evidence

without which his case would fail, then every


plaintiff who believed he or she had a good
case, but lacked the evidence to prove it
would also be entitled to such discovery.
He said this would lead to litigants flooding
the courts with unsubstantiated claims,
hoping that applications for the disclosure of
documents would produce the evidence they
lacked.
The judge ruled Mr O'Brien was entitled to
communications between the defendants and
their client as these would reveal the nature
of their relationship.
But he said the disclosure should be limited
to communications relating to the dossier
and/or to Mr O'Brien.
He said that any disclosure ordered in this
category could be redacted to conceal
anything which may disclose the identity of
the client.
The case will be back in court again next
month, when costs and other issues will be
dealt with.
https://www.rte.ie/news/2016/1213/838552obrien-red-flag/

Red Flag accuses O'Brien

of 'fishing' expedition
Tim Healy
PUBLISHED
14/07/2016

1
Denis O'Brien Photo: Bloomberg

Red Flag Consulting has claimed that a court


application by Denis O'Brien, seeking the
disclosure of documents which would reveal
the identity of a client who commissioned it
to prepare a dossier on him, was a "fishing
expedition".
Counsel for Red Flag told the High Court yesterday the
application was "a pure fishing expedition" which ignored
confidentiality.
After hearing a second day of submissions and legal
argument, Mr Justice Colm Mac Eochaidh reserved his

decision on the discovery application, but said he hoped to


give his ruling by the end of this month.
Red Flag Consulting contends that it will suffer
"irreparable harm" if it is ordered to disclose documents to
Mr O'Brien, revealing the identity of the client who
commissioned it to prepare the dossier.
It has also disputed claims on behalf of Mr O'Brien that if
the client is a competitor of Mr O'Brien's or involved in
"bitter" litigation involving Mr O'Brien, or involved in the
planned Digicel initial share offering, then that was all
highly relevant to the businessman's claims of conspiracy
and that he was entitled to know the client's identity.
The relationship of confidentiality is crucial to Red Flag's
business and it will suffer "irreparable harm" if that is
breached, it has submitted.
The company has agreed to provide a range of documents,
including concerning the circumstances of its retainer
concerning the dossier, but argues that it is entitled to
maintain the client's confidentiality.
Michael Collins SC, for Red Flag, said the discovery
application was "a pure fishing expedition" to see what
else is out there.
"It is an attempt to cast a net and pull it ashore with a flag
on top saying 'motive'. It ignores confidentiality," he said.
Michael Cush SC, for Mr O'Brien, said the relevance of the
client's identity was manifest. Counsel previously said his
side wanted the client's identity, not just for his action
against Red Flag, alleging it conspired to damage him, but
because he also wanted to sue the client over alleged
conspiracy.
Mr O'Brien claims that "unrelentingly negative" material
in the dossier is defamatory and evidence of a conspiracy
to damage him personally and professionally.
Red Flag has denied defamation and conspiracy and said
Mr O'Brien has failed to establish evidence of publication
of the dossier.

http://www.independent.ie/irishnews/courts/red-flag-accuses-obrien-offishing-expedition-34882929.html

The Denis OBrien dossier:


what happened to the USB
memory stick?
Why did OBrien give the memory stick to Martin Coyne?
And who is Employee 18883?
Sat, Jul 23, 2016, 05:00 Updated: Mon, Jul 25, 2016, 09:30

Peter Murtagh

One question stands out among the many that arise in


the Denis OBrien versus Red Flag Consulting legal
action. Why did OBrien give the USB memory stick,
the sole piece of evidence upon which he launched his
extraordinary case by seeking a search and seize
warrant against Red Flag, to Martin Coyne, a man who
has no qualifications in computer forensics as claimed
and who has, according to experts who do have
precisely those skills, damaged that evidence to the
point of uselessness?
And in seeking to probe the many other questions
around that single imponderable, a new figure had
emerged in the saga to beguile those trying to make
sense of it all.
He is Employee 18883, a previously unknown
character in this opaque drama.

