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to hear the arguments. He was a former chair of the Copyright Tribunal, a lecturer at the University of Auckland’s Faculty of Law, and author of an internationally regarded book on internet law.

The other aspect was what access to “discovery” evidence meant. It defined the tipping point of the extradition process and the role the New Zealand courts should play in that. In approaching it, Judge Harvey deconstructed the process through which Dotcom and the others would pass — and asked, in effect, whether it saw New Zealand courts rubberstamping the extradition through the international agreement signed with the United States.

The international extradition agreement worked on a presumption of faith in each other’s court systems — effectively that New Zealand believed the US would conduct a free and fair trial during which the charges would be argued through a defence. It meant the US would present to court an argument that there was enough evidence to compel a defendant — in this case the Megaupload team — to appear in a US court where the case would be argued. The US presented only the argument — not the evidence — and the argument was called a “Record of case” (ROC). As a summary of the US case, it would tell the NZ court the outline of the case which was to be answered.

If it made for a case which appeared to have substance, then it triggered the extradition clause and sent Dotcom and his colleagues to the US for trial. There was no need to reach any balance of proof in doing so — the ROC (pronounced Rock) produced at court was not one against which the defendants would offer argument. It was, Harvey said in summary, “deemed to be and is presumed to be reliable”. The US told Harvey there could only be discovery where it could be shown the Record of Case was unreliable in some regards or crossed the Bill of Rights Act. Even then, it had been argued by the US, any discovery would have to be limited to those issues.

The framework inside which the extradition functioned appeared to offer little room in which to move. It was Dotcom’s contention that the evidence produced had been twisted and misrepresented in a way which could be clearly illustrated. To do this, though, he would need access to source information which could be used to show the context in which the US claims existed.

Dotcom’s lawyer Davison argued the process should not be a “rubber stamp” and the US must be able to show there was a case to answer. He pointed to Australia and the United Kingdom, where there was “extradition on request without evidence”. The next level down was the ROC regime, where the presentation of a case by the US — the extraditing country in this case — shouldn’t be accepted without question. It should be tested, he argued, and in doing so there must be an ability to access evidence against the accused. It was difficult for

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