KC v Shiley Inc
[1997] FCA 650
•17 July 1997
FEDERAL COURT OF AUSTRALIA
PRACTICE AND PROCEDURE - application for further and better particulars - where allegations of fraud, deceit and deliberate misconduct - where application made at a very late stage of the interlocutory proceedings - whether particulars are adequate - whether respondents must be taken to be aware of the nature of the case being made - whether dates for filing witness statements should be extended
PRACTICE AND PROCEDURE - anti-suit injunction - application for restraining order to prevent applicants seeking orders of United States District Court in relation to discovery of documents and deposition of witnesses - where United States District Court had previously granted a conditional stay of proceedings and retained jurisdiction in relation to those conditions - whether application would interfere with the proper exercise of jurisdiction of Federal Court - whether taking of depositions might unreasonably annoy, embarrass or oppress any deponent or party
PRACTICE AND PROCEDURE - application to have overseas witnesses available to give evidence at the trial - where no specific application - application for a list of witnesses whom respondents intend to call - whether request reasonable - application for order restraining destruction of documents - responsibility of legal advisers to preserve documents which may have to be disclosed for legal proceedings
PRIVATE INTERNATIONAL LAW - choice of law - application to have choice of law determined as a preliminary issue - whether determination of choice of law will narrow the ambit and duration of the hearing
Federal Court Rules, O 12, rr 3, 5
Banque Commerciale SA (en liquidation) v Akhil Holdings Ltd (1990) 169 CLR 279, cited
Astrovlanis Compania Naviera SA v Linard [1972] 2 QB 611, cited
Rocklea Spinning Mills Pty Ltd v Anti-Dumping Authority (1995) 56 FCR 406, distinguished
Tilling v Whiteman [1980] AC 1, distinguished
Stangvik v Shiley Inc (1991) 54 Cal 3d 744, cited
Stangvik v Shiley Inc (1990) 273 Cal Rptr 179, cited
National Mutual Holdings Pty Ltd v Sentry Corporation (1989) 22 FCR 209, distinguished
Allstate Life Insurance Co v Australian and New Zealand Banking Group Ltd (No 4) (1996) 64 FCR 61, distinguished
South Carolina Insurance Co v Assurantie Maatschappij “De Zevern Provincien” NV [1987] AC 24, cited
KC, KS, KF, and KL v
SHILEY INCORPORATED & PFIZER INCORPORATED
No NG 633 of 1993
TAMBERLIN J
SYDNEY
17 JULY 1997
IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 633 of 1993 ) GENERAL DIVISION )
BETWEEN: KC
First ApplicantKS by her next friend KC
Second ApplicantKF by her next friend KC
Third ApplicantKL by her next friend KC
Fourth ApplicantAND: SHILEY INCORPORATED
First RespondentPFIZER INCORPORATED
Second Respondent
JUDGE: TAMBERLIN J PLACE: SYDNEY DATED: 17 JULY 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
Applicants Notice of Motion of 10 July 1997
The respondents provide to the applicants on or before 5.00 pm 28 July 1997 a list of witnesses upon whose statements they presently intend to rely on the hearing.
The costs of this motion be costs in the application.
Applicants Notice of Motion of 15 July 1997
The applicants legal representatives be granted the right forthwith to inspect all deposition material produced as a result of related litigation and all other material produced as a result of such litigation
Costs of this application be costs in the application.
Applicants Notice of Motion of 15 July 1997 (Discovery)
The matter to be stood over to 2.15 pm on 18 July 1997.
Respondents Notice of Motion of 10 July 1997
That the applicants provide the best particulars they can to the respondents on or before 24 July 1997 having regard to the reasons for decision on this motion and the matters raised in the course of the hearing by the respondents.
Costs of this motion be costs in the application.
I dismiss the application insofar as it seeks a preliminary determination as to choice of law.
Respondents Notice of Motion of 4 July 1997
This is superseded by the respondents Notice of Motion of 15 July 1997.
This Notice of Motion be dismissed with no order as to costs.
Respondents Notice of Motion of 15 July 1997
The Notice of Motion be dismissed.
Costs to be costs in the application.
