Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2009] FCA 61

Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2009] FCA 61

The Court rejected Optiver's vague general proposed discovery order but accepted that the specific categories in proposed Order 2 should be discovered. The evidence did not show that the source code repository, object code, later iterations or related documents were irrelevant or unnecessary for Optiver to decide whether to sue, and time or version limits proposed by Tibra would be too restrictive. Confidentiality would be adequately protected by undertakings by Optiver's solicitors and expert, subject to Tibra knowing the expert's identity and receiving the expert's report to guard against disclosure of sensitive information; independent third party custody was unnecessary.

Jurisdiction
Australia
Judgment Date
06 February 2009
Procedural Posture
Preliminary Discovery Application / Determination of Form of Preliminary Discovery Orders, Confidentiality Orders and Incidental Costs Orders After Dismissal of Special Leave Application
Outcome
Parties directed to bring in Short Minutes to give effect to the reasons for judgment.
Legal Topics
['preliminary Discovery' 'discovery of Documents and Computer Source Code and Object Code' 'confidentiality Undertakings' 'copyright Infringement' 'breach of Confidence']
['practice and Procedure' 'intellectual Property' 'equity'] ['preliminary Discovery' 'discovery of Documents and Computer Source Code and Object Code' 'confidentiality Undertakings' 'copyright Infringement' 'breach of Confidence']

Case Brief

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Procedural Posture

Preliminary Discovery Application / Determination of Form of Preliminary Discovery Orders, Confidentiality Orders and Incidental Costs Orders After Dismissal of Special Leave Application

Legal Issues

  1. 1 ['Whether preliminary discovery should be ordered in the broad general form sought by Optiver or by specific orders identifying categories of documents and computer code.' 'Whether documents relating to source codes, object codes, source code repositories, revision logs and related communications should be discovered.' 'Whether the proposed discovery was oppressive, excessive or unnecessarily broad because of cost, inconvenience, lack of time limits or duplication.' 'What confidentiality regime should govern inspection of discovered computer code and confidential documents.' "Whether discovered material should be held by an independent third party rather than Optiver's solicitors."]

Ratio Decidendi

The Court rejected Optiver's vague general proposed discovery order but accepted that the specific categories in proposed Order 2 should be discovered. The evidence did not show that the source code repository, object code, later iterations or related documents were irrelevant or unnecessary for Optiver to decide whether to sue, and time or version limits proposed by Tibra would be too restrictive. Confidentiality would be adequately protected by undertakings by Optiver's solicitors and expert, subject to Tibra knowing the expert's identity and receiving the expert's report to guard against disclosure of sensitive information; independent third party custody was unnecessary.

Court Disposition

Parties directed to bring in Short Minutes to give effect to the reasons for judgment.

Orders

  • ['The parties are to bring in Short Minutes to give effect to the reasons for judgement.' 'Specific preliminary discovery orders should be made rather than the general order proposed by Optiver.' 'The documents sought in proposed Order 2 should be discovered.' "Tibra is to be told the name of Optiver's independent...