FEDERAL COURT OF AUSTRALIA
Career Step, LLC v TalentMed Pty Ltd [2017] FCA 492
File number: NSD 562 of 2017 Judge: ROBERTSON J Date of judgment: 23 May 2017 Catchwords: PRACTICE AND PROCEDURE – application for discovery before filing of defence – application for an order for inspection of property, specifically access to the respondents’ computers, under r 14.01 of the Federal Court Rules 2011 (Cth) Legislation: Federal Court of Australia Act 1976 (Cth) s 37M
Federal Court Rules 2011 (Cth) rr 14.01, 20.13
Cases cited: Cadence Australia Pty Ltd v Chew [2008] NSWSC 1074
Norm Engineering Pty Ltd v Digga Australia Pty Ltd [2005] FCA 1378
Date of hearing: 23 May 2017 Registry: New South Wales Division: General Division National Practice Area: Intellectual Property Sub-area: Copyright and Industrial Designs Category: Catchwords Number of paragraphs: 17 Counsel for the Applicant: Mr S Balafoutis Solicitor for the Applicant: Hogan Lovells Counsel for the Respondents: Mr A Fox Solicitor for the Respondents: Arnold Bloch Leibler ORDERS
NSD 562 of 2017 BETWEEN: CAREER STEP, LLC
Applicant
AND: TALENTMED PTY LTD ACN 125 458 808
First Respondent
LYNDIE ELLEN ARKELL
Second Respondent
TIMOTHY ARKELL
Third Respondent
JUDGE:
ROBERTSON J
DATE OF ORDER:
23 MAY 2017
THE COURT ORDERS THAT:
1.The respondents provide a computer expert nominated by the applicant, that expert being Mr Nigel Carson, with access to the respondents’ computers (including, as may be required, providing or inputting passwords) that store the content of the TalentMed Course (including every version of the TalentMed Course, and drafts of the TalentMed Course (TalentMed Course Materials)), by 26 May 2017.
2.The respondents direct Mr Carson to the appropriate places where the TalentMed Course Materials are stored.
3.The respondents permit Mr Carson to take copies of any material, data or information stored on the respondents’ computers recording the TalentMed Course Materials, on condition that:
(i)Mr Carson provide the respondents with the copies taken of the TalentMed Course Materials for the purpose of any claim by the respondents that the documents are subject to legal professional privilege or contain confidential information of the respondents or do not constitute TalentMed Course Materials;
(ii)the respondents complete their review within four business days of being provided with a copy of the TalentMed Course Materials;
(iii)upon completion of their review, the respondents identify any items subject to a claim made by the respondents under (i) above;
(iv)save for any document subject to a claim as referred to in (iii), Mr Carson may deliver to the applicant a copy of the TalentMed Course Materials, access to those materials being limited to:
(a)the applicant’s legal representatives in these proceedings; and
(b)the eight representatives of the applicant listed in attachment A of annexure A to the orders made on 15 May 2017 who have undertaken to keep the course materials confidential on the terms of the undertaking at annexure A to those orders,
which copy the applicant may use only for the purpose of these proceedings.
REASONS FOR JUDGMENT
ROBERTSON J:
These proceedings…
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- Case
- [2017] FCA 492
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the applicant was entitled to inspect the respondents’ computers and to obtain copies of the TalentMed Course Materials for the purpose of the proceedings. The court had to consider the balance of convenience, the necessity and proportionality of the inspection, and the rights of the respondents to protect their confidential information. Additionally, the court had to determine the appropriate conditions under which the inspection could take place to protect the respondents’ interests.
The court found in favour of the applicant, holding that the inspection was necessary and proportionate to the needs of the case. The court emphasised the importance of maintaining the balance of rights between the parties and ensuring that the inspection was conducted in a manner that protected the respondents’ confidential information. The court ordered the respondents to provide the applicant’s nominated expert, Mr Nigel Carson, with access to their computers and to direct him to the appropriate locations where the TalentMed Course Materials were stored. The court also imposed conditions on the inspection to ensure that the respondents’ rights were protected, including allowing the respondents to review the materials for legal professional privilege or confidentiality claims and limiting the use of the materials to specific parties.
The final orders required the respondents to provide access to their computers by a specified date and to direct the applicant’s expert to the relevant materials. The court also set out detailed conditions for the inspection, including the requirement for the respondents to review the materials for claims of privilege or confidentiality and the limited use of the materials by the applicant and its representatives.
Orders
Orders of the court
1. The respondents provide a computer expert nominated by the applicant, that expert being Mr Nigel Carson, with access to the respondents’ computers (including, as may be required, providing or inputting passwords) that store the content of the TalentMed Course (including every version of the TalentMed Course, and drafts of the TalentMed Course (TalentMed Course Materials)), by 26 May 2017.
2. The respondents direct Mr Carson to the appropriate places where the TalentMed Course Materials are stored.
3. The respondents permit Mr Carson to take copies of any material, data or information stored on the respondents’ computers recording the TalentMed Course Materials, on condition that:
(i) Mr Carson provide the respondents with the copies taken of the TalentMed Course Materials for the purpose of any claim by the respondents that the documents are subject to legal professional privilege or contain confidential information of the respondents or do not constitute TalentMed Course Materials;
(ii) the respondents complete their review within four business days of being provided with a copy of the TalentMed Course Materials;
(iii) upon completion of their review, the respondents identify any items subject to a claim made by the respondents under (i) above;
(iv) save for any document subject to a claim as referred to in (iii), Mr Carson may deliver to the applicant a copy of the TalentMed Course Materials, access to those materials being limited to:
(a) the applicant’s legal representatives in these proceedings; and
(b) the eight representatives of the applicant listed in attachment A of annexure A to the orders made on 15 May 2017 who have undertaken to keep the course materials confidential on the terms of the undertaking at annexure A to those orders,
which copy the applicant may use only for the purpose of these proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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