Legg, Michael; Dopson, Lara --- "Discovery in the Information Age-The Interaction of ESI, Cloud Computing and Social Media with Discovery, Depositions and Privilege" [2012] UNSWLRS 11

Last Updated: 10 May 2012

Discovery in the Information Age--The Interaction of ESI, Cloud Computing and Social Media with Discovery, Depositions and Privilege

Michael Legg, University of New South Wales^[+]

Lara Dopson, University of New South Wales^[*]

Citation

This paper may be referenced as [2012] UNSWLRS 11.

Abstract

Electronically stored information (ESI) has prompted a wholesale change in legal culture because information technology and telecommunications have rapidly increased the volume of potentially relevant material leading to the legal profession and courts needing to find new ways to efficiently conduct the discovery process.

In this information age documentation relating to a case is not simply stored in manila folders and filing cabinets, but it is stored electronically in various forms and in a range of (virtual) locations. ESI is data that is stored on an electronic medium, usually a computer or server, and which is accessed through some form of computer program. For example it includes an email, database, Word document, PowerPoint presentation or spreadsheet. ESI by its nature is voluminous as it is easily duplicated. It has replaced the telephone, postal service, face-to-face meetings and even conversations. It can be difficult (although not impossible) to delete. It gives rise to metadata or data about data. ESI is also dynamic; the information can change with time or through the routine operations of the information technology environment, and frequently is incomprehensible when separated from the system that created it.

The volume of ESI is particularly significant for discovery purposes as traditionally the cost of finding information, reviewing it for relevance and examining it for privilege is directly related to the number of documents. The importance of ESI may be illustrated by research that estimated that worldwide email traffic will total 247 billion messages per day in 2009 and in 2013, this figure will almost double to 507 billion messages per day. However, in 2009, about 81% of all email traffic was spam.

Beyond increased volume, ESI can cause many other issues which also increase cost and delay, such as determining the location of ESI, sorting responsive ESI from irrelevant ESI, seeking to retrieve ESI that may have been lost by deletion, overwriting, or recycling. In addition, there is a concern with being able to preserve legal professional privilege that may be strewn amongst vast amounts of documentation. Furthermore, beyond the office, social media such as Facebook and Twitter have created additional avenues for the creation of "documents" which may need to be considered in discovery searches.

There are a few ways in which issues with regards to ESI can be minimised, and this article will consider case management, the pre-discovery conference, and the deposition as potential tools to this end, in addition to discussing in further detail the problems foreshadowed above. These different approaches to discovery allow for a better response to the unique problems of ESI and may be the path to smooth sailing through the oceans of discovery documents.

Introduction

Electronically stored information (ESI) has prompted a wholesale change in legal culture because information technology and telecommunications have rapidly increased the volume of potentially relevant material leading to the legal profession and courts needing to find new ways to efficiently conduct the discovery process.^[1]

In this information age documentation relating to a case is not simply stored in manila folders and filing cabinets, but it is stored electronically in various forms and in a range of (virtual) locations. ESI is data that is stored on an electronic medium, usually a computer or server, and which is accessed through some form of computer program. For example it includes an email, database, Word document, PowerPoint presentation or spreadsheet. ESI by its nature is voluminous as it is easily duplicated. It has replaced the telephone, postal service, face-to-face meetings and even conversations. It can be difficult (although not impossible) to delete. It gives rise to metadata or data about data. ESI is also dynamic; the information can change with time or through the routine operations of the information technology environment, and frequently is incomprehensible when separated from the system that created it.^[2]

The volume of ESI is particularly significant for discovery purposes as traditionally the cost of finding information, reviewing it for relevance and examining it for privilege is directly related to the number of documents. The importance of ESI may be illustrated by research that estimated that worldwide email traffic will total 247 billion messages per day in 2009 and in 2013, this figure will almost double to 507 billion messages per day. However, in 2009, about 81% of all email traffic was spam.^[3]

Beyond increased volume, ESI can cause many other issues which also increase cost and delay, such as determining the location of ESI, sorting responsive ESI from irrelevant ESI, seeking to retrieve ESI that may have been lost by deletion, overwriting, or recycling. In addition, there is a concern with being able to preserve legal professional privilege that may be strewn amongst vast amounts of documentation. Furthermore, beyond the office, social media such as Facebook and Twitter have created additional avenues for the creation of "documents" which may need to be considered in discovery searches.^[4]

There are a few ways in which issues with regards to ESI can be minimised, and this article will consider case management, the pre-discovery conference, and the deposition as potential tools to this end, in addition to discussing in further detail the problems foreshadowed above. These different approaches to discovery allow for a better response to the unique problems of ESI and may be the path to smooth sailing through the oceans of discovery documents.

Managing Discovery

In 2007 Chief Justice Michael Black of the Federal Court commented on the need for the Court to ‘take a more interventionist role to avoid having trolley loads of documents being wheeled into court when hardly any of them are likely to be referred to and when every page will add to the cost of the litigation.’^[5]

In the Australian Law Reform Commission (ALRC) Report, Managing Discovery: Discovery of Documents in Federal Courts, Report 115 (2011) emphasis was placed on ensuring judges had the power to restrict discovery. The recommendations of the Report encouraged judges to take an active role in proceedings in order to manage and minimise discovery. Judges have suggested that the main tool for restraining discovery excesses was active judicial management, coupled with a judicial willingness to say no to discovery.^[6]

Federal Court of Australia

In the Federal Court the management of discovery is within the discretion of the court and is covered by the Federal Court Rules 2011 (Cth), particularly r 20.14 and r 20.15. These rules came into operation on 1 August 2011 replacing the Federal Court Rules 1979 (Cth).

Under r 20.13(1) a party may apply to the Court for an order that another party to the proceeding give discovery. Order 15 r 1 of the former rules stated that discovery could be granted “with leave of the Court.” The new rule reflects the move to limit discovery, as the onus under r 20.13 rests on the applicant to demonstrate that discovery will facilitate the resolution of the case inexpensively and efficiently.^[7] Further in the Federal Court, if a party wants to apply for an order for discovery they must file an application which states whether they seek standard discovery or, if not, the proposed scope of the discovery^[8] therefore requiring parties to consider in advance the discovery that would be appropriate for the case.

Standard discovery is defined in r 20.14, and it relates only to documents that are directly relevant to the issues raised by the pleadings or in the affidavits.^[9] A party who is to give discovery need only give discovery of those documents that are in the party’s control.^[10]

In addition to being directly relevant, documents must meet criteria set out in r 20.14(2), essentially requiring the material to adversely affect or support one of the party’s arguments. When making a search for documents that satisfy the criteria in r 20.14(1) and r 20.14(2), a party is entitled to take into account the matters in r 20.14(3) including the nature and complexity of the proceeding,^[11] the number of documents involved,^[12] the ease and cost of retrieving a document,^[13] and the significance of any document likely to be found.^[14]

If a party is seeking more extensive discovery than standard discovery, the party needs to file an affidavit stating why the order for more extensive discovery should be made.^[15] In making an application under r 20.15, the party seeking discovery must identify criteria under 20.14(1) and (2) that do not apply and other criteria that may apply.^[16] In particular, the application for discovery should state whether the applicant seeks the use of categories in a list of documents; or whether discovery should be in an electronic format; or whether discovery should be given in accordance with a discovery plan.^[17]

In August 2011, the Federal Court of Australia Practice Note CM5 was reissued. It adopts a strict view of discovery, specifying that discovery should only be ordered if ‘discovery is necessary’,^[18] ‘with a view to eliminating or reducing the burden of discovery.’^[19] The Court in determining whether to make any order for discovery, will have regard to the issues in the case and the order in which they are likely to be resolved, the resources and circumstances of the parties, the likely benefit of discovery and the likely cost of discovery and whether that cost is proportionate to the nature and complexity of the proceeding.^[20] In relation to ESI, Practice Note CM5 requires the Court to consider ‘whether discovery should be given by the use of categories or by electronic format, or in accordance with a discovery plan’.^[21]

Practice Note CM 6, deals with Electronic Technology in Litigation and is to apply in any proceeding in which the Court has ordered that discovery be given of documents in an electronic format. The Court expects the parties to a proceeding and their legal representatives to consider, at as early a stage in the proceeding as is practicable, the use of technology in the management of documents in the conduct of the proceeding. The format in which documents are exchanged should allow the receiving party the same ability to access, search, review and display the documents as the party producing the documents.

At a federal level, a move has been made to further support judicial management by moving to provide the Court with specific costs powers to manage discovery through the Access to Justice (Federal Jurisdiction) Amendment Bill 2011 which pursues Recommendation 9-2 of the ALRC Report. In his second reading of the 2011 Bill the Minister for Home Affairs stated that, “this will support judges in their role as robust case managers. I am confident that this package of reforms will give the Federal Court the tools it needs to control discovery more tightly.”^[22]

New South Wales

Under the Uniform Civil Procedures Rules 2005 (NSW) specific powers are given to promote case management. Rule 2.1 provides that ‘the court may, at any time and from time to time, give such directions and make such orders for the conduct of any proceedings as appear convenient (whether or not inconsistent with these rules or any other rules of court) for the just, quick and cheap disposal of the proceedings.’ Rule 2.3 lists some of the directions and orders that may be made under rule 2.1, and this includes, with ramifications for managing discovery ‘the defining of issues, including requiring the parties, or their legal practitioners, to exchange memoranda in order to clarify questions’.^[23]

In relation to discovery, an order for discovery may not be made in respect of a document unless the document is relevant to a fact in issue.^[24] A matter is taken to be "relevant to a fact in issue" if it could, or contains material that could, rationally affect the assessment of probability of the existence of that fact (otherwise than by relating solely to the credibility of a witness), regardless of whether the document or matter would be admissible in evidence.