The Court further directs that:
The respondents file and serve any further or supplementary affidavits to deal with any matter raised as a result of the further particulars by 7 August 1997.
The applicants file and serve any affidavits in reply by 21 August 1997.
The respondents furnish to the applicants a list of objections to witness statements by 31 July 1997.
The applicants furnish to the respondents a list of objections to witness statements within 14 days of the receipt of those statements.
The respondents furnish to the applicants a list of objections to witness statements in reply prior to 22 August 1997.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 633 of 1993 ) GENERAL DIVISION )
BETWEEN: KC
First ApplicantKS by her next friend KC
Second ApplicantKF by her next friend KC
Third ApplicantKL by her next friend KC
Fourth ApplicantAND: SHILEY INCORPORATED
First RespondentPFIZER INCORPORATED
Second Respondent
JUDGE: TAMBERLIN J PLACE: SYDNEY DATED: 17 JULY 1997
REASONS FOR JUDGMENT
The substantive application in this matter was filed in this Court on 18 August 1993. Proceedings had been previously filed in the United States District Court against Pfizer on 16 August 1993. The Australian proceedings were not actively pursued until about February 1995. In the intervening period an application had been made in the United States by Pfizer to stay the United States proceedings in order to provide for the hearing of the Australian proceedings on the ground that the American court was a forum non conveniens. The application by the respondents for a stay was successful and a conditional stay was granted by Judge Taylor of the United States District Court for the Central District of California.
There are presently a number of interlocutory motions before me. They are brought by parties on both sides of the record. The motions raise questions which concern a number of matters including questions going to particulars; the determination of a preliminary question as to choice of law; and the inspection and taking of depositions in the United States.
Particulars
In very brief outline, the circumstances are that on 5 June 1997 directions were given by Lockhart J fixing a trial date of 25 August 1997. His Honour had earlier, on 13 December 1996, directed a tentative timetable based on a hearing date of 28 July 1997. The August date was fixed after hearing statements by the respondents that the date in July was premature. His Honour made directions on 5 June 1997 that the respondents should file and serve statements of evidence and a list of documents proposed to be tendered by 21 July 1997. The applicants were directed to file and serve statements in reply and a list of further documents on which they sought to rely by 11 August 1997.
At the interlocutory hearing before Lockhart J in June 1997 the respondents indicated that particulars going to aggravated, exemplary and punitive damages, furnished on 3 June 1997, were totally inadequate in a case where allegations of malice and conscious wrongdoing were alleged as a basis for claiming punitive damages.
On 12 June 1997 the respondents sought further detailed particulars in relation to over 220 matters.
On 2 July 1997 the applicants furnished “the best particulars available at this time”. These questions and answers are set out in a document entitled “Consolidated Response”.
The respondents say that the further particulars are also inadequate and seek an order that proper particulars be furnished and a direction that time should not run in relation to the filing of the respondents’ affidavits, in relation to exemplary and punitive damages, until proper particulars have been furnished by the applicants. It follows that if such an order were made the applicants would require further time to file material in reply.
Basically, the respondents say that because grave allegations of fraud, deceit and deliberate misconduct are levelled against them they are entitled to know with particularity and precision the material facts with which they are charged. The law is well settled that allegations of this type must be so formulated. The Federal Court Rules O12, r 3 and r 5 so provide. See also Banque Commerciale SA (en liquidation) v AkhilHoldings Ltd (1990) 169 CLR 279 at 285-7, 294-296. The broad principles are well settled. The difficulty lies in determining what particulars are necessary in the circumstances of the case.
The applicants submit that they have given the best particulars they can at this stage and that the particulars supplied are reasonable and adequate. Many of the answers to the request, it is said, are peculiarly within the knowledge of the respondents. In considering a request for further particulars concerning allegations against a large organisation involving conduct over many years it will frequently be the case that an applicant cannot always be taken to know the details of what happened within the organisation even with the benefit of discovery. The applicants also refer to a number of lengthy affidavits filed by them which refer to the existence of other related proceedings in the United States; to media information; to Congressional Investigations and Reports; and to depositions taken in the United States in other proceedings. It is said that this material indicates that the respondents must be taken to be well aware of the nature of the case made against them in relation to punitive damages. It is submitted that the details given are adequate particularly when considered in the light of the overall context of similar litigation in which the respondents have been enmeshed over a number of years in different areas of the United States. This United States litigation also involved proceedings in relation to heart valves.
