Discovery is a process often required in civil proceedings in most Australian jurisdictions. During discovery, you must provide your opponents with any documents related to the case before the Court. Discovery ensures that parties are able to obtain proper advice from their solicitors, consider their prospects of success and effectively prepare their case prior to trial. This allows parties to avoid any surprises at the hearing and encourage the settlement of disputes.

In the Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd (No 6) [2020] NSWSC 1883, Justice Stevenson made orders, one of which included an order that the defendants give discovery of certain email correspondence.

Those orders for discovery were for the following documents:

Documents held by the First Defendant and created between 23 March 2018 and 9 April 2019 (inclusive):

  1.  Emails (including attachments) sent to or from any email address on the [an identified domain] which [contain certain keywords];
  2.  Emails (including attachments) sent to or from any email address associated with [three named people] [containing identified keywords].
  3. Emails (including attachments) sent to or from any email address on the [an identified domain] which meet any of the [above] criteria…

The parties sought guidance as to what those orders specifically required.

In ascertaining the interpretation of the Orders, his Honour noted that Court orders are subject to “ordinary rules of construction” and that the Court does not enquire the subjective intentions of the judge or magistrate making the orders. This is also where he did not draft the orders sought; instead, it was the plaintiff that included this in their motion for discovery.

The plaintiffs submitted to the Court that the orders should be:

“… interpreted so that if one email in a thread or part of a document includes the relevant term or falls within the required category, the whole email thread or document is produced, rather than just the component of the relevant document that uses the relevant term or falls within a required category”.

His Honour confirmed that the orders required production of documents created during the specified timeframe, and any attachments to the emails within this time period must be produced in full, whether or not those attachments include any keywords.

The defendants noted that with respect to the documents to be produced, they would seek to maintain confidentiality for commercially sensitive material. For the documents that could not be agreed upon between the parties, the defendants sought orders to allow them to apply for leave from the Court within two days for confidentiality to be maintained.

His Honour noted that if the documents to be produced included commercially sensitive information, arrangements could be made to accommodate and protect the defendants’ legitimate interest by way of an appropriate commercial confidentiality regime. Absent any orders by the Court permitting redactions in the emails, and all documents were required to be produced subject to any claim for legal professional privilege.


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