Inadvertent production of confidential documents: ERA v Armstrong (2013) 303 ALR 199

At present the New South Wales, Queensland, South Australia and Western Australia Solicitors’ Rules require the return of documents to an opponent where there is inadvertent disclosure of confidential documents. The High Court recently commented that such a rule should not be necessary as “in the not too distant past it was understood that acting in this way obviates unnecessary and costly interlocutory applications” (Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 303 ALR 199 (“ERA v Armstrong”))

In ERA v Armstrong a firm of solicitors, Norton Rose, gave general discovery on behalf of a client. This included 13 documents that the client intended to claim privilege over, but which were inadvertently listed as non-privileged and produced for inspection. The error appeared to result from a mistake in the process of reviewing and identifying documents in large-scale discovery. On receipt of the documents Marque Lawyers sent a letter to Norton Rose stating that there was an inconsistency in the discovery as some communications were disclosed, but others were the subject of a claim for privilege. Norton Rose wrote to Marque Lawyers stating that the production was a mistake and requested the documents be returned. Marque Lawyers refused to return the documents and said that any privilege attaching to them had been waived.

Marque Lawyers was successful in the New South Wales Supreme Court and Court of Appeal. On appeal the High Court of Australia unanimously ordered the return of the documents to Norton Rose. The High Court noted that times have changed since the decision of Slade LJ in Guinness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 1 WLR 1027 at 1044. and case management concerns, including specific case management powers in the rules (in ERA v Armstrong, the CPA NSW ss 56, 57, 58 and 59) now give courts the power to order the return of the documents to further the “overriding purpose”, that is, the just, quick and cheap resolution of the real issues in the dispute or proceedings (ERA v Armstrong, [56], [57]). The High Court considered the pursuit of satellite interlocutory proceedings, in circumstances where the discovery dispute was a minor issue and offered very little advantage to the recipient, would not fulfill the overriding purpose and is the kind of conduct to be avoided (ERA v Armstrong, [59]). Also, a mistake had been made and this fact was not disputed. As such, there was no question of waiver sufficient to be agitated, and it was necessary that the mistake be corrected and the parties continue with their preparation for trial (ERA v Armstrong, [60] - [63]).

Waiver of privilege in a pleading - Towercom Pty Ltd v Fahour [2011] VSC 455

The matter of Towercom Pty Ltd v Fahour [2011] VSC 455 was an appeal from an Associate Judge to Macaulay J of the Supreme Court of Victoria. In the proceeding the defendant alleged that the plaintiff caused it loss by selling a property at an undervalue. The defendant sought disclosure of an expert report prepared for the plaintiff. The expert report was said to be the report which arrived at the loss alleged in the statement of claim. The only element from the report that was disclosed in the statement of claim was the loss, being the difference between the sale price and the alleged market value.

The defendant sought disclosure of the report under s26(1) of the Civil Procedure Act 2010 (Vic) (the CPA) and, by reason of the refusal to disclose, sought an order under s29. The plaintiff claimed privilege over the report, but the defendant said that privilege had been waived by inclusion of the loss figure from the report in the statement of claim.

The Court held that the inclusion of the loss figure was not inconsistent with the maintenance of privilege, and therefore declined to order its disclosure. I have included a discussion and extracts of this matter below.

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.

Hodgson v Amcor Ltd; Amcor Ltd v Barnes & Ors (No 4) [2011] VSC 269 - privilege and improperly obtained evidence

The matter of Hodgson v Amcor Ltd; Amcor Ltd v Barnes & Ors (No 4) [2011] VSC 269 (Hodgson v Amcor) was a ruling in the Supreme Court of Victoria by Vickery J on whether a letter of advice from a solicitor (Mr Dillman) to the plaintiff (Mr Hodgson) could be tendered in evidence. The ruling is chock full of useful discussions on issues relating to subpoenas, privilege and the use of improperly obtained evidence.

The defendants (Amcor) sought to use the letter of advice in cross examination and objection was made to that use by the plaintiff under s118 of the Evidence Act 2008 (Vic) (the Evidence Act) and s138 of the Evidence Act. Amcor said that it could use the letter by reason of the plaintiff acting inconsistently with the maintenance of a claim of privilege by the following conduct:

1. The letter of advice was received by two third parties.
2. The letter of advice was listed in a supplementary affidavit of documents and the plaintiff did not object to it being listed in that document.
3. The letter of advice was referred to in the opening address of Amcor's senior counsel and the plaintiff did not object to it being referred to.

On the basis of the above conduct, Amcor said that legal professional privilege was lost by operation of s122 of the Evidence Act. The Court disagreed. I have included a case summary and discussion below.

Samenic Ltd v APM Group (Aust) Pty Ltd [2011] VSC 194 - privilege in an investigator's report

The matter of Samenic Ltd v APM Group (Aust) Pty Ltd [2011] VSC 194 (Samenic) concerned an objection to a subpoena before Mukhtar AsJ of the Supreme Court of Victoria. I have included a summary of Samenic below.

At [1] Mukhtar AsJ set out the question being considered by the Court:

The Prothonotary has referred to the Court for hearing and determination an objection to a subpoena for production of documents. The objection involves something which is not uncommon in litigation where insurers are involved, that is, a litigant trying to get hold of an insurance investigator’s report after an insured incident has occurred. The question on this objection concerns legal advice privilege ― not litigation privilege ― under s 118 of the Evidence Act. Does this subpoena result in the disclosure of the contents of a confidential document prepared by another person (the subpoenaed party) for the dominant purpose of the lawyer providing legal advice to the client (the insurer)?

Expert evidence 104 - loss of legal professional privilege

In my previous post on the topic of expert evidence, 'Expert evidence 103 - Formal report requirements', I noted that when an expert report is relied on and served on the other side, then this usually results in the loss of legal professional privilege (LPP) in the expert report and the instructions to the expert.

Sometimes experts say things in their reports (or drafts of reports) which aren't helpful to your case. In that situation, you may not want to disclose this information. So can you avoid having to disclose certain information from an expert? In this article I discuss LPP in expert reports and when it is lost.

Privilege, expert witnesses and the Evidence Act 2008 (Vic)

In Roads Corporation v Love [2010] VSC 253 (Love) the Supreme Court of Victoria considered the circumstances in which privilege is wavied when a party communicates with expert witnesses in conference.

In Love, counsel for the applicant sought at the trial to cross examine an expert witness on a document, being an 'agenda' which was prepared for a 2006 conference between the respondent, the expert witness, other expert witnesses and the respondent's lawyers. The 'agenda' suggested that the 2006 conference was called for the purpose of getting the expert witnesses to agree on a crucial issue in the trial. The applicant sought to adduce evidence of what was discussed at this 2006 conference. The applicant also sought to tender several documents relating to a 2004 conference with another expert witness. Both experts were called to give evidence at the trial on behalf of the respondent.