While an application to the Court for particulars may be made at any time under the Federal Court Rules the present application to the Court for further particulars is made at a very late stage of the interlocutory process. The history of this matter indicates that prior to April 1997, when there was a change in legal representatives, the question of particulars which had previously been requested was not pressed before the Court with any vigour.
In the meantime, discovery has proceeded and is still proceeding. There are pending arguments as to whether there should be further discovery in certain respects. Pleadings have been closed. The applicants have filed their statements of evidence as to liability and damages pursuant to the orders of Lockhart J, more than two months ago, and have obtained a hearing date of 25 August 1997. The proceedings have reached the stage where the respondents’ affidavits are due to be filed within two working days from today.
The lateness of an application for further and better particulars was considered in Astrovlanis Compania Naviera SA v Linard [1972] 2 QB 611. That case involved serious allegations of criminal misconduct. The three members of the Court of Appeal considered that the application to the Court for further and better particulars came far too late and the application was refused: at 615, 618, 622-623 and 624. The allegations in respect of which particulars were sought in that case involved grave criminal misconduct concerning the alleged scuttling of the ship known as the “Gold Sky”.
There is no substance, in my view, in the suggestion that the respondents must be taken to know, having regard to the history of claims generally by other parties and consequent publicity and other material, the nature and details of the allegations of the claims now made against them in this proceeding. The other litigation is not irrelevant to a consideration of the need for particulars but these matters, of themselves, cannot excuse the applicants from providing proper particulars.
In many instances it appears that the applicants are simply unable to answer the request.
A further argument, raised by the applicants, is that particulars have not been sought by the respondents in respect of a substantial number of other broad allegations given by way of particulars on 2 and 3 June 1997. The suggestion is that this indicates that the detailed request for particulars of 12 June 1997 was neither serious, bona fide, nor necessary and that this should be weighed in the balance. I cannot accept this submission. I fail to see how any omission to request details of some allegations can support the view that adequate particulars should be taken to have been provided in respect of other matters or that such particulars in fact sought were not really considered necessary.
In many respects, as pointed out by Counsel for the respondents in some detail, the particulars are unsatisfactory. To some extent this is because the applicants have simply referred to statements of evidence, either generally or to specific paragraphs in these statements without specifying the nature of the allegations or the material facts or allegations to which they are directed. This approach blurs the distinction between material facts and evidence.
For instance, in the Consolidated Response document, which incorporates the request for particulars and the answers, a number of responses simply refer to Statements of Evidence or groups of documents at large without formulating any specific material facts. For example, in paragraph 11 of the Consolidated Response document, the respondent has sought details of facts and matters relied on to show knowledge of an inability to obtain approval to sell 70° heart valves in the United States. By way of response there is a reference to two bundles of documents, a Task Force Report, and a United States Congressional Report of February 1990.
On a careful examination, a number of responses are unsatisfactory because they are non specific or non responsive. These include, for example, pars 7, 12, 14, 16, 22, 24, 28, 39, 40, 42, 58, 61 and 134. This list is indicative only and is not intended to be in any way exhaustive.
However, notwithstanding the inadequacies in the particulars, I do not consider it necessary or appropriate in the circumstances to extend the time for the respondents to file their Statements of Evidence beyond the date determined by Lockhart J, in relation to matters raised in the evidence filed by the applicants. The applicants’ evidence has been available for some months to the respondents and they are aware of the evidence relied on by the applicants to make our their case as to both compensatory and exemplary damages.
In my view, the appropriate course is to require the applicant to give the best further and better particulars it can, having regard to the matters raised by the respondents in argument in the course of the last few days. Any further particulars should specify material facts as opposed to simply referring to large slabs of statements, bundles of documents or reports at large. These particulars should be furnished within a relatively short time, say within one week, that is by 24 July 1997. The respondents should then have a further two weeks within which to file and serve any further or supplementary affidavits to deal with any matter raised as a result of the further particulars, that is by 7 August 1997. The applicants’ material in reply should be filed and served by 21 August 1997. The trial should commence on 25 August 1997.