In New South Wales the Uniform Civil Procedure Rules provide that the court may order discovery of documents within a class or classes specified in the order or one or more samples (selected in such manner as the court may specify) of documents within such class. A class of documents may be specified by relevance to one or more facts in issue, by description of the nature of the documents and the period within which they were brought into existence, or in such other manner as the court considers appropriate in the circumstances.^[25]

Because of the costs and burdens (if not impossibility) of reviewing increasingly vast volumes of electronic data, it makes sense for producing parties to negotiate with requesting parties in advance to define the parameters of discoverable information.^[26] The scope of discovery should be determined not by the standard requirements in court rules but by the judge and the parties crafting a discovery regime tailored to the nature of the case.

Both the NSW and Federal rules guiding discovery make it clear that judicial management is both allowed and also expected. The ultimate tool in managing the extent and cost of discovery is the intervention by the court at as early a stage in the litigation as possible, in order to isolate issues with sufficient precision.^[27]

Pre-discovery conference

The Pre-Discovery Conference or "meet and confer" has been provided for in a number of Australian courts to allow for the case management of electronic discovery or ESI.^[28] The use of conferences has been broadly adopted by Federal Court judges.^[29] The Fast Track List, Tax List and Representative Proceedings practice notes require the use of a scheduling or case management conference at which parties will be expected to outline the issues and facts that appear to be in disputes with a view to narrowing the issues.^[30]

Justice French has explained that a number of case management issues need not be dealt with in a formal courtroom environment and may benefit from a conference. His Honour commented that: "It is a technique which I have found particularly useful in cases in which there is a multiplicity of parties or where there is major litigation which has to be brought on within a short timeframe".^[31] Justice Lindgren has similarly advocated the use of conferences in relation to class actions and complex commercial proceedings.^[32]

Paragraph 7.1 of Practice Note CM 6 makes clear that the Court expects the parties to meet and confer for the purpose of reaching an agreement about the protocols to be used for the electronic exchange of documents and other issues relating to efficient document management. Litigants who choose to ignore the exhortation contained in paragraph 7.1 of Practice Note CM 6, namely that the parties meet and confer for the purpose of reaching an agreement about the protocols to be used for the electronic exchange of documents and other issues relating to efficient document management, will lose the opportunity of getting helpful information more quickly. Litigants who fail to approach such discussions in good faith will lose the opportunity to craft the scope of electronic discovery.^[33]

In the US in order to address the need to minimise costs while allowing for access to relevant ESI, Federal Rules of Civil Procedure (FRCP) Rule 26(f), which deals with party conferences and planning for discovery, was amended to require the parties to discuss electronic discovery in general and to discuss three issues in particular: the form of production, data preservation, and privilege waiver. The express recognition of the need to discuss ESI is a reflection of how electronic discovery presents problems different from, and more complicated than, conventional discovery. FRCP Rule 16 also provides for court-ordered pre-trial conferences which may be used for controlling and scheduling discovery. The US experience with the Pre-Discovery Conference is drawn upon to provide guidance for Australian judges and practitioners.

Preservation of ESI

In the US when a party has notice that evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation then an obligation to preserve the evidence arises and a 'litigation hold' must be put in place to prevent the destruction of potentially relevant documents and ESI.^[34] FRCP Rule 26(f) states that the parties must discuss "any issues regarding preservation of discoverable information" when they meet to develop a proposed discovery plan. In relation to ESI the lawyer needs to be armed with answers to:^[35]

• What relevant electronic evidence is in danger of being lost by deletion, overwriting, or recycling?
• Are the firm's backup tapes recycled, if so, how often?
• Are mass amounts of old information routinely purged from the system to create space for new files on the system?
• Are emails and other electronically stored information automatically deleted after they reside on the system or individual computers, including ISP accounts, for a set period of time (e.g. 30 days)?
• Are emails stored on a central server or individual desktop or laptop computers?
• Are computers ever wiped clean and reformatted, such as when an employee leaves the company?
• Are any IT infrastructure changes, modifications, or upgrades planned for the near future; if so, how will archival data be migrated to the new system?

More recently, the use of cloud computing needs to be added to the list of concerns. The typical feature of cloud computing is that, rather than storing data on an individual computer or in onsite backups, high-speed Internet access is used to outsource this service, often to third-party providers.^[36] This means that for many entities they, or their employees, are no longer the custodians of the records the entity produces or receives. However, under the requirements for discovery the contractual arrangements between the entity in litigation and the third-party cloud computing provider may create a relationship where the litigant is still obligated to provide discovery. The obligation to provide discovery usually extends to documents over which a party has ‘power’.^[37] The litigant has the power to obtain the documents stored with the third party pursuant to the cloud computing agreement. However, the actual preservation and production of the documents is in the hands of the third party provider. The difficulty that arises is that the third-party cloud computing provider may not assume preservation and production responsibilities beyond that set out in the contract, and even under those obligations there may still be situations where ESI is changed, deleted or unable to be restored. Moreover, the cloud computing provider may be unable to provide the contracted for services if it becomes insolvent or otherwise ceases to trade, such as when the US Government closes the company because of allegations of copyright infringement.^[38] Lawyers should ensure they are familiar with the contractual obligations undertaken by any third-party cloud computing provider in relation to their client.

The discussion with the judge about the necessary steps for establishing and implementing an effective data-preservation policy may also avoid allegations of document destruction.^[39] However, it also informs what information continues to exist and what is no longer readily available which will be useful in addressing the scope of discovery.

In Australia where obligations to prevent the destruction of relevant documents and ESI also exist,^[40] the discussion of the steps taken to preserve ESI at a Pre-Discovery Conference are likely to yield similar benefits.

Scope of Discovery

During a pre-discovery conference, lawyers should seek to narrow the scope of their client's discovery obligations by:

• narrowing the list of custodians of potentially relevant records,
• limiting the relevant time frame,
• considering alternative sources of information that may be cheaper and easier to access,
• understanding how a clients IT systems functioned so that how and where information is stored can be used to explain why certain sources of data will or will not contain relevant information,
• agreeing on a search strategy to harvest potentially relevant ESI, and
• excluding irrelevant computer systems.

In Australia the scope of discovery was historically determined by the ‘train of inquiry test’ but has now been narrowed to a ‘direct relevance test’ in the Federal Court, South Australia, Queensland and in New South Wales.^[41] Judges can vary court rules so as to tailor discovery to a particular case.^[42] As discussed above under the issue of case management, the Federal Court for example has powers to ensure ultimately that the likely cost of discovery is weighed against its likely benefit.^[43] More generally, a judge's case management powers in relation to discovery are frequently subject to overriding or overarching purposes of achieving justice while minimising cost and delay.^[44]

The pre-discovery conference affords the opportunity to narrow the scope of discovery in an interactive forum rather than through the exchange of correspondence which may be productive of cost, delay, misunderstanding and non-agreement. The pre-discovery conference may also assist the judge. The Supreme Court of Victoria's submission to the Victorian Law Reform Commission observed that ‘while the Court can encourage certain practices through case management, the parties are the only ones in a position to know the extent of documentation in particular areas, and where limiting discovery will produce real cost savings’.^[45]

Format of ESI

In the US, Rule 26(f)(3) explicitly directs lawyers to discuss the form or format in which ESI should be produced. Doing so facilitates thinking about the types of ESI that a client may need from an opposing party, and the most effective and efficient way to review and utilise such data.

For example parties could decide the format of files produces, such as whether they will be provided as TIFF (Tagged Image File Format) or PDF (Portable Document Format) files, or instead in the native file format.

Native file format means the default file format a computer program uses to store data on a drive or disk. For example, producing a Word document in native file format means producing it as a Word file, rather than as a printed hard copy document, PDF, or other formatted file. To view a file in its native format it is necessary to access a computer program that it is compatible with.^[46]

The advantage of TIFF and PDF files is that they cannot be edited, they are viewable on most computers even if the recipient does not have the same proprietary software and the recipient will not be able to see any redacted material.^[47]

Most lawyers faced with the prospect of reviewing documents electronically will include the requirement that produced documents include OCR and/or extracted text. The cost for processing and obtaining OCR and/or extracted text should be explored and evaluated in light of the efficiency brought by being able to easily search, identify and manage key documents during the course of the litigation.

The importance of resolving the format for production is illustrated by Covad Communications Co v Revonet Inc, a dispute concerning the alleged conversion and misappropriation of trade secrets.^[48] The plaintiff wanted emails produced in native format. However, the defendant had already produced the e-mails at issue in hard copy form and did not want to incur the costs of a privilege and relevance review if it had to reproduce the emails in native format. Ultimately, the parties were required to split the costs of having a paralegal delete privileged e-mails from the native file format collection of e-mails. The court observed that "This whole controversy could have been eliminated had Covad asked for the data in native format in the first place or had Revonet asked Covad in what format it wanted the data before it presumed that it was not native".^[49]

Metadata

Metadata is essentially data about data. It is ancillary electronic information needed to manage the primary electronic information.^[50]

Parties should discuss during a discovery conference whether metadata should be included or excluded from discovery obligations. In some cases, metadata can be of minimal importance. In others, it can be critical. If there could be an issue as to when an e-mail was sent or received, if it was read, whether a document was copied or modified, or who wrote and commented on a document, then serious consideration should be given to the production of documents in native file format. Alternatively ESI could be produced in searchable TIFF or PDF form with appropriate metadata fields provided in a discovery database.^[51]

In White v Graceland College Center for Professional Development, the plaintiff was allowed to require the production of metadata as without the metadata she would be unable to confirm or contradict the timing that the documents were authored, and timing was a critical issue in relation to the termination of the plaintiff's employment.^[52] Similarly in Chevron Corp v Stratus Consulting, Inc dealing with allegations of fraudulent activity between Respondents and a court-appointed expert the Court accepted that access to metadata should be granted as it may “demonstrate definitively the authorship, development, and drafting” of the electronic documents at issue.^[53]

Finding Responsive ESI - Search Strategies

Due to limitations on lawyer review capacity and client budgets a manual review of every piece of ESI is rarely feasible. As a result, litigation lawyers turn to various tools and methodologies to help identify, cull and sort ESI for the purposes of relevance, privilege and confidentiality.^[54]

The most commonly used search methodology today is the use of “keyword searches” which searches the full text for simple keywords, with or without Boolean operators. Boolean operators include "AND", "OR" and "NOT". The ability to perform keyword searches against large quantities of evidence has represented a significant advance in using automated technologies and reducing the cost and time to locate documents.^[55]

Basic keyword searching techniques have been widely accepted both by courts and parties as sufficient to define the scope of their obligation to perform a search for relevant documents.^[56] Keyword searches work best when the legal inquiry is focused on finding particular documents and when the use of language is relatively predictable. For example, keyword searches work well to find all documents that mention a specific individual or date, regardless of context.

