Interim disclosure orders

11.145 In its Civil Justice Review, the VLRC recommended another alternative to traditional discovery—‘interim disclosure orders’.^[231] In order to reduce the delays and costs arising from discovery, the VLRC recommended that a court would have the discretion to order a party to provide another party with access to all documents in the first party’s possession, custody or control that fall within a general category or general description of issues in dispute in the proceedings, subject to:

• the documents falling within a category of documents where such a category or description is approved by the courts;

• ‘the documents are able to be identified and located without unreasonable burden or unreasonable cost to the first party’;

• ‘the cost to the first party of differentiating documents within such a general category or description which are (i) relevant or (ii) irrelevant to the issues in dispute between the parties are in the opinion of the court excessive or disproportionate’;

• ‘access to irrelevant documents is not likely to give rise to any substantial prejudice to the first party which is not able to be prevented by way of court order or agreement between the parties’; and

• ‘access is to facilitate the identification of documents for the purpose of obtaining discovery of such identified documents in the proceedings’.^[232]

11.146 Access does not allow the other party to copy, produce or make records of, photograph or otherwise use—either in connection with the proceedings or in any other way—documents or information examined as a result of such inspection.^[233] However, there would be a practical exception to allow the other party to describe or identify an examined document for the purposes of obtaining discovery of such an identified document in the proceedings.^[234] Other safeguards include access being limited to lawyers for a party, and any disclosure not giving rise to a waiver of privilege.^[235]

11.147 The VLRC considered that such interim access would: facilitate access to documents quickly; avoid the party in possession spending time reviewing such documents prior to the determination of what documents should be produced by way of discovery and the necessity of preparing a list of documents; and transfer the cost of initially reviewing the documents to the party seeking the documents.^[236]

11.148 The VLRC’s recommendation bears similarities to a practice note applying in the Commercial List and Technology and Construction List in the NSW Supreme Court’s Equity Division.^[237] Under the practice note, a party may ‘take a peek’ at an opponent’s database of documents on a ‘without prejudice’ basis.^[238] The parties may then call for the production of particular non-privileged documents they wish to obtain, and the court may grant discovery.^[239]

11.149 The VLRC’s recommendation does not appear to have been specifically included in the suite of recommendations that were adopted and implemented by way of the enactment of the Civil Procedure Act 2010 (Vic). However, that Act empowers a court to ‘make any order or give any directions in relation to discovery that it considers necessary or appropriate’.^[240] An order for interim disclosure may be such an order.

Submissions and consultations

11.150 In the Consultation Paper, the ALRC asked whether there was a need for new procedures for access to information in civil proceedings, such as ‘interim disclosure orders’.^[241] Only three submissions addressed this question.^[242]

11.151 The Law Council appeared to support the approach, as it was of the general view that:

[a] proposal … that facilitate[s] the parties’ understanding of the relevant dispute/s and the provision of access to relevant information for this purpose allows for higher prospects of settlement and/or the efficient conduct of the proceedings.^[243]

11.152 Legg provided a personal anecdote to demonstrate that the Federal Court’s case management powers were already sufficiently broad to ‘craft’ such procedures. He explained that he had

previously acted for a client that provided discovery in federal court proceedings in a manner similar to that described for interim disclosure orders. The author’s client collected all of its documentation that was relevant to the case based on a general discovery approach and then allowed the opponent to informally inspect the documents to indicate which materials it wanted discovery of. The subset indicated by the opponent then became the client’s discovery. This approach differed from the interim disclosure orders described in that a review of all documentation took place before informal inspection was granted.^[244]

11.153 Legg then referred to the relevant law in both the United States and Australia on the issue of preventing waiver of privilege when a party voluntarily provides access to privileged documents to their opponent by way of ‘quick peek’ and ‘claw back’ agreements. A ‘quick peek’ agreement refers to the situation where party A’s counsel is permitted to review party B’s relevant information; and party B only conducts its privilege review afterwards, in respect of that information which has been identified as being relevant by party A’s counsel.^[245] By contrast, in a ‘claw back’ agreement ‘the parties agree to produce material in the usual manner without any intention that privilege be waived’.^[246] Legg stated that, to his knowledge, ‘there is no case law [in Australia] specifically applying [the relevant] principles to interim disclosure orders containing “quick peek” or “claw back” agreements’.^[247] He concluded:

There must be some level of uncertainty as to the effectiveness of such procedures in protecting privilege which may make lawyers and parties wary about adopting them, even if they could reduce costs. A court rule or statutory solution may be needed to provide certainty.

It should also be noted that even if waiver of privilege is avoided the content of the privileged information is still seen by an opponent who may consciously or unconsciously use that knowledge in their litigation strategy. Some parties will not want to take this risk.^[248]

11.154 The need to adequately address issues such as privilege, confidentiality, and the use of the documents was also of concern to the group of large law firms.^[249] For this reason, they did not agree with the use of interim disclosure orders.

ALRC’s views

11.155 The ALRC notes the concerns expressed in submissions about the need to ensure that privilege is not waived in circumstances where that is not the parties’ intention. However, detailed consideration of this issue is outside the scope of this Inquiry.

11.156 The ALRC notes that a key feature of the model for interim disclosure orders, recommended by the VLRC in its Civil Justice Review,^[250] is that the documents are able to be identified and located without unreasonable burden or unreasonable cost to the first party. It is unclear from Legg’s anecdote whether, in that case, the prior privilege review of the documentation was so extensive as to be considered an unreasonable burden or unreasonably costly. If such a privilege review can be conducted, without unreasonable burden or cost, then arguably at present it is open to the Federal Court to order, or open to a party to request an order for the kind of interim disclosure order that Legg mentioned.