Vikram Misra
, Barrister at Clarence Chambers, discusses subpoena’s, redaction of documents, privilege, confidentiality and more in this exclusive piece with Legalwise Insights.
In The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd (No 8) [2021] NSWSC 703, Stevenson J presided over an application for a declaration that the producing party was in contempt of court by producing documents in a redacted form on the basis of confidentiality and relevance.
His Honour conveniently summarised the legal principles that applied at [21] to [26]:
[21] A subpoena is a command from the court. A failure to comply with a subpoena is a contempt.
[22] Where, as here, there is no objection to the subpoena on the ground of oppression or that it is an abuse of process, the documents called by a subpoena must generally be produced by the subpoenaed party, without redaction.
[23] If there is a legally recognised claim to withhold documents, for example, privilege, the allegedly privileged parts may be “withheld” by redaction until that claim is tested.
[24] But where the claim is not that the documents are privileged but the documents are confidential, or not relevant, there is no such right. In those circumstances, the documents should be produced to the court by the subpoenaed party and leave then sought to redact the documents prior to their disclosure to the parties.
[25] In the case of the discovery of documents, it has been held that “[t]here is an established practice whereby inspection is provided of discovered documents with parts of the documents masked”, with the merits of the document masking being later debated before the court.
[26] But where, as here, the question of relevance is at play:
“…the court should not countenance a practice of redaction of documents, produced pursuant to its purposes, simply on the basis that some of the material within the document is said to be irrelevant.
Once it can be said that a document answers the court’s requirement for production (and I say again that it matter not for present purposes whether the requirement is one arising on discovery, or pursuant to a subpoena or notice to produce), and putting aside questions of privilege and confidentiality, the very fact that the document answers the command is what requires it to be produced. The fact that it may go beyond the command, in the sense that it may contain material extraneous to the purpose that makes production mandatory, does not justify redaction”.
(Citations omitted)
Although it was held that the course that the producing party followed was ill advised and not appropriate, his Honour did not consider the conduct as being contumelious to the Court’s process or to otherwise be in contempt of those processes. This was due to the fact that the producing party sought to broker a consensual solution between the parties to resolve the issues of confidentiality and relevance as regards the produced documents.
Key takeaways:
– Where a there is a claim of privilege, the allegedly privileged parts may be “withheld” by redaction until that claim is tested.
– Where there is a claim that the documents are confidential or not relevant, the documents should be produced to the court by the subpoenaed party and leave then sought to redact the documents prior to their disclosure to the parties.
Vikram Misra was admitted as a solicitor in 2012 and called to the NSW Bar in 2015. He maintains a broad commercial practice and is regularly briefed in matters relating to taxation law, property law, construction law and equity. Vikram has completed a Graduate Diploma in Taxation Law at the University of Sydney in 2015 and a Master of Laws majoring in construction law and contract law at the University of Melbourne in 2016. Vikram is also a contributing author to the Security of Payment (NSW) section of the looseleaf Commercial Arbitration Law & Practice Service for Thomson Reuters. You may connect with Vikram via email counsel@vikrammisra.com or LinkedIn
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