Whilst the goal of keyword searches is to produce the greatest number of documents with the greatest relevance in a cost-effective way,^[57] keyword searches identify all documents containing a specified term regardless of context, and so they can possibly capture many documents irrelevant to the user’s query. Receiving “false positive” hits can amount in huge numbers of files which must be searched manually to find responsive documents. On the other hand, keyword searches have the potential to miss documents that contain acronyms, synonyms or jargon that has the same meaning as the term used in the query but is not specified. Keyword searches can also exclude common or inadvertently misspelled instances of the term (e.g., “Phillip” for “Philip,” or “strik” for “strike”). So too, it is well known that even the best of optical character recognition (OCR) scanning processes introduce a certain rate of random error into document texts, potentially transforming would-be keywords into something else.^[58]

More advanced forms of searching are available, such as concept searching which aims to improve upon the performance limitations of keyword searching by using sophisticated statistical and linguistic models to understand the meaning behind search terms. This is done by identifying word patterns and occurrences in documents, which are then translated into "concepts." The patterns are deduced using approaches based on mathematics, statistics, linguistics and/or taxonomy. The concept search tool then compares those "concepts" across the document set, looking for relationships between documents. The aim of concept searching is to significantly decrease the amount of material that must be reviewed and allow lawyers to identify and review the most relevant documents more quickly and accurately.^[59] However, the development of new technologies that could be employed in the discovery of ESI outpaces the developing law of discovery. As a result, cutting-edge technologies may have no judicial decisions to support their employment.^[60] The meet-and-confer provides an opportunity to educate the judges and opponents about a new technology with a view to avoiding later disputes about its use.

The search process should also adopt an iterative approach or virtuous cycle where a sequence of events reinforces itself through a feedback loop leading to favourable results. In practice this means negotiate search terms, run the agreed searches, review a sub-set of the results, and meet to adjust the searches in response to the results.^[61] This approach would seem to be captured by court rules that expressly allowed for sampling but would otherwise be able to be ordered as part of the court's case management powers.

A search strategy developed unilaterally by the producing party may be subject to later challenge if it fails to produce all responsive information or imposes an undue burden on an opponent.^[62] Equally, the practice of requiring the party requesting discovery to specify the material that they want is problematic as due to unfamiliarity with the data set and the desire to not miss relevant material searches may result in unresponsive information that is expensive and burdensome to both parties.^[63] The way in which ESI is to be searched requires input from both parties.

The difficulties with devising an appropriate search strategy without adequate consultation with the creators or custodians of ESI are illustrated by the Bronx County Hall of Justice case which dealt with a dispute over alleged defects and delay in construction of the Hall of Justice and necessitated access to a third-party construction manager's ESI.^[64] The keywords suggested by the parties included search terms, emphasizing the construction issues they were involved in, such as “sidewalk,” “change order,” “driveway,” “access,” “alarm,” “budget,” “build,” “claim,” “delay,” “elevator,” “electrical”. The use of such extensive keywords would require production of the construction manager's entire email database, since the nature of the business is construction management, and those terms would be used for any construction project. The Court observed:^[65]

This case is just the latest example of lawyers designing keyword searches in the dark, by the seat of the pants, without adequate (indeed, here, apparently without any) discussion with those who wrote the emails.
...
Electronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI. Moreover, where counsel are using keyword searches for retrieval of ESI, they at a minimum must carefully craft the appropriate keywords, with input from the ESI's custodians as to the words and abbreviations they use, and the proposed methodology must be quality control tested to assure accuracy in retrieval and elimination of “false positives.”

If the party responding to the discovery request does not engage in good faith in the negotiation of a search strategy then the court may need to require more intrusive methods such as the administering of interrogatories or the filing of affidavits from those people with knowledge of the relevant information systems. If the oral deposition was available it would be an effective tool for addressing this issue as well.^[66]

In the US there has even been the suggestion that the development of appropriate search terms has reached the stage where it may be a matter for expert evidence because whether search terms will yield the information sought is "a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics".^[67] The use of the Pre-Discovery Conference to negotiate search terms and then the testing of the effectiveness of the search terms may avoid the additional costs of briefing experts.

These concerns are not limited to the US. In Central Queensland Mining Supplies Pty Ltd v Columbia Steel Casting Co Inc [2011] QSC 183, in which the discovery process yielded 311.9 GB of data, Applegarth J observed:^[68]

In retrospect, it would have been preferable for the parties to confer and agree about the extent of searches to be undertaken by them for the purpose of disclosure, before those searches were undertaken, and to refer any disagreement to the court if they were unable to resolve any difference of substance.

Professional Legal Privilege

Practice Notes in the Supreme Court of NSW state that parties should consider whether ESI may be discovered on an agreed without prejudice basis, and without the need to go through the information in detail to categorise it as privileged and non-privileged.^[69] The issues regarding legal professional privilege are outlined in detail below.

The complexity and volume of information means that litigators must collaborate far more than they have in the past, as otherwise they will act against their own self-interest and the interest of their clients.^[70] The regular use of the Pre-Discovery Conference for dealing with ESI affords an opportunity to institutionalise cooperation. However, it is important to be realistic and acknowledge that the adversarial system may still see discovery used tactically to impose costs on an opponent. Consequently while the Pre-Discovery Conference is in keeping with other developments in Australian law, it should also be seen as a tool of case management that requires judicial supervision.

Depositions in the Federal Court

Recommendations 10-1 and 10-2 of the recent Australian Law Reform Commission (ALRC) Report, Managing Discovery: Discovery of Documents in Federal Courts, Report 115 (2011) state that the Federal Court should be expressly authorised to order pre-trial oral examinations, also known as depositions. The Report observed that ‘discovery is often the single largest cost in any corporate litigation, giving rise to a concern about the scale of costs’.^[71] The deposition procedure could provide a new avenue through which the problems of cost could be resolved, due to their potential to reduce the scope of discovery^[72] and encouragement of settlement.^[73]

The US Deposition

The FRCP outlines the rules for depositions in United States Federal Courts. Under these rules, testimony can usually be taken without leave of the court.^[74] A party may take the testimony of any person, including a party, by oral deposition without leave of the court.^[75] Consequently, the range of persons that may be deposed is wide and includes lay and expert witnesses, and a party’s employees such as document custodians or IT Managers.

It is also possible to depose a corporation, partnership, association or governmental agency, referred to as a Rule 30(b)(6) deposition. If a party wishes to take such a deposition they must describe with reasonable particularity the matters on which examination is requested. The organisation named must then designate one or more persons who consent to testify on its behalf. The persons designated must testify as to matters known or reasonably available to the organisation.^[76] This type of deposition is most appropriate when the actions by a corporation involved many individuals, the conduct took place in the past and the relevant people are no longer with the corporation and in cases with voluminous discovery that is difficult to comprehend.

To take the deposition of any person a party must:

• give notice to every other party of the time and place of the deposition, and the name and address of each deponent;^[77]
• state the method by which the testimony shall be recorded, such as sound, video, or stenographic means (any party may designate an additional method);^[78]
• conduct a deposition before a person agreed upon by the parties or authorised to administer oaths or appointed by the Court;^[79] and
• unless otherwise authorised by the court or stipulated by the parties, limit the deposition to one day of seven hours.^[80]

The procedure at a deposition is usually that the lawyer acting for the party noticing the deposition examines the deponent first. The lawyer for the deponent may then conduct an examination. The rules of evidence operate but with variations to the position at trial.

No objection is necessary unless the objectionable question could have been cured through a prompt objection.^[81] A matter will usually be capable of being cured if it is a matter as to form, that is, the form of the question is objectionable but could be corrected so as to ask an unobjectionable question. For example, questions that are ambiguous, compound, calling for speculation or misstating prior testimony could be objected to and corrected.

Objections do not prevent a witness from answering a question. The objection is instead noted on the record of the deposition.^[82] If the objection is valid then it is preserved should an opponent wish to use the deposition at a later point. Further, any objection during a deposition must be stated concisely and in a non-argumentative and non-suggestive manner.^[83] Lawyers are prohibited from using objections to try and coach or affect the testimony of a witness.

In contrast to an objection where the deponent is required to answer, there are a limited number of circumstances where the lawyer may instruct the deponent not to answer. Those circumstances arise when it is necessary to preserve a privilege, to enforce a limitation directed by the court, or to present a motion that the examination is being conducted in bad faith.^[84]

The effect of this approach to objections is that the party taking the deposition must ensure its questions are in admissible form if they want to be able to rely on the testimony in Court. However, as objectionable questions are still answered, the disclosure of information is facilitated.

Whilst concerns have been expressed about the length of time the deposition can add to resolving a dispute, the US procedure generally limits the deposition to one day of seven hours.^[85] Where a person impedes, delays, or frustrates the fair examination of the deponent, sanctions including paying lawyer’s fees can be imposed by the court.^[86]

The Victorian Deposition

In 2006, the Victorian Law Reform Commission questioned whether depositions were needed in Victoria^[87]. Subsequently, the Report in 2008^[88] gave great consideration to the adoption of the deposition procedure.^[89] Recommendations 50-75 outline the proposed Victorian model, and details of the examination procedure are clearly set out in Recommendations 55-68.