The matters I take into account in reaching the above view are these:
the inevitable distress and anxiety to the first applicant resulting from any further delay in the hearing of this matter;
the problems faced by the respondents in meeting the charges levelled against them;
the late stage at which such a detailed specific application for further particulars is made;
the lack of satisfactory explanation as to why such an application was not made at or shortly after the Defence was filed on 14 March 1995;.
the fact that the pleadings are closed, although this does not waive a claim for further particulars;
the fact that the applicants have filed all the witnesses statements on which they propose to rely pursuant to the directions of Lockhart J;
the failure of the respondents, up to April 1997, to actively pursue particulars by seeking further Court orders for detailed particulars. There was no suggestion before Lockhart J on 13 December 1996 that there was any pressing problem with particulars;
the fact that proceedings were first instituted in this Court approximately four years ago;
the desirability in the interests of effective case management in having this matter proceed to an hearing consistently with the interests of procedural fairness and justice;
the fact that the hearing is inevitability going to take at least two to three months on current estimates, if it is fought on all issues. This permits substantial procedural flexibility. If unfairness should arise during the course of the hearing appropriate steps can be taken with a view to avoiding such a result;
the fact that any further delay will inevitably be substantial having regard to the Court’s commitments.
In these circumstances, I do not consider that it would be procedurally unfair or confer any advantage on the applicants if the Court requires the respondents to substantially adhere to the dates for filing of statements as fixed by Lockhart J on 5 June 1997 in order to meet the hearing date of 25 August 1997.
Preliminary Question - Choice of Law
The respondents seek an order that the choice of law question be determined as a preliminary issue.
Whilst there is some force in the submissions advanced by Counsel for the respondents, it is clear that the determination of this question will not finally resolve the proceeding. The advantage is that the determination of law may possibly narrow the ambit and duration of the hearing by limiting the case to a framework of a single legal regime. However, any such determination, at this stage, must turn on the pleadings and untested evidence without having any specific factual findings. It may well be that the factual findings made at the conclusion of the hearing will differ considerably from the matters presently alleged. The weighing of these considerations, in my view, leads to the conclusion that the choice of law question should be resolved when the hearing is completed and submissions have been made so that the question can be considered with the benefit of specific final and binding determinations of fact: cf Rocklea Spinning Mills Pty Ltd v Anti-Dumping Authority (1995) 56 FCR 406 at 423; Tilling v Whiteman [1980] AC 1 at 17-18 per Lord Wilberforce.
Depositions and Overseas Witnesses
On 26 June 1997 the solicitors for the applicants wrote seeking from solicitors for the respondent a list of witnesses to be called by the respondents. The letter stated, for the first time, that the applicants proposed to depose certain ex-employees of the respondents in the United States over the next few weeks.
This information raised a number of concerns on the part of the respondents. One of these was that the time for witness statements fixed by Lockhart J on 5 June 1997 had passed. A second concern was that there had been no suggestion to his Honour when fixing a hearing date that such a procedure would be pursued. The respondents are concerned that they are not yet fully aware of the material to be used against them.
When Judge Taylor of the United States District Court in California in 1994 made an order staying the US proceedings, seven conditions were imposed on the second respondent, Pfizer, which was the applicant before that Californian Court seeking the stay.
In his judgment Judge Taylor noted that the stay was “conditioned on the Defendant’s unqualified agreement to adhere to the seven Stangvik requirements”. He referred to a decision in the case of Stangvik v Shiley Inc (1991) 54 Cal 3d 744, 819 P.2d 14. The order granted Pfizer’s forum non conveniens motion and stayed the action subject to the Stangvik conditions to permit trial in Australia. His Honour stated that the United States Court retained jurisdiction to make such further orders as might be appropriate.
The Stangvik conditions imposed on Pfizer are:
1.Submission to jurisdiction in Australia;
2.Compliance with discovery orders of the Australian courts;
3.Agreement to make past and present employees reasonably available to testify in Australia at defendants’ costs if so ordered within the discretion of the Australian courts;
4.Tolling of the statute of limitations during the pendency of the actions in California;
5.Agreement to make documents in their possession in the United States available for inspection in Australia, as required by Australian law, at defendants’ expense;
6.Agreement that depositions in the United States might proceed under section 2029; and
7.Agreement to pay any final judgments rendered in the Australian actions.