Envelope on desk

According to Denis OBriens version of events, he


Denis OBrien returned to his office, the
headquarters of Communicorp Group at 1 Grand Canal

Quay, Dublin, to find that an envelope, marked for his


attention, was sitting on his desk.
It is not known how it got there Communicorps
offices are protected by CCTV, so the person delivering
it to the building might have been caught on camera
and it is not known if any internal mail distribution
staff brought it to OBriens desk and might be able to
illuminate its provenance.
In any event, OBrien opened the envelope and says
that inside it, he found a USB memory stick. Written
on the inside of the envelope itself there was also, he
says, the access password for the stick, Chelsea10.
It was October 8th, 2015. Just two days before, the
bulk of some 339 individual files had been downloaded
from a Dropbox internet file-sharing account, where
they had been put by Red Flag for Mark Hollingsworth.
Hollingsworth is a sometime journalist who, unknown
to everyone he approached in Dublin between July and
September 2015 asking questions about the sources of
leaks about OBrien, was working with a London
corporate intelligence-gathering company named
Alaco.
Hollingsworth has acknowledged that the files given to
him by Red Flag made their way to Alaco. The 339 files
were mostly copies of articles that had appeared in
Irish and international media about OBrien his life
and career, and what the Moriarty tribunal said about
him and Michael Lowry.
There were also some original documents, a draft
speech by then Fianna Fil TD Colm Keaveney, as well
as profile and biographical material on OBrien, whose
tone and content made clear that they were not
authored by fans of the businessman.
It is not known how the files got on to the memory
stick and allegedly made their way to Denis OBriens
desk. But when later he saw them (and the precise date

of that revelation is also not known) he says he was


shocked, thought that they were simply extraordinary
and confirmed his long-held suspicion of a criminal
conspiracy to do him down.
OBrien says he gave the USB to his solicitor, Aidan
Eames, apparently without at that time reading the
contents, and within a day, it was passed to Espion, a
Sandyford-based company that specialises in
cybersecurity and digital forensic analysis.
Espion says it was asked to conduct a forensic analysis
of multiple documents found on an encrypted SanDisk
USB disc and to produce a report detailing the
properties and features of the multiple documents
on the stick.
Espions report, dated October 12th and which was the
basis of his legal action for which he swore his first
affidavit on October 13th, lists all the documents and
shows a particular interest in several, notably one
named DOB/Water and Siteserv and Bank
writeoffs/Irish Parliament statements and Inquiries,
others dealing with media coverage and Keaveneys
draft speech.
All the documents on the USB stick were held inside an
encrypted vault, in effect a digital folder, access to
which was protected by encryption.
Digital forensic investigation best practice guidelines,
enunciated by Acpo, the Association of Chief Police
Officers Association of England, Wales and Northern
Ireland, and adhered to by all reputable digital forensic
investigators, have it that an investigator should
digitally copy something under investigation, set the
original to one side and work only on the copy
probing it for date of creation, authorship, editing
history and last use, documenting everything that is
done, step by step and retain that copy too.
In this way, the original evidence remains pristine, or

