Dotcom can see one file of 22 million, says FBI

KIM DOTCOM: The Megaupload founder wants all irrelevant material seized in the raids to be returned.
KIM DOTCOM: The Megaupload founder wants all irrelevant material seized in the raids to be returned.

A 40-page document "cherry-picked" from nearly 22 million emails is the only information the FBI believes should be made available to Kim Dotcom before his extradition hearing.

Lawyers spent yesterday arguing over what the internet mogul will be able to see before the case, set to begin next month.

With the deadline drawing closer and lawyers on both sides unable to reach a compromise, it seems increasingly likely proceedings will be delayed.

Dotcom said he believed the delays were deliberate. "Everyone can see there is a strategy of delay on the part of the US Government and the Crown."

Yesterday's hearing came after Judge David Harvey decided in May that Dotcom should have access to information collated against him by the FBI.

The United States Government then called for a review of that decision, saying it was outside the treaty agreement New Zealand had with the US on extradition.

Dotcom's legal team, headed by Paul Davison, QC, says disclosure is vital for the defence. Otherwise, counsel would be arguing with "their hands tied behind their backs".

At the centre of the argument is a document called the "Record of Case", effectively a summary of the FBI information relevant to the case. It is subject to a non-publication order, but the defence team revealed yesterday it was a summary document from more than 22 million emails obtained by the FBI.

Guyon Foley, lawyer for Dotcom's co-accused trio of Finn Batato, Mathias Ortmann and Bram van der Kolk, said it "cherry-picked" from emails and did not provide a fair amount of information on which the defence could base its argument.

Mr Davison did not see why the rest of the information could not be provided, given that it was electronic. "It's just a case of putting it on a device and delivering it."

The defence team only wanted material relevant to the case, he said. "This is not a fishing expedition."

Crown lawyer John Pike argued that there was no need for Dotcom to have access because he was not being tried in New Zealand.

The judge in the extradition case needed only to decide if there was a case for him to answer in the US, Mr Pike said, and that question was answered by the record of case.

Mr Pike said to be eligible for disclosure, there was a threshold to be reached, and Dotcom's case did not meet that threshold.

"In making that determination the judge erred both in law and in principle," he said.

Earlier, the court heard that the officers who raided Dotcom's Coatesville mansion in January may have to take the stand and give evidence as part of a separate judicial review process.

The warrants that authorised the searches, carried out by New Zealand police for the FBI, were deemed illegal in a judgment delivered last week by High Court judge Helen Winkelmann. She also ruled it was unlawful for copies of Dotcom's computer data to be taken offshore. Lawyers for Dotcom and the Crown must now decide how to resolve the dispute.

Both camps sought leave to file affidavits in relation to the case and will do so by Monday.

Dotcom may also file an affidavit about what happened at his home on the day of the raids.

Mr Davison said his client had strong views on the actions of police.


Kim Dotcom accuses United States Vice-President Joe Biden of masterminding the case against him.

Dotcom says Hollywood bigwigs pressured the US Government to take down his website in a series of meetings about six months before the raids at his Auckland home.

He said he had information documenting meetings between studio executives and Biden, with one executive, the Motion Picture Association's Asia managing director, Mike Ellis, also meeting with former justice minister Simon Power.

Dotcom said he was in the process of creating a website to publish all the information, so the public could see for themselves.

Fairfax Media