The proposed VLRC deposition requires leave of Court which helps ensure costs are only being incurred where the Courts agree they are reasonable.^[90] In addition, the Court can give directions it thinks appropriate including limiting the number and duration of examinations and restricting the subject matter.^[91]

The Victorian model preserves the advantage of FRCP r 30(b)(6), which allows depositions of corporations and other organisations, however under the Victorian model, the examining party and corporation must reach an agreement on most appropriate person to be examined.^[92]

Each person at the proceeding is encouraged to cooperate, as sanctions such as cost orders can be imposed on any participant in the deposition that exhibits ‘obstructive, repetitive, unreasonable or oppressive’ conduct.^[93]

The VLRC’s Recommendations were not adopted in the Civil Procedure Act 2010 (Vic).

Justice Finkelstein’s Deposition

Justice Finkelstein advocates the use of depositions, and puts forward his own model similar to the US. However, he emphasises the need for a ‘discovery master’ to oversee the deposition and, like the VLRC, would require leave of the Court.^[94] He suggests depositions should be used where there is a large volume of documents and depositions will help to clarify the meaning of documents and therefore reduce the volume of documents to be placed before the court and the number of witnesses to be called.^[95]

Advantages and Disadvantages of Depositions

It would be imprudent to imply that depositions would be appropriate as the Federal Court’s primary discovery method; in fact in many cases depositions will add not decrease costs.

However, one of the greatest benefits of depositions in terms of ESI is the access to better information, as unfiltered access to the witness allows for a more useful dialogue than the exchange of letters.^[96] US litigators have found that ‘oral depositions offer an alternative to interminable document discovery ...[and] in relation to certain documents, issues can be quickly dealt with by some questions of a witness which would otherwise be difficult to track through a paper trail’.^[97]

A deposition which adopts a rule similar to the US FRCP r 30(b)(6) helps in ‘addressing document retention policies and what categories of document are within the possession, custody or control of a party,’ allowing for more narrowly crafted discovery requests.^[98] This can be increasingly problematic when searching ESI. More specifically, it has been found that this rule can help to identify, with particularity, ‘categories limited by date or, in relation to emails, limited by reference to sender/recipient etc.’^[99] Both the US and Finkelstein approaches place the onus on the corporation of finding the most suitable person for this deposition. The corporation is more likely to have an understanding of who should be designated. If the onus was on both parties to agree on a person, as the VCLR provides, ‘it is difficult to see how the corporation can be held responsible if the person lacks the requisite knowledge.’^[100]

The threat of deposition can also be used as an incentive to encourage deponents to search carefully for documents expected to be discovered, and to provide detailed explanations for documents which appear to be missing.^[101]

Overall, the primary criticism of depositions is the front-loading of cost.^[102] With respect to cost, ‘it should also be noted that the additional up-front cost of the deposition may not be warranted where the quantum at stake is small relative to the costs of discovery. The deposition may not be warranted at all or only in an abridged manner in small cases.’^[103]

In addition, the deposition model is criticised for being prone to discovery abuse, where lawyers may conduct themselves to deliberately increase costs for their opponent, seeks unnecessarily broad discovery, or withholds discoverable information.^[104] However, studies with respective to discovery abuse agree that it is a problem, but only in a minority of cases.^[105]

The Federal Court Deposition

Under the Federal Court of Australia Act 1976, the Court has the power to grant orders and commissions for examination of witnesses.^[106] Section 46 provides:

46 Orders and commissions for examination of witnesses
The Court or a Judge may, for the purposes of any proceeding before it or him or her:
(a) order the examination of a person upon oath or affirmation before the Court, a Judge, an officer of the Court or other person, at any place within Australia; or
(b) order that a commission issue to a person, either within or beyond Australia, authorizing him or her to take the testimony on oath or affirmation of a person;
and the Court or a Judge may:
(c) by the same or a subsequent order, give any necessary directions concerning the time, place and manner of the examination; and
(d) empower any party to the proceeding to give in evidence in the proceeding the testimony so taken on such terms (if any) as the Court or Judge directs.

Whilst these powers were broad enough to allow depositions for the purpose of minimising discovery previously, following the ALRC Report Recommendation 10, the availability of this power for allowing depositions has been highlighted. In his speech on the second reading of the Access to Justice (Federal Jurisdiction) Amendment Bill 2011, the Minister for Home Affairs suggested that the Bill would implement Recommendation 10-1 of the ALRC Report to “clarify that oral examinations can be used to assist to identify which kinds of documents should be subject to discovery”^[107] in the Federal Court. Under this Bill, the court seeks to add a Note to the Federal Court of Australia Act 1976 (Cth) s 46 so that it is clear that “proceedings include incidental proceedings, such as discovery (see the definition of proceeding in section 4).^[108]

Whilst the inclusion of this note will clarify that depositions may be utilised by order of the Court, it does not help to clarify how the deposition process is to operate. Section 46 provides that the Court may “order the examination of a person upon oath or affirmation before the Court, a Judge, an officer of the Court or other person, at any place within Australia”.^[109] Further the court has power to “give any necessary directions concerning the time, place and manner of the examination.”^[110] However further guidance is needed. Presumably this is to be left to court rules, practice notes and the directions of an individual judge. The VLRC^[111], Justice Finkelstein^[112] and the ALRC^[113] have formulated practical deposition models that could be drawn on by the Federal Court to maximise the advantages of, and minimise the cost of, implementing a deposition procedure.

Social Media

The rise of social media such as Facebook, Twitter and LinkedIn create additional avenues for the creation of "documents".^[114] As of December 2011, eight hundred forty five million internet users have active Facebook accounts and more than 50% of users log on to Facebook in any given day.^[115] In 2011 Australians visited Facebook 6.2 billion times.^[116] Figure 1 shows the monthly use of various social media sites including Facebook which averaged 11m visitors per month and Twitter and LinkedIn which were between 1-2m visitors per month.

Social media refers to interactive websites that allow users to connect, communicate, and share information. They share certain characteristics including: users being invited to provide personal data to generate a “profile”, posting personal materials such as status updates, videos, photographs, and music, and being able to interact with a list of contacts. Social media brings together pre-existing interactive technologies on a single service, such as search, email, messaging, chat, blogs, gaming, discussion forums, VoIP [Voice over Internet Protocol e.g. skype], photos, music and videos. Most social media websites allow users to set varying degrees of privacy controls that limit the individuals who may view and interact with the users on their social media profiles.^[117]

Facebook is a “social utility that helps people communicate more efficiently with their friends, family and coworkers.” Facebook users create profiles that contain personal information, pictures, and a “wall” on which other users may post comments. Each user profile is situated within a network--a smaller com-munity, such as a school or professional group, with whom the user identifies himself or herself. After creating a profile, users can communicate through several features, including status updates, wall posts, personal messages, and live chats. Users are also free to calibrate their profiles' privacy settings to control who can view the information contained on the profile. If another Facebook user wishes to view or post on a profile that has restricted viewing access, the user must “friend,” the other party--send a request for “friend” status--and the party must accept in order for the user to view the profile. Once the requester obtains “friend” status, the requester can then view the information contained on the profile and post comments on the user's wall.^[118]

LinkedIn is structurally similar to Facebook. Twitter is a slightly different form of social media site. Rather than maintaining a profile, Twitter users distribute “tweets” - short messages consisting of 140 characters or less. Other users are invited to “follow” each other on Twitter and gain instant notification when a user issues a new tweet. Most Twitter accounts and tweets are publicly viewable. Although the default setting for all Twitter users is to have tweets publicly available, users can opt to set privacy controls restricting the ability to view their tweets to their followers alone. In such an event, a Twitter user interested in viewing another user's tweets that are not publicly accessible must request to follow the user, and the user must accept.^[119]

The average social media profile contains many potentially useful and discoverable details such as a person's hometown, date of birth, address, occupation, ethnicity, height, relationship status, income, education, associations, “likes,” and an array of comments, messages, photographs, and videos.^[120]

Figure 1: Monthly Use of Social Media Sites for 2011

Source: SocialMediaNews.com.au http://www.socialmedianews.com.au/social-media-growth-australia-2011-infograph

Facebook was forced to simplify and tighten privacy options last year in response to growing concern over web companies selling personal information as well as the potential for cyberbullying or stalking. But privacy settings do not prevent a court permitting discovery or issuing a subpoena to retrieve information on a social media site. Facebook's policy recognises as much when it says, ''We may share your information in response to a legal request (like a search warrant, court order or subpoena) if we have a good faith belief that the law requires us to do so''.^[121] Similarly Twitter’s terms of service state “We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request ... ".^[122]

The vast amount of information a lawyer may find on a social networking website can be a “virtual gold mine of discoverable information”.^[123] In traditional practice, a lawyer would not second-guess his or her desire to introduce relevant evidence. The same should apply to information obtained from social networking sites, so long as lawyers master current legislation and court rules addressing the means of obtaining such information. ^[124] For example, Facebook Pages if relevant to a dispute may be discoverable. However, lawyers cannot engage in fishing expeditions. There must be some cause to argue the material is relevant. Subpoenas need to be expressed with precision and courts have wide powers to limit the scope of discovery to avoid unnecessary cost and delay.

Overseas Cases

In a medical negligence, workplace injury or a car accident case, the primary purpose of seeking access to Facebook is usually to establish that the plaintiff is not as seriously injured as claimed in a lawsuit. If a person posts a picture of him or herself skiing or skydiving then the harm caused by the negligence or accident may be far less than alleged.^[125] A 28-year-old Canadian man, who claimed that as a result of a car accident he had little or no social life, posted photographs of himself attending and hosting parties and participating in weekend outings. The judge referred to Facebook in finding that he had friends with whom he socialised on a regular basis.^[126] In a family law dispute evidence as to a parent’s ability to care for a child may be garnered from various posts. A US court in Ohio permitted a father to use the mother's MySpace writings to establish that she was a bi-sexual, sado-masochist who engaged in illicit drug use and pagan rituals to show a direct adverse impact on the child and therefore help him win custody.^[127] In Mai-Trang Tbi Nguyen v Starbucks Coffee Corp the plaintiff sued her former employer for sexual harassment, religious discrimination, and retaliation after having been fired for threatening violence toward co-workers and for inappropriate conduct. The defendant obtained summary judgment with the help of the plaintiffs MySpace page, in which she stated: “Starbucks is in deep shit with GOD!!! ... I thank GOD 4 pot 2 calm down my frustrations and worries or else I will go beserk and shoot everyone”.^[128] Facebook pages may carry misleading or defamatory statements, or they may be the repository of customer complaints about a defective product.

