Adelaide Brighton Cement Limited v Hallett Concrete Pty Ltd

[2022] SASC 138

Supreme Court of South Australia

(Civil)

ADELAIDE BRIGHTON CEMENT LIMITED v HALLETT CONCRETE PTY LTD & ORS

[2022] SASC 138

Ruling of the Honourable Chief Justice Kourakis  (ex tempore)

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - DISCOVERY OF DOCUMENTS - DISCRETION OF COURT AND POWER TO ORDER

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION OF DOCUMENTS - GROUNDS FOR RESISTING PRODUCTION - PRIVILEGE - CLIENT LEGAL PRIVILEGE - WAIVER OF PRIVILEGE

The applicant and first respondent were parties to a cement supply agreement pursuant to which, on the applicant’s case, the applicant agreed to supply cementitious products to the first respondent on favourable terms and the first respondent agreed to purchase certain cementitious products exclusively from the applicant.

The respondents brought an interlocutory application seeking, inter alia, orders that the applicant provide to the respondents a list of the search terms utilised or applied by the applicant and/or its legal representatives in undertaking searches of the electronic data sources containing potentially relevant and discoverable documents, including in respect of email accounts.

The applicant opposed the application on the basis that the Uniform Civil Rules 2020 (SA) preclude the making of such orders unless there is reason to doubt the discovery which has been made. The applicant further contends that the search terms used for the purposes of discovery are protected from disclosure by legal professional privilege.

Held per Kourakis CJ:

1.      The applicant is to disclose the search terms that it has used to produce every tranche of discovery which it has made with respect to emails.

2.      Unless the search terms used by a party for the purposes of making discovery are known, there can be no reasonable level of assurance that the documents discovered have met the obligations of that party.

3.      Insofar as any privilege attached to the search terms used by the applicant to make discovery, privilege has been impliedly waived by the process of discovery and by assertions made by the applicant’s solicitor in his affidavit.

Uniform Civil Rules 2020 (SA) r 73.14; r 73.15, referred to.

ADELAIDE BRIGHTON CEMENT LIMITED v HALLETT CONCRETE PTY LTD & ORS
[2022] SASC 138

Civil

1. KOURAKIS CJ:   On the respondent’s application, FDN 290, amongst the orders they seek are orders disclosing the search terms applied by Adelaide Brighton Cement Limited (‘Adelaide Brighton Cement’) to all emails received by and sent by Adelaide Brighton Cement within relevant periods of time.  That application is opposed by Adelaide Brighton Cement.  The first submission made by Adelaide Brighton Cement is that no order of this nature should be made because the Uniform Civil Rules 2020 (SA) preclude the making of orders of this kind unless there is reason to doubt the discovery which has been made.

2. In the case of electronic searches, the degree to which they will result in discovery which meets the obligation of the parties is critically dependent on the search terms which are used.  In this respect electronic discovery differs markedly from hard copy discovery where the places in which hard copies are filed and kept is generally understood and there is unlikely to be any deficiency in the discovery if the solicitors and the parties diligently attend to their obligations.  However, to search electronic databases, as I said earlier, the search terms are critical.

3. The terms selected by the parties for the purposes of discovery will, to a large extent, be formulated on the basis of their understanding of their respective cases and the words which are likely to appear in those electronic documents which contain discoverable information.  Parties may have different conceptions of the case and the issues which will arise in it.

4. It follows that, unless the terms are known, there can be no reasonable level of assurance that the documents discovered have met the obligations of the party.  In that sense there is reason to doubt that proper discovery has been made unless the search terms are disclosed.

5. Adelaide Brighton Cement contends that the search terms used for the purposes of discovery are protected from disclosure by legal professional privilege.  Adelaide Brighton Cement’s solicitor, Mr Walsh, filed an affidavit explaining the process by which documents, including emails, were collated into a central electronic database for the purposes of advising Adelaide Brighton Cement.  The affidavit also discloses that search terms were devised for the purposes of extracting information to advise Adelaide Brighton Cement on whether to issue proceedings against the respondents and for the purposes of formulating the statement of claim.  The affidavit of Mr Walsh also discloses that those terms were expanded from time to time after proceedings were instituted for the purposes of making discovery.

6. It is not obvious to me why Adelaide Brighton Cement chose to disclose that the search terms ultimately used to make discovery were, at least in part, the same search terms used to identify documents on which its legal advice was based.  However, that is a matter for Adelaide Brighton Cement and its solicitors.  The circumstance that they have chosen to disclose that history cannot affect the question of whether an order should be made that they disclose the search terms used for the purposes of discovery.  In making discovery there is an implied representation that searches proportionate to meeting the parties’ obligations have been made.  In the case of hard copy disclosure, that is unlikely ever to implicate a question of legal professional privilege.

7. As I observed, it is now known that Adelaide Brighton Cement’s solicitors worked on and gave advice about search terms initially for the purpose of giving advice.  It claims that because its solicitors initially formulated the search terms for the purpose of giving advice the search terms are privileged despite their later use for the purpose of discovery.  Insofar as the terms were ever privileged, I would hold that the very nature of the obligation of discovery impliedly waives privilege over the search terms used to identify relevant electronic documents.

8. By paragraph 7 of Mr Walsh’s affidavit of 20 July 2020, he deposes that he is satisfied that the search terms which were applied were appropriate having regard to the pleadings filed in respect of the claim.  He also deposes that he is satisfied that the process generally was appropriate, and was undertaken carefully and thoroughly.  By so deposing Mr Walsh has impliedly waived any privilege in the search terms. 

9. I therefore find that insofar as any privilege attached to the search terms it has been impliedly waived by the very process of discovery and by the assertion made in paragraph [7] of Mr Walsh’s affidavit. 

10. On the authorities that have been cited to me by Mr Roberts for the respondents, in his submissions, and on the practises in other jurisdictions which he described, it appears that a privilege has never been claimed over search terms.  Those authorities and practises proceed on the premise that there is no privilege in search terms. 

11. I order that Adelaide Brighton Cement disclose the search terms it has used to produce every tranche of discovery which it has made with respect to those emails.