Tag Archives: discovery

Don’t let Redaction drive you to Distraction

It is surprisingly common to hear that a party has uplifted documents produced under subpoena only to find that large chunks of them have been redacted.

The producing party it seems has taken it upon itself to decide whether the information is sensitive or otherwise not relevant to the proceedings and acted accordingly. Extremely annoying! 

In these circumstances, I suggest citing the decision of Fagan J in LG v Brian Brock as executor of the estate of the late Leo Clarke [2016] NSWSC 323 along with some polite advice that such choices are the domain of the Court and not the subpoena recipient. If that fails, get a motion on seeking to have the documents produced in their unredacted form.

In LG, the plaintiff alleged certain historic abuse had been committed against her by a priest and sought documents from various parties under subpoenas directed at information revealing any other complaints made by others against said priest.

The producing parties redacted the name and contact details of certain persons mentioned in the documents on what appeared to be the basis of relevance. The gravamen of the relevance objection argued in Court (and the basis for the unilateral decision to redact before production) appeared to be that the persons that would otherwise have been identified had made complaints only after the period of alleged molestation suffered by the plaintiff.

His Honour was unconvinced, explaining that on broad principles of relevance as they relate to subpoenas (ie. adjectival relevance), it is clear that the redacted details could well for example, lead to evidence being given by the unrevealed persons such as complaints made to the defendant by persons other than from themselves (eg. their parents, teachers and the like).   

There was also passing reference in the judgment to a line of decisions that appeared to support redaction of documents when they are produced under discovery. His Honour found however that this did not apply by analogy to subpoenaed documents, as the addressee parties argued it should.

His Honour did envisage circumstances where it may be appropriate to redact documents before they’re produced under subpoena (eg. if the part revealed a “protected confidence” under s126B of the Evidence Act 1995), but the producing party may only do so with the Court’s imprimatur via exercise of its discretion under UCPR (NSW) 33.8; the same rule that empowered it to rule that the documents in LG should be produced in their unredacted form.

None of this is earth shattering stuff I suppose but useful to have in your kit bag all the same.    

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Filed under Civil, notices to produce

Setting Aside a Notice to Produce – Patonga Beach Holdings

 

Most notices to produce served on one party by another in litigation are issued pursuant to rule 21.10 of the NSW Uniform Civil Procedure Rules. This distinction is important, as that rule is much narrower in its application than the rule that applies to a notice requiring production to court, which should be issued under rule 34.1.

 

If you are in the common situation of an opponent fishing around for information to which you say they are not entitled, you always have the standard avenues of resistance at your disposal: relevance, fishing, oppression and privilege. However, these arguments often have grey areas on which your opponent can rely in pressing for your client to either provide access to the documents or put on an application to set the notice aside. Often, the expense and inconvenience of the latter course is one your client would prefer to avoid.

 

An examination of the words of rule 21.10 show that in fact, a notice to produce issued under it should be quite specific about what is being sought. It isn’t permissible to ask for documents which fall into a broad category or that were created within a specified period or range of dates, even if those documents might otherwise appear relevant.

 

The test is considerably narrower than that, as Barrett J’s decision in Patonga confirms:

 

“[11] It is thus clear that, in rule 21.10, the combination of “specific document” and “clearly identified” means that a notice can relate only to a document described by means of characteristics peculiar to itself, such as a letter of a given date written by X to Y, or the minutes of a meeting of directors of Z Limited held on a given date. A notice relating to all letters written by X to Y in 2008 or the minutes of all meetings of the directors of Z Limited held in 2008 would not be permitted because referring to a class of document as distinct from what Harrison AsJ in        Douglas Corporation v Currico Nominees [2007] NSWSC 113 termed “the individual document sought” is not a permissible course.

 

Next time you’re served with a notice to produce that your client wishes to resist, you might well be able to have your opponent abandon it with a firm letter inclusive of a reference to Patonga in support of your position.

 

Of course, this doesn’t stop them from having it re-issued under rule 34.1 but at least you can argue against it on the return date, rather than having to file a notice of motion and supporting affidavit to set it aside as you would have to do in response to a rule 21.10 notice.

 

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Filed under Civil, notices to produce