unmolested, and can stand the rigours of being tested


in any legal action, including the most hotly contested
criminal trials.
This did not happen with the OBrien USB, however.
But far more serious than that sin of omission, were
sins of commission tampering with primary evidence
which were manifold.
On the afternoon of October 13th, lawyers acting for
OBrien had tried but failed to get their search and
seize order (it is called an Anton Pillar order) but were
granted instead what was a preservation order telling
Red Flag, in effect, not to destroy anything and also not
to reveal the existence of the order itself.
At 10.03 the next day, October 14th, as Red Flag was
preparing to go to court to respond to this edict,
several files in the encrypted vault on the USB stick
were accessed directly.
They include a folder named Irish Parliament
statements and Inquiries inside of which were the
following files: Anyone but Denis dont sell to Denis
OBrien.pdf, Fresh Siteserv row for IBRC.pdf, Irish
Minister for Finance kept in dark over siteserv
deal.pdf, Probe OBrien dealings with special IBRC
liquidator.pdf, Share trades spike before siteserv
deal.pdf, Siteserv delivers for Denis OBrien.pdf,
Siteserv sold to Denis OBrien firm for 45
million.pdf, Siteserv story digging for dirt.pdf,
Siteserv pulling the pieces together.pds, and State
memo slams sitreserv.pdf.
NOTES: 1. All tokens are represented by '$' sign in the template. 2. You can
write your code only wherever mentioned. 3. All occurrences of existing tokens
will be replaced by their appropriate values. 4. Blank lines will be removed
automatically. 5. Remove unnecessary comments before creating your
template.

Why these files were singled out, and by whom, is not


known. Equally, what, if anything, was done is
impossible to tell but the fact that the originals were
accessed which means that, in the world of crime scene
investigation, the evidence is no longer pristine.
Its a bit like a CSI investigator examining a piece of
DNA without wearing surgical gloves, said one
forensic analyst.
The precise whereabouts of the USB at 10.03 on
October 14th is unknown, at least to this reporter. But
later on that date, Denis OBriens lawyers were
arguing before Mr Justice Colm Mac Eochaidh, and
Red Flags lawyers, that all of the files on the USB
needed to be forensically imaged immediately because
their client OBrien feared that the evidence on
which his case was based the USB stick might be
tampered with.
And that is what happened but it was done by OBriens
agent, Martin Coyne, whose story keeps changing as
the Denis OBrien/Red Flag saga has unfolded.

The investigator

Denis OBrien and Martin Coyne know each other.


Coynes company, Digitpol, has worked for OBriens
company, Digicel, and what OBrien says are his
associated companies without specifying which one or
what services have been provided by Coyne/Digitpol.
OBrien says that in this instance, he asked Coyne to
further analyse the USB stick because of Digitpols
background as a digital investigations and cyber fraud
investigations business.
However, Coyne is not a digital forensic investigator.
He was employed once at the centre for cybersecurity

and cybercrime investigation in University College


Dublin. He does not have a degree and UCD has no
record of him achieving any qualification or
certification from the college, notwithstanding a sworn
affidavit assertion to the contrary from an Eames
solicitor.
Coynes talents, which even his critics acknowledge he
has, are in vehicle forensics extracting data from
vehicles involved in crashes.
His ideas sometimes had a flash of brilliance about
them. For instance, at UCD he was trying to develop a
surveillance gadget, of the sort police might attach to
the car of a criminal suspect to help monitor their
movements, that could leech power from the vehicle
itself, thereby extending its life well beyond the limits
of its own battery.
It was very clever, says one former colleague. But
hes a Walter Mitty character and this is the problem
with Martin.
Digitpol is a registered company with only one known
employee Martin Coyne. According to itself,
however, it has computer forensic laboratories in
New York, The Netherlands, Hong Kong and China.
The Irish Times visited the companys purported base
in Hong Kong, located in the impressive-sounding
Bank of America Tower in the citys Admiralty area. It
appears, however, to be an accommodation address
only, a place that forwards mail and messages, and
provides similar assistance to multiple companies.
The location, size and staffing, if any, of Digitpols labs
allegedly in New York and China are unknown.
In the Netherlands, the company, or rather Martin
Coyne, operates from a rather characterless-looking
office in a mundane business park in the commuter
town of Barendrecht, about 15km southeast of
Rotterdam.

