Notices to produce - fishing expedition & privilege

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By Stephen Aroney, Partner

The NSW Supreme Court has recently handed down a decision to set aside a Notice to Produce issued by a Plaintiff seeking to obtain 1. any claim form provided by the First Defendant (a former solicitor) to his professional indemnity Insurer and 2. correspondence between the First Defendant and the Second Defendant (a senior barrister) relating to the matter. The decision confirms the position of the Court to put a Plaintiff to strict proof of establishing a “legitimate forensic purpose” to produce the documents and that it is “on the cards” that the documents sought would materially assist the Plaintiff’s case. The Court will not permit parties (issuing a Notice to Produce or Subpoena) to embark on a “fishing expedition” in the hope of locating a document to assist their case – there must be a basis beyond mere speculation.

Background: The Plaintiff commenced professional negligence proceedings against a former solicitor (D1) and senior counsel (D2) for allegedly encouraging the Plaintiff to sue a previous law firm (for negligent advice to settle a case against a Bank in June 2010). At an advanced stage of the proceedings (after evidence was completed), the Plaintiff filed and served Notices to Produce on D1 and D2 seeking production of the Claims (or circumstances likely to give rise to a claim) made with their respective Insurers along with any correspondence between D1 and D2 in connection with the matter from 2015 to date.

D1 filed a Motion to set aside the Plaintiff’s Notice to Produce on the grounds that it was an abuse of process, a fishing expedition, and was not relevant to any fact or issue in the case (further, that part of the Notice to Produce was nonsensical because of a drafting error which required production of correspondence between D1 and D1). It is worth noting that the Plaintiff had issued an almost identical Notice to Produce on D1 two years earlier, whereby D1 informally produced his notification to his Insurer of the circumstances likely to give rise to the claim, but said there was no written Claim because it was orally made to the Insurer (the Plaintiff did not believe this and wanted it formally dealt with).

D2 produced his notification to his Insurer of the circumstances likely to give rise to the claim, but declined to produce the actual Claim on the grounds that it was privileged being a confidential communication between D2 and his Insurer after the date he was served with the Plaintiff’s originating process. D2’s solicitor drafted and filed an affidavit outlining the claim for privilege under s119 of the Evidence Act 1995 (NSW). However, the Plaintiff disputed D2’s claim for privilege (as well as D2’s redaction of another document that was produced being an email from D2 to D1, which D2’s solicitor’s affidavit detailed a claim for privilege) and insisted on production of all the documents.

On 23 February 2021, D1’s Motion hearing (to set aside the Plaintiff’s Notice to Produce) was heard by her Honour Justice Adamson. At the Plaintiff’s application, her Honour also considered and determined the issue of D2’s claim for privilege.

The Plaintiff was unsuccessful in both matters, with her Honour handing down separate judgments ordering the Plaintiff to pay costs of the respective applications to D1 and to D2.

In relation to D1’s Motion to set aside the Plaintiff’s Notice to Produce, her Honour found:

  1. If there is a defect in a notice to produce, it is not for the Court to redraft it since the appropriate course is to set aside the notice in full.
  2. The test for determining whether a party is required to produce documents pursuant to a subpoena (or notice to produce) must satisfy two limbs. Firstly, the applicant must identify a legitimate forensic purpose and secondly, the applicant must establish it is ‘on the cards’ that the documents will materially assist the applicant’s case (see Attorney-General (NSW) v Chidgey [2008] NSWCCA 65).
  3. There is a requirement under Rules 34.1 and 34.2 of the Uniform Civil Procedure Rules 2005 (NSW) of a “legitimate forensic purpose” which is satisfied if there “is a reasonable basis to infer that the documents sought will materially assist on an identified issue.”
  4. The Plaintiff’s desire to obtain the 2018 Claim and communications between D1 and D2 from 2015 (in the hope of finding admissions made to the Insurer), could amount to a legitimate forensic purpose. Therefore, the Plaintiff satisfied the first limb of the test.
  5. However, the Plaintiff was unsuccessful on the second limb of the test as the Plaintiff failed to establish that it is “on the cards” that the documents sought would materially assist the Plaintiff’s case. Her Honour said, “I regard the possibility that the documents covered by the notice to produce will contain admissions by the first and/or second defendants as to their past negligence as no more than speculative” and that the Notice to Produce amounted to a “fishing expedition in circumstances where the plaintiff has no idea whether there are any fish in the pond.”

In relation to D2’s privilege claim, her Honour found:

  1. It was sufficient for D2’s solicitor to give evidence (via affidavit) on behalf of D2 to prove that the documents attracted privilege and that the principles of case management are “consistent with flexible modes of proof, including by evidence from the solicitor of a party, rather than from the party.”
  2. The email Claim from D2 to the Insurer dated 14 June 2018 was after D2 had been served by the Plaintiff, and only 5 days prior to D2’s solicitors filing an Appearance.
  3. The Court was satisfied on the balance of probabilities that D2 “communicated with his insurer in a confidential communication which was prepared for the dominant purpose of his being provided with professional legal services.” Accordingly, the document was privileged and need not be produced to the Plaintiff.
  4. As for the redactions on the documents that were produced, her Honour noted that the redacted portions were relatively few in number and related to exchanges between D1 and D2 (being a solicitor and barrister) regarding legal advice on an issue. Accordingly, advice given by a barrister to a solicitor (as a client) entitled a claim for privilege and the redaction was appropriate. Her Honour said “My view would be otherwise if the only basis for the redaction was relevance.”

Conclusion

Great care and thought must be given when considering whether to issue a Notice to Produce on a party in proceedings, to not only properly identify the documents being sought but to establish a legitimate forensic purpose and likelihood the documents will materially assist the party’s case. Further, communications regarding claims are privileged given the right circumstances.

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