In the US the discovery of social media has become sufficiently mainstream that the US legal encyclopaedia American Jurisprudence now contains a chapter entitled "Pretrial Involving Facebook, MySpace, LinkedIn, Twitter, and Other Social Networking Tools".^[129] Australian legal practitioners need to be conscious of the possible uses of social media in resolving disputes, and of potential documents which may be found on a social media medium and fall within the scope of discovery.

The discovery of social media raises a host of ethical issues that have not been fully settled by rule changes or ethics opinions.^[130] In Canada the conflict between privacy and discovery creates a similar issue. The case Leduc v Roman^[131] involved a personal injury case in which the plaintiff claimed damages for loss of enjoyment as a result of defendant's negligence. The defendant sought discovery of Leduc’s Facebook page, however the discovery master denied this, on the basis that the direct relevance had not been established, and also due to privacy concerns. On review in the Supreme Court, Judge Brown disposed of the privacy issues holding that private and limited access Facebook profiles do not affect the obligation to identify and produce postings related to any matter in issue.

Finally, given the ruling, the court cautioned lawyers to put their clients on notice:^[132]

Given the pervasive use of Facebook and the large volume of photographs typically posted on Facebook sites, it is now incumbent on a party’s counsel to explain to the client, in appropriate cases, that documents posted on the party’s Facebook profile may be relevant to allegations made in the pleadings

Australian Cases

Evidence recovered from Facebook has taken a crucial rule in a broad variety of Australian cases, including Ramazan Acar v R^[133] where it was used to look at personality disorder where there was a murder of an infant daughter by her father, Marbow v Marbow^[134] where it was used in proving the significant issues a mother had with alcohol and co-morbid mental difficulties where determining the best interests of the children, Condon Nixon v Rivers^[135] looking at allegations of inappropriate behaviour in making final parenting and children’s orders and in Glen Stutsel v Linfox Australia Pty Ltd^[136] where the applicant was dismissed with notice for posting derogatory and harassing comments about managers on Facebook, and the applicant submitted that the investigation of his Facebook page was an unwarranted invasion of the right to privacy. However, despite the obvious importance of Facebook and other social media sites the approach to social media documents via discovery has yet to have been carefully considered by the courts.

Material available for litigation may also include content stored on a mobile phone. In a recent NSW case, Palavi v Radio 2UE Sydney Pty Ltd,^[137] a plaintiff began proceedings for defamation against a radio station in response to statements made about her sexual conduct with rugby league players. The radio station sought discovery of mobile phones believed to have incriminating photos and text stored on them and the court enforced the request.

Document Destruction

Anyone facing litigation may now think to delete material on social media sites. But, just like shredding or burning paper documents, this may amount to contempt of court if the material is relevant to litigation. Social media websites can even be forced to provide evidence of the material being destroyed.

Statements on Facebook or Twitter may themselves become evidence of document destruction. In Palavi v Radio 2UE Sydney Pty Ltd,^[138] the plaintiff's Facebook contained the following entry: ''This is gonna sound stupid but how do I get pics off my iphone that I don't want? Like ones that have synced from computer?''

In the US, Zubulake v. UBS Warburg LLC, held that a party's duty to preserve evidence extends to all ESI that a party knows, or reasonably should know, is relevant to the subject matter of the litigation.^[139] The preservation and production of documents issues discussed in relation to cloud computing also applies to social media as sites like Facebook and Twitter as much of the ESI is not stored on the user’s computer but instead on the social media’s own servers. Consequently, in some circumstances ESI may have to be retrieved by the social media site which will limits its obligations to preserve ESI. For example, Twitter’s terms of service state:

Twitter will not be responsible or liable for any harm to your computer system, loss of data, or other harm that results from your access to or use of the Services, or any Content. You also agree that Twitter has no responsibility or liability for the deletion of, or the failure to store or to transmit, any Content and other communications maintained by the Services.

Admissibility

Practitioners should be aware that as discovery of social media site becomes more main stream problems beyond relevance, such as authentication, and hearsay^[140] may arise leading to new questions about admissibility of evidence.

Preserving privilege in electronic discovery

It is well established that a person who would otherwise be entitled to assert legal professional privilege may, by their conduct, waive that privilege. The actions of a legal adviser, including disclosing or allowing a party to inspect a privileged communication, may amount to waiver of privilege which will be binding on the client.^[141] This can be the case even where the disclosure was inadvertent.

Due to both the volume and nature of ESI, there is an increased risk that privileged material will not be properly identified and protected during the discovery process. The problem is compounded by the existence of "subject matter" waiver, (sometimes referred to as "issue" waiver or "associated matter" waiver), where, in certain cases, waiver of privilege over a single communication may lead to waiver over all related material (even if that related material has not been disclosed).^[142] Whether a particular disclosure will result in subject matter waiver is of particular relevance to ESI due to the different manner in which electronic communications, such as email, are communicated and are recorded. For example, often the reply to an email will have the text previously received set out below the new message. As a result, a single message containing privileged information may be included in any number of subsequent emails following on from the original message. The problem is compounded by the fact that an email may be sent to multiple people, who may also send forwards and replies containing the privileged material. It is often a challenge to identify every single email containing the relevant information, and there is a risk that disclosure of any single copy would waive privilege over the entire "chain", or set of related emails.

The cost and burden of performing a review to identify privileged documents (a "privilege review") can be significant in any proceedings, but has become especially so with the massive volume of ESI now in existence.^[143] Prior to the advent of ESI, there was a general expectation that every potentially relevant document would be reviewed for privilege before its discovery. This approach is quickly becoming not only prohibitively expensive, but an actual impossibility. As a result, it is becoming increasingly necessary for legal practitioners to rely on technology to identify potentially privileged documents and reduce the scope of any manual privileged review to a more manageable level. However, available technological solutions are not fool-proof and a relatively minor error in developing the search and review protocol, or even human error in using electronic tools to conduct individual searches, has the potential of misidentifying a large volume of material. Traditionally the disclosure of a large volume of material would generally undermine any argument that the disclosure was inadvertent, and that privilege has not been waived. In the context of ESI this argument may be countered primarily by demonstrating the methods used to conduct a privilege review have been appropriate and have been setup, supervised and used by persons with the appropriate levels of expertise.

If the process of discovery, with the necessary inclusion of a privilege review, is to proceed efficiently "there must be innovation in the law ... New rules on inadvertent disclosure should be given effect, which limit or eliminate the waiver of privilege, or the system will become impossibly expensive through continued need for meticulous review".^[144]

The United States has attempted to address these issues, at a Federal level, through the introduction of Rule 502 of the Federal Rules of Evidence which was signed into law on 19 September 2008. Waiver generally is dealt with in Rules 502(a) and (b), whilst Rules 502(d) provides certainty that privilege will not be waived by the use of "quick peek" and "claw back" arrangements in federal proceedings. These arrangements are designed to reduce the burden of a privilege review and give parties confidence that privilege will not be waived by entering into certain pre-discovery arrangements. Rule 502 provides:

(a) Scope of waiver.
In federal proceedings, the waiver by disclosure of an attorney-client privilege or work product protection extends to an undisclosed communication or information concerning the same subject matter only if that undisclosed communication or information ought in fairness to be considered with the disclosed communication or information.
(b) Inadvertent disclosure.
A disclosure of a communication or information covered by the attorney-client privilege or work product protection does not operate as a waiver in a state or federal proceeding if the disclosure is inadvertent and is made in connection with federal litigation or federal administrative proceedings — and if the holder of the privilege or work product protection took reasonable precautions to prevent disclosure and took reasonably prompt measures, once the holder knew or should have known of the disclosure, to rectify the error, including (if applicable) following the procedures in Fed. R. Civ. P. 26(b)(5)(B).^[145]
(d) Controlling effect of court orders.
A federal court order that the attorney-client privilege or work product protection is not waived as a result of disclosure in connection with the litigation pending before the court governs all persons or entities in all state or federal proceedings, whether or not they were parties to the matter before the court, if the order incorporates the agreement of the parties before the court.

Rule 502(a) addresses the problem of "subject matter" waiver. For example, if a note is inadvertently discovered which refers to legal advice, is privilege only waived over that note, or all privileged documents and other evidence relating to the legal advice? Rule 502(a) creates the presumption that privilege would only be waived over the document actually disclosed, and not over all related, but undisclosed, privileged documents, subject to a test of fairness.^[146]

Under Rule 502 (b) disclosure does not operate as a waiver in a federal proceeding if the disclosure is inadvertent, the disclosing party took reasonable steps to prevent that disclosure and to rectify the error when it became apparent.^[147] Rule 502(b) was considered in Rhoads Industries Inc v Building Materials Corp. of America.^[148] This case highlights the increasing importance of being able to provide the court with detailed information regarding the search methodology used to identify privileged documents in order to assess whether a process is reasonable.

An order under Rule 502(d) allows the parties to a federal proceeding to enter into a "quick peek" agreement whereby (1) the responding party makes potentially relevant information available to opposing counsel for review; (2) opposing counsel identifies which information is relevant to its requests; and (3) the responding party then conducts a responsiveness and privilege review of the identified information only.^[149] The "quick peek" agreement allows the parties to avoid the heavy costs of a privilege review without waiving privilege

A similar arrangement, also made possible under Rule 502(d) is to enter into a “claw back" agreement. This differs from a "quick peek" agreement in that the parties agree to produce material in the usual manner without any intention that privilege be waived. If a privileged document is inadvertently produced, the producing party must inform the receiving party, who in turn must return the document and not use it in the litigation.^[150] Again, there must be a federal court order in order for the parties to take comfort that such disclosure will not result in waiver.

