Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority t/as Seqwater (No 6) [2016] NSWSC 1279

Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority t/as Seqwater (No 6) [2016] NSWSC 1279

Given the size and complexity of the litigation, and that the confidential and commercially valuable intellectual property (DSS-WISE system) is owned by a third party overseas, it is appropriate to condition discovery of the model and data on a written undertaking, but only in terms commensurate with the implied undertaking; the proposed plaintiff's undertaking was too broad and would create impermissible substantive obligations.

Parties
Plaintiff: Rodriguez & Sons Pty Ltd; First Defendant: Queensland Bulk Water Supply Authority (t/as Seqwater); Second Defendant: Sun Water Limited; Third Defendant: State of Queensland
Jurisdiction
Australia
Judgment Date
13 September 2016
Procedural Posture
Procedural and Other Rulings / Interlocutory Application; Discovery/production Order Conditions
Outcome
Application granted in part
Legal Topics
Discovery, Confidentiality Undertakings, Use of Expert Evidence, Intellectual Property in Litigation, Interlocutory Orders
Civil Procedure Discovery Confidentiality Undertakings Use of Expert Evidence Intellectual Property in Litigation Interlocutory Orders

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Parties

Rodriguez & Sons Pty Ltd

Plaintiff

Queensland Bulk Water Supply Authority (t/as Seqwater)

First Defendant

Sun Water Limited

Second Defendant

State of Queensland

Third Defendant

Procedural Posture

Procedural and Other Rulings / Interlocutory Application; Discovery/production Order Conditions

Legal Issues

  1. 1 Whether an order for production of hydraulic model software and data should be subject to a written confidentiality undertaking
  2. 2 Whether the implied undertaking (Harman rule) is sufficient protection for confidential material produced in discovery
  3. 3 Appropriate form/terms of confidentiality undertakings for discovered material owned by third parties

Ratio Decidendi

Given the size and complexity of the litigation, and that the confidential and commercially valuable intellectual property (DSS-WISE system) is owned by a third party overseas, it is appropriate to condition discovery of the model and data on a written undertaking, but only in terms commensurate with the implied undertaking; the proposed plaintiff's undertaking was too broad and would create impermissible substantive obligations.

Court Disposition

Application granted in part

Orders

  • Order 3 of 26 June 2016 set aside.
  • On or before 16 September 2016, the plaintiff to provide to each defendant (that provides the required written undertaking to the Court) (a) a standalone copy of the DSS-WISE software used by Dr Altinakar for the reports, in a form able to be used in Australia, and (b) all necessary input files to reproduce model...