Application to Provide Redacted Discovery Disputed by the Parties
MARZEC -v- FIELDPARK PTY LTD [2021] WASC 324 (24 September 2021)
The defendants applied by way of chamber summons for leave to provide discovery of 159 documents in redacted form. The plaintiffs provided Confidentiality Undertakings to the defendants who submitted that the documents contain confidential information which should be protected from disclosure to the plaintiffs' expert. However, the plaintiffs' counsel submitted that the defendants had not provided any evidence as to how confidentiality of the relevant material was preserved in the organisation. The Court, in ruling on this case, assessed whether or not the documents are discoverable and commercially sensitive.
Facts:
The plaintiffs' claim against the defendants relates to their two plantations, called Taylor's Park 6 (TP6) and Cadell. The defendants refer to two of the original categories of discovery which were ordered on 23 February 2021 (Discovery Orders) in which they were ordered to discover documents relevant to plantation monitoring at TP6 and the value of each of the plaintiffs' plantations between 2018 and 2020. Difficulty has arisen because many of the defendants' documents are large spreadsheets. The defendants expressly, and properly, disclaimed any suggestion that the plaintiffs' expert may consciously improperly use documents the subject of the Confidentiality Undertakings.
The defendants applied by way of chamber summons dated 1 September 2021 for leave to provide discovery of 159 documents in redacted form. This is by providing masked or redacted copies of the documents contained in the schedule annexed on the condition that an unmasked or unredacted copy of the documents be provided to the plaintiffs’ legal representatives only. The defendants' counsel sought leave to file a further application by way of amended chamber summons dated 16 September 2021 seeking orders that the plaintiffs' expert, Mr Wright, destroy the 34 documents referred to in Mr del Gallego's affidavit sworn 13 September 2021 (Unredacted Documents), provided to him by the plaintiffs' solicitors. The plaintiffs' counsel did not oppose the grant of leave to file the further application and leave was granted.
Once a large spreadsheet is converted to pdf, and, subsequently, redacted, it becomes almost unreadable. The plaintiffs and their expert provided Confidentiality Undertakings to the defendants on or around 6 August 2021 providing that they will not use the Documents or the contents of such Documents for any purpose other than the conduct of the Proceedings. This undertaking is said to not prevent them from disclosing material which is in the public domain or comes into the public domain, unless the material comes into the public domain because of a breach of this undertaking. The defendants filed affidavits of Alistair David John Stevens sworn 9 September 2021 (Stevens Affidavit) and John Alexander Louden sworn 16 September 2021 (Louden Affidavit).
The plaintiffs filed affidavits of Martin del Gallego sworn 6 September 2021 (Del Gallego Affidavit 1) and Martin del Gallego sworn 13 September 2021 (Del Gallego Affidavit 2). The defendants were ordered to provide to the court and the plaintiffs' solicitors the documents grouped into categories to assume redaction was found to be appropriate. The documents consist of 108 spreadsheets and 51 various other documents. The defendants say that the categories of documents are:
- Biological asset valuation model (valuation model); and
- Data as to the performance of each of the plantation with the Quintis estate (inventory data).
The defendants submit that parts of the documents do not correspond to categories 11 and 13 of the Discovery Orders, and are not therefore discoverable pursuant to those orders. Furthermore, the documents contain confidential information which should be protected from disclosure to the plaintiffs' expert. The plaintiffs' counsel submitted that the defendants had not provided any evidence as to how confidentiality of the relevant material was preserved in the organisation.
Issues:
I. Whether or not documents are discoverable.
II. Whether or not discovered documents are confidential or commercially sensitive.
III. Whether or not indemnity costs should be awarded on application for redaction.
Applicable law:
Rules of the Supreme Court 1971 (WA) - have as their aim the elimination of delay between the commencement and final determination of an action, and management and supervision of actions in this court with the objects of promoting the just determination of litigation and efficient disposal of the business of the court.
Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd [No 3] [2009] WASC 67- where Martin CJ said that 'while it is open to a party providing inspection of documents to mask a document provided, in the event of contention, that party will carry the onus of satisfying the court that masking the document was appropriate'.
Alcoa of Australia Ltd v Apache Energy Ltd [2014] WASCA 148 ('Apache') - sets out propositions 'established by authority and uncontroversial' in terms of restricting access to discovered documents.
Alcoa of Australia Ltd v Apache Energy Ltd [2014] WASCA 148 ('Apache') [57] - provides that the exercise of the discretion will be informed by the nature and scope of the proposed limitations, restrictions or conditions on the inspection of discovered documents.
Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 at [107] - [108] - provides that a party to whom documents are produced on discovery or pursuant to an order of the court is under an obligation not to use them or any information derived from them for a purpose unrelated to the conduct of proceedings.
Alcoa of Australia Ltd v Apache Energy Ltd [2014] WASCA 148 ('Apache') - a matter in which the defendants could have reasonable concerns with respect to enforceability of the Confidentiality Undertakings where there could reasonably be concerns with respect to widespread dissemination within large organisations.
Analysis:
The defendants' counsel informed the court that the defendants reviewed 100,000 documents for discovery. 14,000 have been discovered. That shows either too broad a scope of original review, or admirable dedication to the task. Either way, only 14% of the reviewed documents were found to be discoverable. Of those 14,000, only 159 are said to be confidential or not within the scope of the discovery orders and therefore requiring redaction.
The plaintiffs submitted that the category 13 documents, relating to the value of the plaintiffs' plantations between 2018 and 2020 should not be limited solely to the plaintiffs' plantations. Comparable data is required to make a meaningful assessment of loss, given that the defendants have put the issue of default in neighbouring plantations in issue, any difference in value between the plaintiffs' and neighbouring plantations may also be relevant to liability. As to the category 11 documents, the defendants are not prejudiced or disadvantaged by providing that information to the plaintiffs by way of discovery as there are significant safeguards in place which protect the confidentiality of that information. The plaintiffs in this case are an individual, two corporate trustees of family trusts and the expert is a single individual.
Concerns as to widespread dissemination of confidential information outside the jurisdiction (or even within it) are adequately addressed by existing safeguards. The assertion as to the nature of the material said to be confidential requiring redaction was made in broad terms by a person who spoke to what he understood to be the impact of its release, but not the nature of the material itself. The only evidence provided with respect to the relationship between the plaintiffs' expert and trade competitors was to the effect that the plaintiffs' expert has in the past consulted to those competitors. No evidence was adduced showing that the plaintiffs' expert is a 'mouthpiece' or of any publications or public utterances which may lead to that conclusion.
The defendants oppose an order for indemnity costs on the basis that past defaults are irrelevant and that an indemnity costs order should not be punitive. Indemnity costs order should not be punitive or look back to past defaults.
Conclusion:
The Court concluded that there is no basis to redact the documents just to remove certain information. It was found that the confidential information does not attract protection from disclosure to the plaintiffs' expert in the context of litigation, the existing and substantive Harman undertaking, and express and enforceable Confidentiality Undertakings. The Court dismissed the application. The defendants are to pay plaintiffs' costs of both applications, to be taxed, if not agreed.