The purpose of both types of agreements is to reduce the cost associated with making absolutely sure that privileged information is not produced, and thereby inadvertently waived. This is reflected in a comment in Alcon Manufacturing Ltd v Apotex Inc, a case involving the inadvertent disclosure of an email: ^[151]

[p]erhaps the situation at hand could have been avoided had Plaintiffs’ counsel meticulously double or triple-checked all disclosures against the privilege log prior to any disclosures. However, this type of expensive, painstaking review is precisely what new Evidence Rule 502 and the protective order in this case were designed to avoid.

In the context of ESI costs are also reduced by the "quick peek" arrangement as they give the parties an opportunity to get a general understanding of the data which exists and may be relevant for discovery. If an opposing party has the ability to see a sample of the total set of data they may be able to request discovery in a more focussed manner and thereby reduce the amount of ESI which must be discovered or reviewed for privilege.

In Australia waiver of privilege occurs where a party entitled to privilege "performs an act which is inconsistent with the confidence preserved by it".^[152] Where waiver occurs there is also a risk that there may also be subject matter or issue waiver whereby the privilege in related communications or ESI are lost.^[153] However, Australian law is "inconsistent with the proposition that any voluntary disclosure to a third party necessarily waives privilege"^[154] and does recognise that disclosure of privileged communications in certain circumstances, such as pursuant to a confidentiality regime, may avoid waiver.^[155] Further, section 122(5) of the Uniform Evidence Law has the effect that privilege will not be lost if disclosed confidentially or under compulsion of law.^[156] A "claw back" or "quick peek" arrangement is aimed at preserving privilege in a situation where it otherwise may be waived through relying on confidentiality or compulsion. However, Australia has no equivalent of Rule 502(d) thus leaving the position to common law which is currently unsettled.

A “quick peek” or “claw back” agreement is, at its core, merely a voluntary agreement between parties binding them to certain confidentiality obligations. The doctrine of privity prevents a contract from being binding on a third party, or in a separate proceeding. Consequently, for the arrangements to be effective they need to avoid a waiver of privilege in the first place. Without any arrangement in place a "quick peek" may give rise to an express waiver because a party agrees to make privileged information available to a third party on the basis that they don’t examine it in any detail. Equally, a “claw back” is likely to involve an inadvertent waiver^[157] as the aim is to remove privileged material but if something is missed then it is returned by the opponent. The agreement with an opponent means that the opponent will not examine or inspect privileged information thus maintaining its confidential basis. A confidentiality regime may be effective with a "quick peek" arrangement as the party providing discovery is responsible for conducting the final privilege review. Under a "claw back" agreement a confidentiality regime assumes that the opponent can readily identify what is privileged information. Yet the case law on inadvertent disclosure is replete with examples where the document was not obviously privileged as an exception to waiver in those circumstances is when the inspecting party should realise that they have been permitted to see a confidential document only because of an obvious mistake.^[158] As a result, “claw back” agreements may not be effective in maintaining confidentiality nor privilege.

Where a court has ordered the parties to exchange documents, such as witness statements or expert reports, then once the document "has been disclosed pursuant to the rule, there can no longer be any question of privilege. It is not possible to assert a right to refuse to disclose in respect of a document which has already been disclosed."^[159] In ACCC v Cadbury Schweppes Pty Ltd the Full Federal Court found that:

there is no element of compulsion as to the nature and content of the evidence to be adduced where an order is made providing for the service and filing of witness statements ... . Whilst a party's ability to lead oral evidence at the trial is conditioned on notice of that evidence being provided in the form of a proof of evidence, the party is not compelled to disclose any particular information, document, or possible item of evidence. The party has the absolute discretion to decide what, if any, evidence is to be adduced on that party’s behalf. Until that decision is made proofs of potential witnesses, or other documents assembled for the purposes of the litigation, remain privileged from production. Any party may keep such information or documentary material to itself.^[160]

Similar reasoning may be applied to discovery in the sense that ordinarily the Court does not compel disclosure of privileged information, indeed, privilege is an exception to disclosure.^[161] However, a court order to adopt a “quick peek” or “claw back” arrangement may arguably amount to compulsion.^[162] The difficulty is that the issue has not been fully considered by a court exercising appellate jurisdiction and the issue is unlikely to be fully settled before it is considered by the High Court. The introduction of legislation to support "claw back" or "quick peek" arrangements is worthy of serious consideration as a way to control the cost of discovery, however where there is still the possibility that privileged information may be seen by an opponent lawyers and clients may still worry that the information may be be used consciously or unconsciously in the opponent’s litigation strategy.^[163]

Conclusion

This paper has sought to chronicle how developments such as electronically stored information, cloud computing and social media may impact on the discovery phase of litigation, including the preservation of legal professional privilege. The paper has also set out mechanisms for addressing these developments such as the pre-discovery conference, depositions and ‘quick peek’ or ‘claw back’ agreements. This impact of the Information Age on discovery will undoubtedly be a continuous one in which new technologies will present new challenges but for which there will also be new solutions.

---

^[+] Associate Professor, Faculty of Law, UNSW. B. Com (Hons), M. Com (Hons), LLB (UNSW) and LLM (UC-Berkeley), Solicitor of the Supreme Court of New South Wales and member of the New York Bar.

