Thursday, August 11, 2011

Redaction principles reviewed in Octagon Inc v Hewitt & Anor (No 2) [2011] VSC 373

The matter of Octagon Inc v Hewitt & Anor (No 2) [2011] VSC 373 was a hearing before Dixon J in the Supreme Court of Victoria concerning adequacy of inspection of discovered documents that were redacted. It is a useful case because of the summary of the principles concerning redacted documents in discovery. For my readers' information, redaction is the act of blanking out part of a document because that part of the document is claimed to be irrelevant, privileged and/or confidential.

I have included a case summary and extract concerning redaction below.

The matter was an action by a US company called Octagon Inc against Lleyton Hewitt and his companies, and a counterclaim by the Hewitt parties for breach of contract. Octagon Inc is said to be a company that managed Hewitt's financial affairs. The redactions were of financial statements of Octagon Inc which it said were confidential and irrelevant. The Hewitt parties said they could be relevant on quantum.

At [32] and [33] Dixon J set out a summary of the principles for redaction, which were extensively discussed in Gunns Ltd and Ors v Alexander Marr and Ors [2008] VSC 464 (a matter in which my mentor, Richard Attiwill, appeared):

32 The principles applicable to the redaction of documents produced for inspection were recently surveyed by Kaye J in Gunns Ltd and Ors v Alexander Marr and Ors. These principles were not in issue before me. In summary, the discovering party is prima facie required to produce for inspection the whole of the document being discovered by it, even where parts of the document are irrelevant. The practice of sealing up or masking irrelevant parts of the document is long established, particularly where the discovering party has a legitimate claim to confidentiality in the irrelevant part of the document. Ultimately, the onus to establish an appropriate basis for redaction rests with the party resisting production of the whole of the document. Where redactions are in dispute it is for the court to determine, on the material before it, whether that party has a right to do so. In making that determination, the court will focus on ensuring the attainment of justice between the parties. That the rules of court are designed to serve and enhance the ends of justice, and to facilitate the resolution and determination of disputes between parties, has recently been emphasised by the provisions of the Civil Procedure Act 2010 (Vic).

33 Various considerations can arise. For example, redaction of irrelevant parts of a document ought not create gaps affecting the intelligibility or meaning of the unredacted portions of the document. The court will not permit the coercive nature of the discovery process to infringe genuine interests of privacy and confidentiality for no legitimate purpose. However, as the decision of the Court of Appeal in Mobil Oil Australia Pty Ltd and Anor v Guina Developments Pty Ltd and Anor demonstrates, denying inspection may not be the appropriate method of attaining justice between the parties.

In this matter, the claims for redactions were denied and Octagon Inc was ordered to produce for inspection the whole of the documents. This was ordered because Dixon J considered that the claim for confidentiality was inadequate, and relevance alone was not a sufficient basis for redaction (at [52] to [57]).

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