The Stangvik decision referred to was taken on appeal: see Stangvik v Shiley Inc (1990) 273 Cal Rptr 179 at 196 where the Appeal Court characterised the Stangvik conditions as follows:
“The trial court conditioned its granting of the motions upon a thorough and comprehensive stipulation by Shiley and Pfizer designed to protect appellants’ interests. In imposing rigid conditions upon Shiley and Pfizer, and of obtaining their unconditional acceptance of those conditions, the court has done all that is legally required to ensure a fair forum. The purpose of the imposition of conditions is to ensure reasonable access to evidence, not to impose American or California procedural requirements on foreign courts.” (Emphasis added)
That case concerned residents of Sweden and Norway filing product liability actions arising from deaths as a result of the failure of artificial heart valves manufactured by the respondents in California.
The conditions must therefore be approached on the basis that they are rigid conditions designed to protect the applicants and to achieve a fair trial by ensuring reasonable access to evidence without restricting the discretion of a foreign court.
After being notified of the proposal to depose witnesses in the United States, the respondents filed a Notice of Motion of 3 July 1997 seeking an order that the applicants be restrained from deposing witnesses for the purposes of the present case, except subject to the direction of this Court. This application was superseded by the respondents’ Notice of Motion of 15 July 1997, seeking orders that:
“2.That the Applicants be restrained from seeking from the United States District Court any order or direction concerning:
(a) discovery of documents;
(b) production of documents;
(c) taking of depositions;
(d) attendance of witnesses; or
(e) any other aspect of pre-trial procedure,
in or in connection with these proceedings.
3.Alternatively, that the Applicants be restrained from seeking from the United States District Court, without first obtaining the leave of this Court to do so, any order or direction concerning:
(a) discovery of documents;
(b) production of documents;
(c) taking of depositions;
(d) attendance of witnesses; or
(e) any other aspect of pre-trial procedure,
in or in connection with these proceedings.”
By letter dated 11 July 1997, the Los Angeles attorneys for the applicant foreshadowed that an application would be made to the United States District Court for the Central District of California, to seek orders from Judge Taylor, who was the judge making the stay order in 1994. The orders sought were these:
“1.Defendant shall not destroy any documents which are the subject of the protective order issued by the Superior Court of the State of California, County of Orange, on October 29, 1993;
2.Subject to plaintiff entering into an appropriate protective order to be filed with this Court and or the Australian court, defendant shall produce for immediate inspection, at a location selected by plaintiff, either in Australia or in the United States, all depositions and other documents produced in discovery in Dairyland Insurance Company v. Pfizer and Shiley Inc. and Seamen, et al. v. Pratt and Pfizer Inc., et al, (excluding documents exclusively relating to the insurance arrangements involved in Dairyland Insurance Company v. Pfizer and Shiley Inc.).
3.Defendants shall unconditionally comply with Stangvik condition 6 relating to depositions, unless defendants agree to make certain former or current employees identified by counsel for plaintiff available at the forthcoming trial in Australia.
4.Defendant shall produce for immediate inspection, at a location selected by counsel for Plaintiff, either in Australia or in the United States, (a) all depositions and trial transcripts in other products liability litigation arising out of the Bjork-Shiley C/C artificial heart valve, including the documents referred to in Part 1, section B, paragraph 2 of the Notice of Hearing On Proposed Settlement of Action, issued by the Superior Court of the State of California, County of Orange on January 29, 1997, being documents produced by the defendants in discovery in Seamen, et al. v. Pratt and Pfizer Inc., et al; (b) all employment history records of persons who directly participated in the manufacturing and fabrication of the Bjork-Shiley C/C artificial heart valve surgically implanted into ‘KA’, deceased, in particular, the employment records of the welder, Junior Cervantes.”