^[*] Final Year B. Com/ LLB Student, UNSW and Paralegal at Norton White.
^[1] Steve McConnell, Mass Torts Made Perfectly Convivial (2012), Drug and Device Law Blog available at <http://druganddevicelaw.blogspot.com.au/2012/02/mass-torts-made-perfectly-convivial.html> .
^[2] Michael Legg, Case Management and Complex Civil Litigation (2011) p.72.
^[3] The Radicati Group Inc, Email Statistics Report 2009-2013 - Press Release (2009) available at <http://www.radicati.com/?p=3237> .
^[4] Michael Legg, ‘Facebook: a cunning litigator’s best friend’, Sydney Morning Herald (Sydney), 30 November 2011 p13.
^[5] As cited by Michael Pelly, ‘Snail’s pace of corporate justice’, The Australian (Sydney), 29 June 2007 p31.
^[6] The Hon Raymond Finkelstein, Discovery Reform: Options and Implementation (2008), Joint Federal Court of Australia and Law Council of Australia Case Management Workshop, Adelaide, 14-15 March 2008, para 42.
^[7] On applications for an order for discovery (likewise under the former rules applications for leave to give a notice for discovery), the Court has a broad discretion and will balance the costs, time and possible oppression to the producing party against the importance and likely benefits to the applying party: United Salvage Pty Ltd v Louis Dreyfus Armateurs SNC [2006] FCA 116 at [3].
^[8] Federal Court Rules 2011 (Cth) r 20.13(2); r 20.14, r 20.15.
^[9] Federal Court Rules 2011 (Cth) r 20.14(1)(a).
^[10] Federal Court Rules 2011 (Cth) r 20.14(1)(c).
^[11] Federal Court Rules 2011 (Cth) r 20.14(3)(a)
^[12] Federal Court Rules 2011 (Cth) r 20.14(3)(b)
^[13] Federal Court Rules 2011 (Cth) r 20.14(3)(c)
^[14] Federal Court Rules 2011 (Cth) r 20.14(3)(d)
^[15] Federal Court Rules 2011 (Cth) r 20.15(3)
^[16] Federal Court Rules 2011 (Cth) r 20.15(1)(a) and (b)
^[17] Federal Court Rules 2011 (Cth) r 20.15(1)(c), (d) and (e)
^[18] Federal Court of Australia, Practice Note CM5 - Discovery, 1 August 2011 at [2a].
^[19] Ibid [2].
^[20] Ibid [3].
^[21] Ibid [2(c)(v)].
^[22] Second Reading Speech by the Minister for Home Affairs, House of Representatives, ACT, 23 November 2011.
^[23] Uniform Civil Procedure Act Rules 2005 (NSW) r 2.1(b).
^[24] Ibid r 21.2.
^[25] For a more detailed discussion see Dorne Boniface, Miiko Kumar and Michael Legg, Principles of Civil Procedure in New South Wales (2d ed 2012) [11.180].
^[26] "The Sedona Conference Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-Dscovery" (2008) 8 The Sedona Conference Journal 189 at 200.
^[27] The Hon Arthur Emmett, ‘Future Directions of Dispute Resolution: Reforming Discovery’ (Paper presented at the Dispute Resolution in the Next 40 Years: Repertoire or Revolution Conference, University of New South Wales, 2 December 2011) p 17 and Legg, above n 2, p 73.
^[28] See eg Supreme Court of Victoria, Practice Note 1 of 2007: Guidelines for the Use of Technology in any Civil Litigation Matter (2007) at [2.8.2], [6.7], Supreme Court of New South Wales, Practice Note SC Gen 7 - Use of Technology, 9 July 2008 at [12] and Federal Court of Australia, Practice Note CM6 - Electronic Technology in Litigation, 1 August 2011 at [7].
^[29] For examples of conferences, see University of Western Australia v Gray (No 2) [2005] FCA 1633; Sadiqi v Commonwealth [2008] FCA 1262; Hilditch Pty Ltd v Dorval Kaiun KK [2007] FCA 752 at 19 ("I propose to make orders suspending the operation of the rules caught in relation to pleading. I propose to provide the parties with a short period of time to produce the documents that I have identified. I propose then to direct the the parties to attend a case management conference with Deputy District Registrar Gilich, whether in person or by video link, for the express purpose of identifying all issues the parties say which are likely or which may arise."
^[30] Federal Court of Australia, Practice Note CM8, Fast Track, 1 August 2011, at [6.7]; Federal Court of Australia, Practice Note TAX 1, Tax List, 1 August 2011, at [5.4]; Federal Court of Australia, Practice Note CM 17, Representative Proceedings Commenced under Part IVA of the Federal Court of Australia Act 1976, 1 August 2011, at [3.4].
^[31] The Hon RS French, "The Role of the Trial Judge in Pre-trial Management", Manila, July 2004 p 12.
^[32] The Hon Kevin Lindgren, "Some Current Practical Issues in Class Action Litigation" (2009) 32(3) University of New South Wales Journal 900 at 902-903.
^[33] Emmett, above n 27, 16.
^[34] Fujitsu Ltd v Federal Express Corp [2001] USCA2 147; 247 F.3d 423 at 436 (2d Cir 2001), Treppel v Biovail Corp, 249 FRD 111 at 118 (SDNY 2008) and Pension Committee of University of Montreal Pension Plan v Banc of America Securities, 685 F Supp 2d 456 at 466 (SDNY 2010).
^[35] Paul Weiner and Mary Kay Brown, Navigating the New E-Discovery Rules (2007) 33 (2) Litigation 29 at 32.
^[36] Joseph Nicholson, ‘Plus Ultra: Third Party Preservation in a Cloud Computing Paradigm’ (2012) 8 Hastings Business Law Journal 191 at 196.
^[37] See eg Federal Court Rules 2011 (Cth) Dictionary “control, if referring to a document, means possession, custody or power” and Uniform Civil Procedure Act Rules 2005 (NSW) r 21.3 and Civil Procedure Act 2005 (NSW) s 3 “possession, otherwise than of land, includes custody and power”.
^[38] John Dvorak, ‘Megaupload Equals Mega Fail for Cloud Computing’, PC Mag, 30 January 2012 available at http://www.pcmag.com/article2/0,2817,2399578,00.asp and Jeremy Pelofsky, ‘Group seeks to save data on Megaupload servers’ Sydney Morning Herald, 3 February 2012 available at http://www.smh.com.au/technology/technology-news/group-seeks-to-save-data-on-megaupload-servers-20120203-1qw9c.html#ixzz1p9jEWAEP
^[39] Barbara Rothstein, Ronald Hedges and Elizabeth Wiggins, Managing Discovery of Electronic Information: A Pocket Guide for Judges (Federal Judicial Center 2007) p17.
^[40] See British American Tobacco Australia Services Ltd v Cowell [2002] VSCA 197; (2002) 7 VR 524, Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1985) 2 NSWLR 340 and Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264. See also Allison Stanfield, Computer Forensics, Electronic Discovery and Electronic Evidence (2009) p141.
^[41] Victorian Law Reform Commission, Civil Justice Review, Report 14 (2008) p 438.
^[42] See e.g. Civil Procedure Act 2005 (NSW) s61; Federal Court Rules 2011 (Cth) rr 1.32, 20.15 (formerly Federal Court Rules 1979 (Cth) Order 10 rule (1), (2)(a)(i)).
^[43] Federal Court of Australia, Practice Note CM 5 - Discovery, 1 August 2011 at [1]-[2].
^[44] See eg Civil Procedure Act 2005 (NSW) s56, Civil Procedure Act 2010 (Vic) s7 and Federal Court of Australia Act 1974 (Cth) s37M.
^[45] VLRC, above n 41, p 459.
^[46] Michele Lange and Kristin Nimsger, Electronic Evidence and Discovery: What Every Lawyer Should Know Now (2nd ed 2009) p 408-409.
^[47] Ibid p 409-410, 412.
^[48] Covad Communications Co v Revonet Inc 254 FRD 147 (D Columbia 2008).
^[49] Ibid at 151.
^[50] Brian Tamberlin and Lucas Bastin, Metadata and the Discovery of Electronic Evidence (2008) 36 Australian Business Law Review 457 and Lucia Cucu, The Requirement for Metadata Production under Williams v Sprint/United Management Co: An Unnecessary Burden for Litigants Engaged in Electronic Discovery (2007) 93 Cornell Law Review 221.
^[51] Michael Lasky and Marc Rachmann, From Preservation to Production: the Dos and Don'ts of E-Discovery in Litigation in Electronic Records Management and E-Discovery - Leading Lawyers on Navigating Recent Trends, Understanding Rules and Regulations, and Implementing an E-Discovery Strategy (2010) p 7.
^[52] White v Graceland College Center for Professional Development 586 F Supp 2d 1250 at 1264 (D Kan. 2008).
^[53] Chevron Corp v Stratus Consulting Inc 2010 WL 3489922 (D Colo 2010).
^[54] Ronald Levine and Susan Swatski-Lebon, Finding a Needle in an Electronic Haystack: The Science of Search and Retrieval (2009) 7 (1) Mass Torts 16.
^[55] The Sedona Conference Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-Discovery (2008) 8 The Sedona Conference Journal 189 at 200 and Lori Heilman, Federal Courts' Reactions to Inadequate Keyword Searches: Moving Toward a Predictable and Consistent Standard for Attorneys Employing Keyword Searches (2010) 78 University of Cincinnati Law Review 1103 at 1106-1107.
^[56] See eg Central Queensland Mining Supplies Pty Ltd v Columbia Steel Casting Co Ltd [2011] QSC 183 at [38], Newtronics Pty Ltd v Gjergja [2010] VSC 594 at [43], Westraint Resources Pty Ltd v BHP Iron Ore Pty Ltd [No 4] [2009] WASC 17 at [73]- [74], Different Solutions Pty Ltd v Commissioner, Australian Federal Police (No 2) [2008] FCA 1686 at [30], Re John Patrick Ford and Child Support Registrar [2007] AATA 1242 at [80] and Jarra Creek Central Packing Shed Pty Ltd v Amcor Limited [2006] FCA 1802 at [14]. See also Guy Carpenter and Company Pty Ltd v Grove [2011] FCA 708 at [26] in relation to an application for preliminary discovery.
^[57] Emmett, above n 27, p 5.
^[58] The Sedona Conference Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-Discovery (2008) 8 The Sedona Conference Journal 189 at 202.
^[59] Mia Mazza, Emmalena Quesada and Ashley Sternberg, In Pursuit of FRCP 1: Creative Approaches to Cutting and Shifting the Costs of Discovery of Electronically Stored Information (2007) 13 Richmond Journal of Law & Technology 11 at 52-62.
^[60] Ibid 63-68.
^[61] See e.g. Balboa Threadworks Inc v Stucky 2006 WL 763668 at *5 (D Kan 2006) and In re Seroquel Products Liability Litigation 244 FRD 650 at 662 (MD Fla 2007) (“[W]hile key word searching is a recognized method to winnow relevant documents from large repositories, use of this technique must be a cooperative and informed process.... Common sense dictates that sampling and other quality assurance techniques must be employed to meet requirements of completeness.”).
^[62] Mazza, Emmalena and Sternberg (2007), above n 59, 29, 82.
^[63] Jason Baron and Edward Wolfe, A Nutshell on Negotiating E-Discovery Search Protocols (2010) 11 Sedona Conference Journal 229.
^[64] William A Gross Const Associates Inc v American Mfrs Mut Ins Co 256 FRD 134 (SDNY 2009).
^[65] Ibid at 135-136.
^[66] See e.g. Capitol Records Inc v MP3tunes LLC 261 FRD 44 at 49 (SDNY 2009).
^[67] United States v O'Keefe 537 F Supp 2d 14 at 24 (DDC 2008) and Equity Analytics LLC v Lundin 248 FRD 331 at 333 (DDC 2008). See also Lori Heilman, Federal Courts' Reactions to Inadequate Keyword Searches: Moving Toward a Predictable and Consistent Standard for Attorneys Employing Keyword Searches (2010) 78 University of Cincinnati Law Review 1103 at 1113-1116 and Donald Wochna, Electronic Data, Electronic Searching, Inadvertent Production of Privileged Data: A Perfect Storm (2010) 43 Akron Law Review 847.
