NOTES FOR ETHICS SESSION AT SUNSHINE COAST CPD 20 AUGUST 2011 The Uniform Civil Procedure Rules deal with Disclosure in Chapter 7. Chapter 7 concerns disclosure and inspection of documents; interrogatories and non‐party disclosure. We intend here to deal with the topic of ethics in the context of the disclosure and inspection of documents. We intend also to deal with the topics of (to be inserted). The topic of disclosure and inspection of documents gives rise to the need to exercise judgment in the context of documents which are or are not directly relevant to an issue in the proceedings; the breadth of the meaning of “document” and, in particular, the disclosure of documents in electronic form; the ongoing nature of duty of disclosure and the prospect that adverse documents might, at an advanced stage of the litigation, be discovered; whether or not there is a valid claim to privilege; how to disclose documents over which privilege is claimed; whether or not a document relates only to credit; what is or is not a statement or report of an expert; whether or not a document relates only to damages. These issues and their like give rise to one of the most challenging legal ethical problems: the conflict between advocating a client’s case and performing the public duty upon lawyers to ensure the due administration of justice. The nature of this challenge has changed over time. More so than ever before, lawyers are charged not only with the obligation of representing their clients but also with playing their role in the administration of justice. This is reflected by the duties upon parties under rule 5 of the Uniform Civil Procedure Rules; and by the duty upon lawyers to ensure their clients comply with the rules relating to the conduct of litigation. Over the last two decades or so duties upon lawyers have more onerous in respect of the expedient conduct of litigation (compliance with time limits, directions, efforts to narrow the issues); fulsome and accurate pleadings; ensuring the early exchange of experts reports and drafts; early and accurate representation of the quantum of plaintiff’s claims; and the proper conduct of settlement negotiations. We lawyers operate in a very different environment from that which existed not long ago, when a party could issue a plead a bland denial of an allegation in a plaint; when we could happily disregard unfavourable medical reports; when the quantification of a plaintiff’s claim took place by way of evidence from the witness box; when directions hearings were unheard of and a failure to be ready on time almost always meant an adjournment. And the process goes on. New questions evolve with new technologies and electronic data today is challenging rules thought relatively straight forward in their operation only yesterday. General observations about “ethical duties” Duties are imposed on lawyers from different sources. There are “ethical” duties laid down by the professional bodies. These were historically administered by the profession, although now they may be regulated by the Court or by the Legal Services Commission. They range widely, from the etiquette of behaviour between fellow professionals to the duties owed to clients. The substantive law imposes contractual, tortious and fiduciary duties on lawyers. And there are duties owed to the Court. What are they? Jutice Ipp in his article attempts to gather the principal duties owed to the Court into four categories: the duty of disclosure owed to the Court; the general duty not to abuse the Court process; the general duty not to corrupt the administration of justice; and the general duty to conduct cases efficiently and expeditiously. Of these, the first three are derived from the public interest in ensuring that the administration of justice is not subverted or distorted by dishonest, obstructive or inefficient practices. Justice Ipp says: “The essence of these duties is the requirement for lawyers (within the context of the adversarial system) to act professionally, with scrupulous fairness and integrity and to aid in promoting the cause of justice. By their nature these requirements are immutable, but the content of the particular duties that flow therefrom may change over time as litigation practices and social values change”. ( citing Wallersteiner v Moir (No 2) [1975] QB 373 at p402; Myers v Elman at p319) This more general description encapsulates the proposition that, whatever the law for the time being concerning the conduct of litigation, a lawyer’s ethical duty is to ensure the client is properly informed concerning its litigation duties. The public interest is the source of a lawyer’s duty to the courts (Rondel v Worsley [1969] 1 AC 191 at 227) and the Court in enforcing the duty is acting “as trustee and guardian of the due administration of justice” (Ipp, “Lawyer’s Duties to the Court”, (1998) 114 LQR 63 at 63). Since time immemorial the courts have assumed the inherent power to impose those duties: Myers v Elman [1940] AC 282 at p302 per Lord Atkin. The source of a lawyer’s duties to the court is the substantive, general law. The obligations are personal in nature and they cannot be delegated: Myers v Elman (supra). To the categories identified by Justice Ipp should be added the observations by Buckley LJ in Wallersteiner v Moir (No 2) [1975] 1 QB 373 at 402, that a solicitor retained to conduct litigation is not merely the agent and adviser to his client, but also an officer of the court with a duty to the court to ensure that his client’s case, which he must prepare and present and conduct with the utmost care for his client’s interests, is also presented and conducted with scrupulous fairness and integrity. It seems to me