Armstrong Strategic Management and Marketing Pty Limited & Ors v Expense Reduction Analysts Group Pty Ltd & Ors [2012] NSWSC 393

Armstrong Strategic Management and Marketing Pty Limited & Ors v Expense Reduction Analysts Group Pty Ltd & Ors [2012] NSWSC 393

For documents whose duplicates or substantially identical documents were listed in privileged or redacted sections, it was reasonable to infer that the defendants intended to claim privilege and that their inclusion in the open section and production for inspection were inadvertent, so privilege was not waived. For documents 9, 10, 11 and 19, there was no evidence showing an intention to claim privilege over those specific documents; their inclusion and production were not proved to be inadvertent, and privilege was waived.

Jurisdiction
Australia
Judgment Date
26 April 2012
Procedural Posture
Interlocutory Application in Equity Division Proceedings / Notice of Motion and Amended Notice of Motion Seeking Restraint on Use and Delivery Up of Documents Disclosed in Discovery
Outcome
Defendants' amended motion substantially granted, excluding documents numbered 9, 10, 11 and 19.
Legal Topics
['discovery' 'disclosure' 'inadvertent Disclosure' 'waiver of Privilege' 'inspection of Documents' 'electronic Document Review']
['civil Procedure' 'evidence' 'legal Professional Privilege'] ['discovery' 'disclosure' 'inadvertent Disclosure' 'waiver of Privilege' 'inspection of Documents' 'electronic Document Review']

Case Brief

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Procedural Posture

Interlocutory Application in Equity Division Proceedings / Notice of Motion and Amended Notice of Motion Seeking Restraint on Use and Delivery Up of Documents Disclosed in Discovery

Legal Issues

  1. 1 ['Whether privileged documents listed in the non-privileged section of Verified Lists of Documents and produced for inspection were disclosed inadvertently or by mistake.' 'Whether listing and production of the documents waived legal professional privilege.' 'Whether it would be unfair to require the plaintiffs to return the documents after inspection by the third plaintiff.' 'Whether Practice Note SC Eq 11 Disclosure in the Equity Division illustrates a different regime for disclosure after service of evidence.']

Ratio Decidendi

For documents whose duplicates or substantially identical documents were listed in privileged or redacted sections, it was reasonable to infer that the defendants intended to claim privilege and that their inclusion in the open section and production for inspection were inadvertent, so privilege was not waived. For documents 9, 10, 11 and 19, there was no evidence showing an intention to claim privilege over those specific documents; their inclusion and production were not proved to be inadvertent, and privilege was waived.

Court Disposition

Defendants' amended motion substantially granted, excluding documents numbered 9, 10, 11 and 19.

Orders

  • ['Orders made in the Amended Notice of Motion in respect of the Documents in Exhibit A Confidential excluding documents numbered 9, 10, 11 and 19.' 'The Court will hear the parties on costs if they are unable to agree on a costs order.']