^[68] Central Queensland Mining Supplies Pty Ltd v Columbia Steel Casting Co Inc [2011] QSC 183 at [22].
^[69] Supreme Court of New South Wales, Practice Note SC Gen 7 - Use of Technology, 9 July 2008 at [12] and Supreme Court of New South Wales, Practice Note SC Eq 3 - Commercial List and Technology and Construction List, 10 December 2008 at [29]. See also Re HIH Insurance Ltd (2002) 41 ACSR 66 at [4] finding that a voluntary claw back agreement without any initial review of documents for privilege would "entail a very substantial reduction in the risk of waiver of legal professional privilege" and McGrath as liquidators of HIH Insurance Ltd (in liq) [2007] NSWSC 436.
^[70] George Paul and Bruce Hearon, The Discovery Revolution (2006) p 9.
^[71] Ibid 14.
^[72] Michael Legg, ‘The United States Deposition: Time for Adoption in Australian Civil Procedure?’ [2007] MelbULawRw 6; (2007) 31(1) Melbourne University Law Review 146, 152.
^[73] Ibid 155.
^[74] FRCP (30)(a)(1). Exceptions to this rule apply, such as where a party is deposing more than 10 people: FRCP r (30)(a)(2)(A)(i).
^[75] FRCP 30(a)(1). Leave is required if more than 10 depositions are to be taken by one party. See FRCP 30(a)(2).
^[76] See FRCP 30(b)(6).
^[77] FRCP 30(b)(1).
^[78] FRCP 30(b)(2) and (3).
^[79] FRCP 28(a) and FRCP 29
^[80] FRCP 30(d)(2).
^[81] FRCP 32(d)(3).
^[82] FRCP 30(c).
^[83] FRCP 30(d)(1).
^[84] FRCP 30(d)(1) and (4).
^[85] FRCP r 30(d)(1).
^[86] FRCP r 30(d)(2).
^[87] Victorian Law Reform Commission, Civil Justice Review: Consultation Paper (2006) [17].
^[88] VLRC, above n 41.
^[89] Ibid.
^[90] Ibid Recommendation 53.
^[91] Ibid Recommendation 56.
^[92] Ibid Recommendation 59.
^[93] Ibid Recommendation 67.
^[94] Finkelstein, above n 6, para 34.
^[95] Ibid para 31.
^[96] Legg (2007), above 72, 164.
^[97] Law Council of Australia, Final Report in Relation to Possible Innovations to Case Management (2006), Proposal 5(e) [127].
^[98] Legg (2007), above n 72, 164.
^[99] Law Council of Australia (2006), above n 97.
^[100] Michael Legg, Submission to ALRC, Discovery in Federal Courts, DR 07, 17 January 2011 p20.
^[101] Legg (2007), above n 72, 164.
^[102] Law Society of NSW, Submission to ALRC, Discovery in Federal Courts, DR 22, 28 January 2011; Contributors from the Large Law Firm Group, Submission to ALRC, Discovery in Federal Courts, DR 21, 25 January 2011; NSW Young Lawyers, Submission to ALRC, Discovery in Federal Courts, DR 19, 21 January 2011; Allens Arthur Robinson, Submission to ALRC, Discovery in Federal Courts, DR 10, 19 January 2011; Federal Justice Center, Manual for Complex Litigation (4th ed, 2004) [11.45].
^[103] Legg (2007), above n 72, 167.
^[104] John Setear, ‘The Barrister and the Bomb: The Dynamics of Cooperation, Nuclear Deterrence and Discovery Abuse’ (1989) 69 Boston University Law Review 569, 581-3.
^[105] Legg (2007), above n 72, 160.
^[106] Federal Court of Australia Act 1976 (Cth) s 46.
^[107] Second Reading Speech by the Minister for Home Affairs, House of Representatives, Australian Capital Territory, 23 November 2011.
^[108] Justice (Federal Jurisdiction) Amendment Bill 2011 (Cth), Schedule 1 (3).
^[109] Federal Court of Australia Act 1976 (Cth) s 46(a).
^[110] Federal Court of Australia Act 1976 (Cth) s46(c).
^[111] VLRC, above n 41, Recommendations 50-75.
^[112] Finkelstein, above n 6.
^[113] ALRC, Managing Discovery: Discovery of Documents in Federal Courts, Report 115 (2011) [10.121]-[10.129].
^[114] Legg (2011), above n 4, 13.
^[115] Facebook, Company Info: Fact Sheet – Statistics (2012) available at <http://newsroom.fb.com/content/default.aspx?NewsAreaId=22> .
^[116] Facebook Fans, Sydney Morning Herald, Business Day, 9 March 2012 p8 and http://press.experian.com/Australia/Press-Release/facebook-tops-6-billion-visits-in-australia-yet-consumers-still-wary-of-brand-engagement.aspx
^[117] James Grimmelmann, ‘Saving Facebook’ (2009) 94 Iowa Law Review 1137 at 1142-1144 and Michael O'Floinn and David Ormerod, ‘Social networking sites, RIPA and criminal investigations’ (2011) 10 Criminal Law Review 766 at 767.
^[118] Allison Clemency, "Friending," "Following," And "Digging" Up Evidentiary Dirt: The Ethical Implications Of Investigating Information On Social Media Websites (2011) 43 Arizona State Law Journal 1021 at 1024 and Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd (No 2) [2011] FCA 74 at [14]- [16].
^[119] Clemency, above n 118, 1025-1026.
^[120] Christopher E. Parker and Travis B. Swearingen, Tweet me your Status: Social Media in Discovery and at Trial (2012) 59 Federal Lawyer 34.
^[121] Facebook, Some other things you need to know – responding to legal requests and preventing harm (2012) available at <https://www.facebook.com/about/privacy/other>.
^[122] Twitter, Terms of Service available at< https://twitter.com/tos>.
^[123] Ethan J. Wall, Facebook, Other Networking Sites Look Like Plunder to Attorneys, Broward Daily Bus. Rev., Feb. 12, 2009, at 16.
^[124] Sandra Hornberger, Social Networking Websites: Impact on Litigation and the Legal Profession in Ethics,
Discovery and Evidence (2011) 27 Touro Law Review 279.
^[125] Romano v Steelcase Inc 907 N.Y.S.2d 650 (N.Y. Sup. Ct. 2010), Ledbetter v Wal-Mart Stores Inc 2009 WL 1067018, *1 (D. Colo. Apr. 21, 2009), Cikojevic v Timm, [2008] B.C.J. No. 72, [47] (Sup. Ct.) and Goodridge v King, 2007 CanLII 51161, [128] (Ontario S.C.).
^[126] Terry v Mulowney, [2009] N.J. No. 86 (S.C. (T.D.)).
^[127] Dexter v Dexter, 2007 WL 1532084, *6 (Ohio App. May 25, 2007).
^[128] Mai-Trang Tbi Nguyen v Starbucks Coffee Corp 2009 WL 4730899 (N.D. Cal. 2009).
^[129] See 121 American Jurisprudence Proof of Facts 3d 1 (Originally published in 2011).
^[130] Peter S. Kozinets and Aaron J. Lockwood, Discovery in the Age of Facebook, Arizona Attorney, Jul./Aug.
(2011) pg 1.
^[131] 2009 CanLII 6838 (ON S.C.)
^[132] Ibid at [28].
^[133] [2012] VSCA 8
^[134] [2012] FAMCA 24
^[135] [2012] FAMCA 7
^[136] [2011] FWA 8444
^[137] [2011] NSWCA 264
^[138] [2011] NSWCA 264
^[139] Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2003).
^[140] Hornberger, above n 124, 9.
^[141] A legal adviser generally has ostensible authority to act on behalf of a client in this regard, see Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd (1997) 145 ALR 391 at 403; Hooker Corporation Ltd v Darling Harbour Authority (1987) 9 NSWLR 538 and Spedley Securities Ltd (in liq) v Bank of New Zealand (1991) 26 NSWLR 711.
^[142] David Lender and Eric Lyttle, Assessing the Impact of FRE 502 (June 2010) For the Defense 16 at 17.
^[143] See eg Hopson v City of Baltimore 232 FRD 228 at 244 (D Md 2005) (electronic discovery may encompass "millions of documents" and to insist upon "record-by-record pre-production privilege review, on pain of subject matter waiver, would impose upon parties costs of production that bear no proportionality to what is at stake in the litigation").
^[144] George Paul and Jason Baron, Information Inflation: Can the Legal System Adapt? (2007) 13 Richmond Journal of Law & Technology 10 at 5.
^[145] The procedure in FRCP 26(b)(5)(B) is essentially that once the party receiving information subject to privilege is notified of the claim it cannot immediately use the information but must instead return it, provide it the court or destroy it, pending a determination of the claim by a court.
^[146] Lange and Nimsger, above n 46, 98.
^[147] Ibid.
^[148] Rhoads Industries Inc v Building Materials Corp. of America 254 FRD 216 (ED Pa 2008).
^[149] Jessica Wang, Nonwaiver Agreements after Federal Rule of Evidence 502: A Glance at Quick-Peek and Clawback Agreements (2009) 56 UCLA Law Review 1835 at 1843-1844.
^[150] Ibid at 1842 and Rajala v McGuire Woods LLP 2010 WL 2949582 at *3-4 (D Kan 2010).
^[151] Alcon Manufacturing Ltd v Apotex Inc 2008 WL 5070465 at *6 (SD Ind 2008).
^[152] Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at [29] and Uniform Evidence Law s 122.
^[153] Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475, AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30 and Seven Network Ltd v News Ltd (No 12) [2006] FCA 348; (2006) 230 ALR 544.
^[154] Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at [30] citing Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83.
^[155] See Australian Rugby Union Ltd v Hospitality Group Pty Ltd [1999] FCA 1061; (1999) 165 ALR 253, Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275, Meadon Pty Ltd v Nonmack (No 247) Pty Ltd [1994] FCA 1455; (1994) 54 FCR 200 and Hartogen Energy Ltd (in liq) v Australian Gas Light Company [1992] FCA 322; (1992) 36 FCR 557.
^[156] Uniform Evidence Law s 122(5)(a)(i) and (iii).
^[157] The inadvertent production of privileged information during discovery may amount to a waiver of the privilege. See Guinness Peat Properties Ltd v Fitzroy Robinson Partnership (a firm) [1987] 1 WLR 1027, Kabwand Pty Ltd v National Australia Bank Ltd (1987) 16 FCR 85 and Hooker Corporation Ltd v Darling Harbour Authority (1987) 9 NSWLR 538.
^[158] Guinness Peat Properties Ltd v Fitzroy Robinson Partnership (a firm) [1987] 1 WLR 1027 and GT Corp Pty Ltd v Amare Safety Pty Ltd [2007] VSC 123 at [11]. See also Bankim Thanki (ed), The Law of Privilege (2006) at [5.112].
^[159] Black & Decker Inc v Flymo Ltd [1991] 1 WLR 753. See also Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd [1994] FCA 1314; (1994) 53 FCR 125.
^[160] ACCC v Cadbury Schweppes Pty Ltd [2009] FCAFC 32 at [51]. In contrast state Courts of Appeal have considered that where privileged communications are disclosed through court order or directive, this is seen as a form of compulsion and that there has been "no express waiver or intentional use of the [communications] in a manner incompatible with the retention of privilege". See State Bank of South Australia v Smoothdale (No 2) Ltd [1995] SASC 5070; (1995) 64 SASR 224, Abigroup Ltd v Akins (1997) 42 NSWLR 623 at 635 and Akins v Abigroup (1998) 43 NSWLR 593.
^[161] See Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 at 127 and Comfort Hotels Ltd v Wembley Stadium Ltd [1988] 1 WLR 872 at 877-878; [1988] 3 All ER 53 at 57-58. See also Carter v The Managing Partner, Northmore Hale Davy & Leake (1994) 183 CLR 121 (subpoenas are not effective to require production of documents protected by legal professional privilege).
^[162] British Coal Corporation v Dennis Rye Ltd (No 2) [1988] 1 WLR 1113; [1988] 3 All ER 816 (Disclosure in accordance with a duty to disclose is not a waiver) and State of South Australia v Peat Marwick Mitchell [1995] SASC 5261; (1995) 65 SASR 72 at 82.
^[163] Laura Catherine Daniel, The Dubious Origins and Dangers of Clawback and Quick-Peek Agreements: An Argument Against Their Codification in the Federal Rules of Civil Procedure (2005) 47 William & Mary Law Review 663 at 684.