that What is a solicitor’s duty upon disclosure In Myers v Elman [1940] AC 282 at 304 Lord Atkin said; “He (the solicitor) is at an early stage of the proceedings engaged in putting before the Court on the oath of his client information which may afford evidence at the trial. Obviously he must explain to his client what is the meaning of relevance: and equally obviously he must not necessarily be satisfied by the statement of his client that he has no documents or no more than he chooses to disclose. If he has reasonable ground for supposing that there are others, he must investigate the matter; but he need not go beyond taking reasonable steps to ascertain the truth. He is not the ultimate judge, and if he reasonably decides to believe his client, criticism cannot be directed to him. But I may add that the duty is specially incumbent on the solicitor where there is a charge of fraud; for a wilful omission to perform his duty in such a case may well amount to conduct which is aiding and abetting a criminal in concealing his crime, and in preventing restitution”. Lord Wright said, at 322: “The order of discovery requires the client to give information in writing and on oath of all documents which are or have been in his corporeal possession or power, whether he is bound to produce them or not. A client cannot be expected to realise the whole scope of that obligation without the aid or advice of his solicitor, who therefore has a peculiar duty in these matters as an officer of the court carefully to investigate the position and as far as possible see that the order is complied with. A client left to himself couold not know what is relevant, nor is he likely to realize that it is his obligation to disclose every relevant document, even a document which would establish, or go so far to establish, against him his opponent’s case. The solicitor cannot simply allow the client to make whatever affidavit of documents he thinks fit nor can he escape the responsibility of careful investigation or supervision. If the client will not give him the information he is entitled to require or if he insists on swearing an affidavit which the solicitor knows to be imperfect, then the solicitor’s proper course is to withdraw from the case. He does not discharge his duty in such a case by requesting the client to make a proper affidavit and then filing whatever affidavit the client thinks fit to swear to.” And (at 324‐325): “It would be a gross breach of duty to the Court in a matter of discovery like this for a solicitor to accept his client’s bare word as to what was relevant, and not himself examine the documents, at least when regard is had to the general background of the case, and to all that the solicitor must have known of his client’s character and surroundings”. Viscount Maugham said (at 293‐294): Suppose that in such a case the client swears an affidavit of documents which discloses nothing relating to the frauds alleged in the statement of claim and suppose that the solicitor has previously given his client full and proper advice in the matter but has no good reason to suppose that the affidavit is untrue, it may be asked what else ought the most punctilious solicitor to do? My answer is nothing at that time. But suppose that, before the action comes on for trial, facts come to the knowledge of the solicitor which show clearly that the original affidavit by his client as defendant was untrue and that important documents were omitted from it, then what is the duty of the solicitor? I cannot doubt that his duty to the plaintiff, and to the Court, is to inform his client that he, the solicitor, must inform the plaintiff’s solicitor of the omitted documents, and if this course is not assented to he must cease to act for the client. He cannot honestly contemplate the plaintiff failing in the action owing to his client’s false affidavit. That would, in effect, be to connive in a fraud and to defeat the ends of justice. A solicitor who has innocently put on file an affidavit by his client which he has subsequently discovered to be certainly false owes it to the Court to put the matter right at the earliest date if he continues to act as solicitor on the record”. Disclosure of electronic data Rule 211 sets out a party’s duty of disclosure. Parties are required to disclose “documents”. A “document” is defined in the Acts Interpretation Act 1954, s 36, to include “any disc, tape or other article or any material from which sounds, images, writings or messages are capable of being produced or reproduced (with or without the aid of another article or device”. One difficulty presented by the necessity to disclose electronic data is the fact that the stored data may differ from the hard copy produced upon printing it. At least one Federal Court in the United States has ruled that a party must produce documents with the metadata intact when ordered to supply documents produced in the normal course of business: Williams v Sprint/United Mgmt. Co 2005 WL 2401626 (D Kan Sept 29, 2005)1. Parties may, of course, agree to exempt metadata from disclosure. Presumably, one could disclose the computer chip holding the relevant information. However, the practical answer probably lies in rule 212, which exempts from the duty of disclosure “an additional copy of a document already disclosed, if it is reasonable to suppose the additional copy contains no change, obliteration or other mark or feature likely to affect the outcome of the proceeding”. Thus, if a hard copy of a document stored electronically is disclosed, it is unnecessary to disclose an electronic copy of it which is materially the same. 1