It is from here that three reports have emanated, each


one attempting to explain what happened to the sole
body of evidence in Denis OBriens case against Red
Flag after the USB stick was taken there by Martin
Coyne on October 14th.
Two days after that, on October 16th, Mr Justice Mac
Eochaidh directed that the USB be given to Eames
solicitors forthwith, to be held by them and not
interfered with pending a full hearing of OBriens
conspiracy and defamation case against Red Flag.
ADVERTISEMENT

But far from being given to Eames forthwith, the USB


stick remained outside the jurisdiction of the High
Court for a full 10 days until October 26th during
which time files were accessed, deleted and altered in a
way and to a degree that qualified forensic digital
analysts say renders the USB as useless in evidential
terms. Eames has since asserted it asked for the return
of the stick before that date.
In his first report, dated January 21st, 2016, Martin
Coyne says that while the USB was in his office in
Barendrecht, it was taken in and out of a radio
frequency identification (RFID) safe, a secure place for
critical evidence, access to which was recorded and
signed by senior management.
Each version of Digitpols three reports, which Coyne
says were compiled from memory, shows nonetheless
what purports to be a printout of a log recording access
to the safe. It is headlined, somewhat stoutly in bold
lettering, Access Log to Vault.
While Coynes memory allows accurate recall down to
the precise minute 0601h, 1205h, 0605h, to give
examples much of the rest of his recall is faulty, on
his own admission.
The people accessing the safe and handling the USB
stick included in the first report Coyne and two

colleagues, named as R Smit and D Pinter. However, R


Smit appears to be a Rotterdam police vehicle
controller and cosmetics importer friend of Coyne,
while D Pinter appears to have been Coynes partner.
The revelation that Coyne was in fact in Riga, Latvia,
when the purported digital record of the RFID safe had
him in the Netherlands examining the USB, prompted
report number two, dated February 2nd, 2016.
On this, Coynes name was replaced by Smits for the
key dates.
But the revelation that Smit is in reality a Rotterdam
police vehicle controller gave birth in turn to report
number three, dated March 4th, 2016. The pair met
when Coyne did some vehicle crash investigation work
with the citys police department.
In this third report, Smit has vanished, to be replaced
by the intriguing employee number 18883, whose
shadow now falls across Denis OBriens USB stick
evidence.
In report number three, Coyne explains himself thus,
having reread reports one and two, which he himself
wrote: It was noted that certain inaccuracies were
contained in the prior reports and it was determined to
carry out a complete review and amend the prior
reports.
In this regard, in the previous reports, it was stated
that R Smit was the person that operated the safe. In
fact, R Smit was not the person that operated the safe.
For the avoidance of doubt, R Smit is an associate of
Digitpol but was not involved in this case. The person
that actually operated the safe is an associate of
Digitpol since 2013 and works solely in Digitpols
covert unit. In light of this associates role in Digitpols
covert unit, his current involvement in a sensitive
criminal investigation and the high degree of publicity
attaching to the current proceedings it is not proposed

to disclose this individuals identify further.


So what was employee number 18883 actually doing?
According to report number three, he was taking the
USB stick to the investigation team who decided to
deploy various software forensic tools, including one
named Cellebrite, to examine it.
From the other side of Europe, meanwhile, Coyne
himself deployed Cellebrite via a secured VPN
[virtual private network] tunnel from a remote location
in Riga, Latvia.
We asked a cautious digital forensic analyst about this.
It is probably not plausible, he said. You probably
could set up a remote connection that enabled you [do
this] but also, if you have a forensically [qualified]
individual there [in Rotterdam] with their hands on
this, it begs the question why you need to be remote
accessing it from another country in a really
convoluted manner? It is not possible to say that it
couldnt have happened but it does seem very odd.
But it is the cack-handed and invasive examination of
the USBs encrypted chamber that is most telling. The
team of digital forensic experts retained by Red Flag, a
US-headquartered company named Stroz Freidberg,
that was founded by former FBI agents and includes on
its staff former officers with Britains internal security
service, MI5, found the USB was contaminated and
altered significantly.
On October 24th, 2015, the day the USB was finally
returned to Dublin in compliance with the High Court
order, Coyne accessed the stick one last time and
ended up accidentally creating eight new files.
But it gets worse, said an analyst familiar with the
evidence in the case. Not only were these files created,
Digitpol then deleted them. Their eventual explanation
was this was an accident, caused by incompetence.
Theyre saying that when they were using Cellebrite to