I am not persuaded that any restraining order should be made by this Court against the applicants to prevent them from proceeding in the United States in accordance with the foreshadowed application. That Court imposed the Stangvik conditions and it has specifically retained jurisdiction in respect of the matter, notwithstanding the stay. This was no doubt to facilitate the implementation of those conditions. Moreover, I do not consider that if this application is pursued in California it would interfere with the proper exercise of this Court’s jurisdiction in Australia.
Accordingly, I am not prepared to grant the orders sought in the respondents’ Notice of Motion of 15 July 1997.
When this matter comes on for hearing it will be a question for this Court, after hearing submissions and in the light of evidence, to determine whether any material furnished in the United States, pursuant to the orders currently sought, should be received into evidence or as to any conditions which ought be imposed if such material is admitted.
The present case is quite different from that before Gummow J in National MutualHoldings Pty Ltd v Sentry Corporation (1989) 22 FCR 209 and Lindgren J in Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 4) (1996) 64 FCR 61. One important distinguishing feature is the existence of Stangvik conditions in the present case.
There is nothing in the material before me to support a conclusion that the taking of any deposition would be constructed in such a way as might unreasonably annoy, embarrass or oppress any deponent or party: cf Allstate at 68, 70-71. Nor is there any suggestion of an Australian party being deprived of its legal advisers in Australian proceedings as a result of the United States proceedings as occurred in the National Mutual case. In National Mutual, Gummow J at 233, specifically contrasted the United States injunctions sought in that case, which would prevent Australian solicitors from acting in the litigation, with pre-trial discovery procedures, the subject of the House of Lords decision in South Carolina Insurance Co v Assurantie Maatschappij “De Zevern Provincien” NV [1987] AC 24.
In relation to condition 6 of the Stangvik conditions, Pfizer has agreed that depositions can be taken in the United States under s 2029. Again, whether any material produced as a result of those depositions would be admitted in evidence, if tendered, is a matter which must be considered at the appropriate time. If for example, the respondents can establish that they are taken by surprise or that they cannot reasonably be expected to meet the case advanced by the applicants, or that there is manifest unfairness, an appropriate determination can be made at that time. Realistically, in the course of a trial of the nature and scope of this proceeding there will be considerable flexibility in relation to the procedure to be adopted. It is obvious that not every contingency can be anticipated or dealt with on an informed and proper basis prior to the commencement of the hearing.
The applicants, by Notice of Motion of 15 July 1997, seek certain orders in relation to making, as yet unnamed, past and present employees of the respondents available to give evidence at the trial.
As I read the Stangvik condition as to the making of former employees available at the respondents’ cost, that determination is within the discretion of this Court. If an application is made for any specific present or former employees to be brought to Australia, and if they are reasonably available to testify, this Court must first be satisfied that such a person can be expected to be able to give material evidence in the proceedings. If this is so, it may be appropriate to exercise the discretion to make such an order. However, at present, I am not prepared to make any order in relation to any such witness. It seems to me that it is premature in the absence of any specific applications supported by evidence which might inform the Court as to the basis and necessity for such a course.
The applicants also seek orders that the applicants’ legal representatives be granted an immediate right to inspect all deposition and other material produced as a result of related litigation. As regards inspection of documents Stangvik condition 5 requires all documents in the possession of Pfizer to be made available in Australia which are relevant to the proceedings here at the expense of Pfizer.
This is a reasonable request in the light of the Stangvik conditions and I therefore make such an order.
List of Witnesses
The applicants seek an order by their Notice of Motion of 10 July 1997, that there be a list of witnesses whom the respondents presently intend to call. The reason for this is said to be in order to assist a determination as to which employees they may need to request under the Stangvik conditions. In my view this is a reasonable request and I direct the respondents by 28 July 1997 to inform the applicants as to the past and or present employees they presently intend to call.
Destruction of documents
In their Notice of Motion of 10 July 1997 the applicants also seek an order restraining the respondents from destroying any documents which may be relevant to the proceedings. Two matters were raised by the applicants to ground this request.
The first matter relied on was material in the correspondence referred to in “MFI 9”, particularly the fifth and sixth letters of 20 June 1997.
In the fifth letter from the respondents’ solicitors of that date, there is a reference to some documents which were listed in a sworn discovery list of 20 March 1997 which are now said to have been erroneously listed. These were described as numbered test reports. The solicitors said that in a number of cases, the tests were not completed or that a number of the tests were combined and results reported in a single test report. Accordingly some of the test reports listed would not have been generated.
