Kim Dotcom gets access to documentary evidence

BANGALORE, India — A court in New Zealand has granted Kim Dotcom, founder of the Megaupload file-sharing site, access to documents which contain evidence against him, and are held by prosecuting authorities both in New Zealand and the U.S.

“A denial of the provision of information that could enable a proper adversarial hearing in my view would amount to a denial of the opportunity to contest and that would effectively mean that the process is one sided…,” District Court Judge David J. Harvey said in his ruling on Tuesday.

“In my view there must be fairness at the hearing and a balance must be struck, otherwise the ROC (record of case) becomes dominant virtually to the exclusion of everything else and places the extradition process in danger of becoming an administrative one rather than judicial,” he added.

U.S. prosecutors filed in March papers at the North Shore District Court in Auckland, seeking the extradition of Dotcom and three colleagues, who are charged in the U.S. with allegedly running a criminal enterprise responsible for online piracy of numerous types of copyrighted works. An extradition hearing has been set for August 6.

Dotcom claimed that he was entitled to disclosure in the particular circumstances of the case, irrespective of whether general disclosure is required in extradition cases more generally. The application was opposed by the U.S. government.

The documents that are sought relate to charges against Dotcom of criminal breach of copyright, money laundering, racketeering, and wire fraud.

All of Dotcom’s information and records were contained on computers or on servers which were removed from his premises or his control as the result of the actions of the New Zealand police and the U.S. authorities in other countries in January, Judge Harvey said. Dotcom simply does not have access to information which may assist him in preparation for trial, he added.

Dotcom and colleagues, and two companies including Megaupload, were indicted by a grand jury in the Eastern District of Virginia on Jan. 5, and charged with engaging in a racketeering conspiracy, conspiring to commit copyright infringement and money laundering, and two substantive counts of criminal copyright infringement, according to the U.S. Department of Justice.

Dotcom and colleagues Finn Batato, Mathias Ortmann and Bram van der Kolk were arrested in Auckland by New Zealand authorities, who executed provisional arrest warrants requested by the U.S.

In considering the documents that could be made available to Dotcom, Judge Harvey however ruled against a request by Dotcom’s counsel that disclosure should include all investigative records including but not limited to notebooks, the notes and records of communications by which investigators obtained, received or recorded material and information relevant to the investigation.

“In my view this goes beyond the limited scope of disclosure anticipated for the purposes of conducting a proper and informative extradition hearing,” the Judge said. He however allowed access to documents relating to criminal breach of copyright, money laundering, racketeering, and wire fraud.

The disclosure is to be made within 21 days of the date of the ruling. Counsels for both sides could not be immediately reached for comment.

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