copy the device, but when youre copying, you say


heres what Im copying from and heres what Im
copying to. But you have to tell Cellebrite which is
which, so youve got two connections, and they got it
the wrong way around. . . What Digitpol did was try to
delete the evidence of what theyd done; so they
deleted the files back off and didnt document it!
It was not until December 11th that Stroz got access to
the USB stick and uncovered what had been done to it.
Martin Coynes role as keeper of the USB stick for 10
crucial days remained unknown to all bar OBriens
side until January 21st 100 days after the case began.

Litigation focus

The focus of OBriens litigation against Red Flag has


shifted somewhat in recent weeks to his seeking a High
Court order for discovery the legal power to obtain
from Red Flag all documents relevant to the case and,
in particular, the identity of Red Flags client on whose
behalf the dossier of documents on the USB stick was
created.
Meanwhile in Barendrecht, Digitpols European
headquarters are strangely quiet. Number 73 Ebweg is
a rectangular-shaped, two-storey, semi-detached
premises, almost identical to every other black metal
and deep brown building in the small business park.
There is no nameplate but above the door, in a firstfloor window, there a small telescope similar to those
favoured by birdwatchers, and a CCTV camera lens.
The blinds are drawn but behind the entrance door is
an office with a dark interior. There is a large black TV
screen mounted on a wall and, in the centre of the
room, a glass-top conference table and four chairs.
The room is otherwise bare. The rear of the building
appears to be a separate premises, number 51. It is like
a lock-up garage and inside an ageing VW car is having

its battery charged in a room cluttered with aluminium


tubing and personal gym equipment.
Martin Coyne is an affable and not unfriendly man. In
a brief encounter four weeks ago as he arrived for
work, he explained that he was unable to discuss the
case.
OBriens case against Red Flag was engaging, though,
he remarked.
I think its an interesting case and I think theres a lot
of qualities in it, you know, he said. I mean, on one
hand, its amazing that these people [Red Flag] put
such documents together.
He felt certain that witnesses Smit, Pinter and
employee number 18883 would give evidence at
the trial, when eventually it takes place.
Well, Id imagine if the judge requires it, they would,
yeah, he said.
The all too brief chat turned to an inquiry about his
qualifications.
Hows the weather in Ireland? he responded.
Theres always less wind here.

Denis OBrien versus Red Flag Consulting

Denis OBrien claims that Red Flag, a Dublin-based PR


company, assembled a dossier of files on him and that
this fact, together with the files themselves, shows
there is a criminal conspiracy to damage him and his
businesses, and to defame him. The dossier is
contained on a USB memory stick that is at the centre
of his High Court action against the firm.
Red Flag denies this and has refused to name the client
on whose behalf the dossier was assembled.
Much of the animus directed at OBrien, generally and
in the dossier, concerns the 2011 findings, by the
Moriarty tribunal, that then minister for
communications Michael Lowry secured the winning,

for OBrien, of the 1995 mobile telephone licence by


imparting to OBrien information of significant value
and assistance to him in securing the licence.
The tribunal found that OBrien made payments to
Lowry in 1996 and 1999.
OBrien and Lowry have always denied any
wrongdoing and dismissed the tribunal findings, which
OBrien says is merely an opinion. Some other files in
the dossier refer to SiteServ, a company bought by
OBrien, and IBRC, a bank used by OBrien.
Comments on both subjects have drawn furious
reactions from the businessman, including several
legal actions, including against the Oireachtas.

http://www.irishtimes.com/news/the-denis-obrien-dossier-what-happened-to-the-usbmemory-stick-1.2731837