Cited in Fayle, K, E‐Discovery: ABA Ethics Opinion Approves of Metadata Use, FindLaw, Jan 18 2007 A further constraint is the requirement that the document be directly relevant (rule 211); and that it not be relevant only to credit (rule 212). What is data stored electronically? One commentator has divided electronic evidence into four categories: active, replicant, archival and residual data2. Active data is accessible to the computer user and is located on the user’s hard driveand/or network server. Replicant data are cloned files, such as date that can be retrieved through the undo and redo buttons; archival data is saved on back‐up tapes in a non‐user friendly format. Residual data consist of deleted files and emails. There is a fifth category now identified: metadata3. Metadata is electronically stored data that relates to a document and may consist of the author’s name; creation and edit dates; and revision history. What are the electronic data traps and issues4: 1. Failing to conduct reasonable inquiry regarding electronically stored information. In an American case called Qualcomm Inc v Broadcom Corp Corp 2008 WL 66932 (S.D. Cal. Jan 7, 2008) a Qualcomm witness in cross examination admitted receiving emails that were not produced during discovery. The court found that the attorneys had contributed to the discovery violation because they chose to accept the unsubstantiated assurances of the client that its searches were sufficient and ignored signs that Qualcomm’s document search and production were inadequate. The Courts there have held that attorneys are under a duty to take independent action to verify the adequacy and completeness of discovery searches. Attorneys, it is said, should actively document their efforts to supervise e‐
discovery production, including communications with clients and agents, in anticipation that the reasonableness and thoroughness of the e‐discovery process may later be examined by a court. If attorneys lacked the expertise to supervise e‐discovery they were obliged to take the necessary steps to be able to do so. 2. Relying upon improperly designed or executed keyword searches. A faulty searching process can result in waiver of legal professional privilege over documents inadvertently disclosed. This can obviously constitute a breach of obligation to the client. Suggested safeguards include checking of an adequate sample; and a “clawback” or “non‐waiver” agreement with the opponent, in order to provide additional protection against waiver. 3. Exposing confidential information to “metadata miners”. Metadata is “data about data”. Metadata mining refers to the practice of searching for and 2
Caulfield, Svihra, Electronic Discovery Issues for 2002: Requiring the losing party to pay for the costs of electronic discovery, 2 Sed 3
The SEDONA PRINCIPLES, supra note 2, at 5 n9 4
Awsumb, SM, Navigating E‐Discovery: How to Avoid Common Pitfalls, Bench & Bar of Minnesota, Vol 65, No 9, October 2008 exploring information embedded in electronic documents. Meta data might for example reveal substantive changes made to a document, hidden text, author comments and document versions and revisions. These issues arise in respect of meta data: a. Lawyers should not alter or scrub metadata from discovery documents or face sanction for spoliation of evidence: eg Ameriwood Indus., Inc v Liberman, No 06‐524,2007 WL 5110313 at*1 (ED Mo July 3, 2007). There, the defendants use of scrubbing software to delete computer files and metadata warranted sanctions including entry of default judgment for the plaintiff); b. Is there an issue about whether you are entitled to mine for the information? 4. Failing to disclose the receipt of inadvertently produced documents. What is a lawyer ethically obliged to do when he or she receives documents which are believed to have been inadvertently disclosed. Our rules do not deal directly with the issue. Prior to the Civil procedure rules in England, in Breeze v John Stacey & Sons Ltd [1999] All ER (D) 648 and English and American Insurance Co Ltd v Herbert Smith & Co [1988] FSR 232, injunctions were granted to restrain use of privileged documents that had been mistakenly disclosed. In the Civil Procedure rules in England it is now provided that “where a party inadvertently allows a privileged document to be inspected, the party who has inspected the document may use it or its contents only with the permission of the court”: CPR Rule 31.20. It is tolerably clear that where a party has reason to believe that a document has been inadvertently disclosed the recipient should bring the document to the attention of the disclosing party. Thus, in Hooker Corporation Ltd v Darling Harbour Authority (1987) 9 NSWLR 538, Rogers J held (at 541) that where a litigant is bound by a Court to comply with an accelerated compulsory discovery process and inadvertently or unintentionally includes a protected document in the list of documents, which is subsequently produced and inspected, the privilege which would otherwise attach to the document will not necessarily be held to have been waived by the litigant, and the Court must reconcile the requirement for the speedy resolution of disputes and the interests of justice and decide whether it is fair in all the circumstances of the case to allow the plaintiff client privilege to be maintained. Spoilation of evidence and destruction of documents The willingness of the court to make orders in civil proceedings as a consequence of the destruction of evidence will depend upon when the destruction occurred in relation to the court proceedings and upon whether the destruction was a deliberate attempt to subvert the administration of justice. The nature of any intervention by the court will depend on the circumstances and what was required