NAK Australia Pty Ltd v Starkey Consulting Pty Ltd [2008] NSWSC 1136

NAK Australia Pty Ltd v Starkey Consulting Pty Ltd [2008] NSWSC 1136

The defendants were required to give further discovery of existing customer and potential customer lists because a reconstructed list made for discovery did not satisfy the agreed category, but they could mask names not appearing on the plaintiff's CUST2 list. Confidentiality did not itself defeat discovery, but the Court permitted masking or restricted access where relevance to liability was insufficient or confidentiality risks justified protection. Prices on invoices for products not marketed by the plaintiff could remain masked, subject to an undertaking to unmask if the plaintiff showed it marketed the same product. Privilege claims over specified third party communications were...

Jurisdiction
Australia
Judgment Date
11 August 2008
Procedural Posture
Procedural and Other Rulings; Discovery Application in Proceedings Alleging Breach of Contractual Restraints and Equitable Obligations of Confidentiality / Notice of Motion Filed 5 August 2008 Concerning Discovery, Privilege, Confidentiality and Subpoena Access
Outcome
Defendants ordered to provide further and better discovery for customer and potential customer lists; leave granted to mask certain prices; defendants excused from producing certain confidential documents; access to Telstra pre-2008 documents granted with restrictions; no order as to costs.
Legal Topics
['further and Better Discovery' 'masking Discovered Documents' 'commercial Confidentiality in Discovery' 'legal Professional Privilege Over Third Party Communications' 'access to Subpoenaed Telephone Records' 'discovery Relevant Only to Quantum Deferred Pending Liability' 'customer Lists and Potential Customer Lists']
['civil Procedure' 'discovery' 'confidential Commercial Information' 'privilege' 'subpoenas' 'equity'] ['further and Better Discovery' 'masking Discovered Documents' 'commercial Confidentiality in Discovery' 'legal Professional Privilege Over Third Party Communications' 'access to Subpoenaed Telephone Records' 'discovery Relevant Only to Quantum Deferred Pending Liability' 'customer Lists and Potential Customer Lists']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Procedural and Other Rulings; Discovery Application in Proceedings Alleging Breach of Contractual Restraints and Equitable Obligations of Confidentiality / Notice of Motion Filed 5 August 2008 Concerning Discovery, Privilege, Confidentiality and Subpoena Access

Legal Issues

  1. 1 ['Whether commercial confidentiality alone justified withholding or masking documents otherwise discoverable.' "Whether a reconstructed list of OSS customers complied with the defendants' agreed discovery obligation for customer and potential customer lists." 'Whether defendants could mask prices on invoices for products not marketed by the plaintiff.' 'Whether claims of privilege over emails and diary entries concerning third party communications were made out.' "Whether defendants should be excused from producing confidential documents referred to in Mr Starkey's affidavit." 'Whether discovery should be expanded to include profit and loss statements and total sales figures by customer before liability was determined.' "Whether plaintiff's lawyers should have access to Telstra telephone records produced on subpoena and on what restrictions."]

Ratio Decidendi

The defendants were required to give further discovery of existing customer and potential customer lists because a reconstructed list made for discovery did not satisfy the agreed category, but they could mask names not appearing on the plaintiff's CUST2 list. Confidentiality did not itself defeat discovery, but the Court permitted masking or restricted access where relevance to liability was insufficient or confidentiality risks justified protection. Prices on invoices for products not marketed by the plaintiff could remain masked, subject to an undertaking to unmask if the plaintiff showed it marketed the same product. Privilege claims over specified third party communications were...

Court Disposition

Defendants ordered to provide further and better discovery for customer and potential customer lists; leave granted to mask certain prices; defendants excused from producing certain confidential documents; access to Telstra pre-2008 documents granted with restrictions; no order as to costs.

Orders

  • ['Order that by way of further and better discovery the defendants make and serve a further list of documents in compliance with Uniform Civil Procedure Rules, rr 21.3 and 21.4, of any list of customers of the third defendant and any list of potential customers of the third defendant compiled by any of the...