The aforesaid relates to this stage of the hearing, when at the next stage, if the Applicant files a motion to certify a derivative action on behalf of Bezeq against its officers, the Applicant will have to deal with the entirety of Bezeq's claims (including the claims that the violations that were found to have been committed by Bezeq were specific violations that stemmed from the difficulty in implementing the reform and not from a policy of intentional violation) with a higher evidentiary standard.
The documents requested for disclosure in the application
- The fact that the applicant has lifted the burden imposed on him does not necessarily mean that the court will grant his request in full with respect to all the documents requested by him. After it has been determined that the applicant has lifted the burden, it is necessary to examine all the documents that were requested and to clarify which documents are relevant to the discussion of the possible application for approval that the applicant will submit, and what is the degree of burden involved in disclosing them from Bezeq's point of view. The said examination will take into account the preliminary stage in which the hearing is located, and the purpose of discovery at this stage – to assist the applicant in submitting a full and mature application for approval; Or, alternatively, to convince him that such a request is unlikely.
Therefore, we will examine the specific documents that are the subject of the request accordingly.
- S. 98 of the application –Details about the reform. The Applicant petitioned in this framework that the Company would disclose to him the identity of the employees who were involved in the implementation of the reform, while describing the role of each of them; A description of the procedures taken against the officers responsible for implementing the reform; The identity of the organ or officer responsible for implementing the reform; and details about the benefit created by the harm to any of the officers.
I do not grant the request – this is a request to provide details and not a request for disclosure of existing documents. Such an application is not included in the provision of section 198A of the Companies Law. As a rule, a process of document discovery is intended for the discovery of existing documents and does not include a duty to produce documents that do not exist (see, for example, LCA 6715/05 Mazsanei Aruva Naaman Ltd. v. Eisenberg, IsrSC 60(3) 264, 270 (2005)). Even in the framework of a request for discovery of documents that precedes the filing of an application for approval of a derivative claim, the aforesaid rule should not deviate, and therefore there is no reason to obligate the company to produce documents for the applicant if these documents do not exist.
- Section 99.1 of the application – All documents related to the implementation of the reform, including events that are the subject of the Supervision Report - This is a comprehensive and burdensome request that I believe should therefore not be granted. A request for disclosure – certainly at this stage of the hearing – should be concrete and relate as much as possible to specific documents.
- Section 99.1.1 of the application – Documents relating to correspondence exchanged between the company and third parties in connection with the implementation of the reform and the events that are the subject of the Supervision Report: I am of the opinion that this request should not be granted either, which is also a comprehensive request. Moreover, the Applicant also did not clarify the relevance of the said documents and their importance for the future examination of the application for approval. He did not explain why correspondence between Bezeq and third parties (any) is relevant to examining the question of whether Bezeq's officers outlined an internal policy regarding a deliberate violation of the regulator's directives.
- Clause 99.1.2 of the application – Examination or examination reports in connection with the implementation of the reform - This included a petition to receive information about the events that are the subject of the Supervision Report, including economic and accounting examinations, legal opinions, etc. I am of the opinion that there is no reason to grant the request at this stage. This is a very broad request, which includes, among other things, documents that ostensibly enjoy confidentiality (e.g., legal opinions). The relevance of these documents is indirect – they may attest to the implications of the reform from Bezeq's point of view, but not necessarily to Bezeq's intention to violate the regulator's directives. Therefore, a consideration of the aforesaid considerations leads to the conclusion that the applicant's request should not be granted.
- Section 99.2 of the application – Internal audit reports, inspection reports or documents prepared in connection with the implementation of the reform, including events that are the subject of the Supervision Report - I am of the opinion that this request should be granted. This is a targeted request regarding the company's reports, which, if they exist, are likely to shed light on Bezeq's moves and its intentions regarding the possible implementation of the provisions of the license file.
- Section 99.3 of the application – Minutes, transcripts of conversations and summaries of meetings of the company's board of directors or the company's organ responsible for implementing the reform in relation to the implementation of the reform or the events that are the subject of the supervision report - The aforementioned documents may be relevant for examining the question underlying the applicant's claims. At the same time, this is a broad request, and it is possible that some of the minutes also relate to other issues that are not related to the request for approval. Therefore, I am of the opinion that the request should be granted only partially. I therefore instruct Bezeq to disclose to the applicant the minutes of the company's board of directors' deliberations in connection with the implementation of the reform. Insofar as there is a protocol that relates only partially to the implementation of the reform, Bezeq will disclose only the relevant part of the protocol.
- Section 99.4 of the application – Guidelines, procedures and internal documents of the company in connection with the implementation of the reform and with the events that are the subject of the Supervision Report - I am of the opinion that this request should be granted for reasons similar to those stated in relation to the documents in paragraph 99.2 of the application.
- Conclusion – In light of all of the above, I instruct Bezeq to present the applicant with the following documents within 30 days from today:
- Internal audit reports, inspection reports or documents prepared by the Company in connection with the implementation of the reform, including events that are the subject of the Supervision Report.
- Minutes of the company's board of directors discussions relating to the implementation of the reform or the events that are the subject of the Supervision Report.
- Guidelines, procedures, and internal documents prepared by the Company in connection with the implementation of the reform and the events that are the subject of the Supervision Report.
The documents will be transferred to the Applicant's counsel, subject to a declaration on his behalf and on behalf of the Applicant that the Applicant or anyone on its behalf will not disclose the contents of the documents and will not make any use of them in any way, except for the purposes of examining the possibility of submitting a request to certify a derivative claim on behalf of the Company.