to ensure that the attempt to distort the course of justice did not succeed: see Fuji Xerox Australia Pty Ltd v Lee [2003] QSC 303. The available remedies include dismissal of the plaintiff’s proceedings or of a defence, to the drawing of adverse inferences in the court’s consideration of the evidence. In British American Tobacco Australia Services Ltd v Cowell (as representing the estate of Rolah Ann McCabe, deceased) [2002] VSCA 197 the Victorian Court of Appeal held that where one party alleges against the other the destruction of documents before the commencement of the proceedings to the prejudice of the party complaining, the criterion for the court’s intervention (otherwise than by the drawing of adverse inferences, and particularly if the sanction sought is the striking out of the pleading) is whether the conduct of the other party amounted to an attempt to pervert the course of justice or, if open, contempt of court before the litigation was on foot. (see also Fuji Xerox Australia Pty Ltd [2003] QSC 303 per Chesterman J at [8]. The offence of perverting or attempting to pervert the course of justice applies to proceedings which are not yet on foot. In R v Rogerson (1992) 174 CLR 268, Mason CJ said (at 277)5: “It is well established at common law and under cognate statutory provisions that the offence of attempting or conspiring to pervert the course of justice at a time when no curial proceedings are on foot can be committed. This is because action taken before curial or tribunal proceedings commence may have a tendency and be intended to frustrate or deflect the course of curial or tribunal proceedings which are imminent, probable or even possible”. Hence, where the destruction amounts to the offence of perverting the course of justice (to be proven on the balance of probabilities) the court may order that the proceedings be stayed or struck out. If the destruction does not amount to an attempt to pervert the course of justice, then the Court may nonetheless draw inferences against the party responsible for the destruction. After the commencement of proceedings the destruction of evidence may have the consequence of the dismissal of the proceedings or the drawing of adverse inferences. Regulation 177 of the Legal Profession Regulation 2005 (NSW) provides that a legal practitioner must not give advice to a client to the effect that a document should be destroyed if it is “likely that legal proceedings will be commenced in relation to which the document may be required”. Some legislative provisions, such as section 9 of the Crimes Act 1914 (Cth) provide heavy penalties for any person who intentionally destroys documents that are or may be required in evidence in a judicial proceeding. 5
See also Brennan and Toohey JJ (at 281) and McHugh J (at 305) The Legal Profession (Solicitor’s) Rule 2007 (Qld) does not refer expressly to disclosure. It provides within its objects however that “a solicitor should not, in the course of engaging in legal practice, engage in, or assist, conduct which is ... prejudicial to the interests of justice”. Draft reports Rule 212, it appears, extends to draft reports, so that by rule 212(2) a document or statement consisting of a draft report of an expert is not privileged from disclosure: see Mitchell Contractors Pty Ltd v Townsville-Thuringowa Water Supply
Joint Board [2005] 1 Qd R 373 at para 13.
In Mitchell Contractors Pty Ltd v Townsville‐Thuringowa Water Supply Joint Board10 the dispute over disclosure concerned draft reports of two experts whose final reports had been disclosed in accordance with the Queensland Rule. Of the judgments in Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1)11 Douglas J observed, with respect, correctly, that Pincus JA “did not deal with the issue of whether a draft report which was prepared for the purpose of discussion with the defendant’s solicitors and counsel was a statement or report of an expert for the purposes of” the relevant Queensland Rule. He noted that Thomas J would not have characterised the draft reports as a “statement or a report”. Nevertheless, he continued, in relation to the issue before him:12 In my view the answer to the question may be sought by asking whether a draft statement or report by an expert is nonetheless his statement or report even though it might not be his final view. If an expert has prepared a draft report it is still his report or statement, no doubt normally reflecting his state of mind at the time he wrote it. The fact that, after consultation with lawyers in an action, he may prepare a further report or amend the draft does not prevent the draft from meeting the description in the rules. Such a document seems to me to be different from the working papers and valuations of other properties referred to by Thomas J in Interchase. That was the approach adopted by Derrington J in Natwest Markets Australia Pty Ltd v Colliers Jardines (Qld) Pty Ltd (No 3141 of 1996; 22 April 1998, unreported). Is there a distinction between a draft report and “discussion notes” which an expert might be asked to bring with him or her to a conference? Is it appropriate to say to an expert that the client does not require a report at this point, but that the solicitor and the client wish to meet with the expert once he has had an opportunity to consider the matter to discuss it with him? In Mazelow Pty Ltd v Herberton Shire Council [2001] QSC 250 at 4 cullinane J stated: However, I do not think it is necessary that the report or statement be constituted wholly or substantially by expressions of opinion. For example some areas of expertise may not involve expressions of opinion but rather the presentation of data established by scientific means.