In a sixth letter of 20 June 1997, the respondents’ solicitors refer to a number of discovered documents having been destroyed. These were said to be in the nature of demonstrative and visual aids created for use in the only matter which went to trial, namely Barillas v Shiley Inc. This case eventually settled. The instructions of the solicitors were that a number of documents used in that trial were destroyed because of space restrictions but that when the list of documents was compiled the respondents anticipated that the graphic demonstrative documents would be reconstructed for use in the present proceedings. It is said that they were erroneously listed because they have not been in fact reconstructed. This applied to a number of documents.
The second matter relied on in this respect was cl 11 of a Protective and Confidentiality Order dated 23 October 1993 (‘the Protective Order”) made in proceedings in the Superior Court of California to which Pfizer and Shiley were parties. Clause 11 of that order provides that within 30 days of the conclusion of the action all copies of confidential material shall be returned to the producing party or destroyed.
Any intentional destruction of documents subject to a discovery order could lead to the drawing of adverse inferences or may even amount in some circumstances to contempt of court. There is a heavy burden on legal advisers to make it clear to clients that documents which possibly have to be disclosed in relation to legal proceedings must be preserved: see Matthews & Marlek, Discovery, 1992, pars 10.16 to 10.20 and 11.03 to 11.04. This responsibility extends to making sure that corporate organisations are made aware of the duty to preserve documents.
However, while the Protective Order empowers destruction there is no evidence that any such material has been destroyed nor is there any evidence of a threat to destroy relevant materials.
I will not therefore make any order in relation to possible destruction of documents.
Further Discovery
The applicants’ motion for further discovery was filed in Court on 15 July 1997. The respondents required some time to seek instructions and consider what if any evidence may be relevant to this question. Accordingly, this matter has been stood over to be relisted for determination on 18 July 1997 at 2.15 pm.
Objections to Statements of Evidence
It is readily apparent from an examination of the Statements of Evidence filed by the applicants that a considerable amount of the material is, on its face inadmissible, at least as to form.
In order that the trial should not be impeded by unnecessary supplementary oral evidence I direct that within 14 days the respondents furnish to the applicants a list of objections to all of the witnesses statements currently filed on behalf of the applicants. Within 14 days of receipt of the respondents statements the applicants should serve a list of objections on the respondents. The purpose of this direction is that any objections which can be remedied by further affidavits should be so remedied prior to the hearing. The same procedure also applies in respect of any evidence in reply filed by the applicants. The respondents should file and serve a list of objections in relation to that material prior to 22 August 1997.
The orders I make on the individual Notices of Motion are as follows:
Applicants Notice of Motion of 10 July 1997
Order that:
The respondents provide to the applicants on or before 5.00 pm 28 July 1997 a list of witnesses upon whose statements they presently intend to rely on the hearing.
The costs of this motion be costs in the application.
Applicants Notice of Motion of 15 July 1997
Order that:
The applicants legal representatives be granted the right forthwith to inspect all deposition material produced as a result of related litigation and all other material produced as a result of such litigation.
Costs of this application be costs in the application.
Applicants Notice of Motion of 15 July 1997 (Discovery)
Order that:
The matter to be stood over to 2.15 pm on 18 July 1997.
Respondents Notice of Motion of 10 July 1997
Order that:
That the applicants provide the best particulars they can to the respondents on or before 24 July 1997 having regard to the reasons for decision on this motion and the matters raised in the course of the hearing by the respondents
Costs of this motion be costs in the application.
I dismiss the application insofar as it seeks a preliminary determination as to choice of law.
Respondents Notice of Motion of 4 July 1997
This is superseded by the respondents Notice of Motion of 15 July 1997.
Order that this Notice of Motion be dismissed with no order as to costs.
Respondents Notice of Motion of 15 July 1997
Order that:
The Notice of Motion be dismissed.
Costs to be costs in the application.
I further direct that:
The respondents file and serve any further or supplementary affidavits to deal with any matter raised as a result of the further particulars by 7 August 1997.
The applicants file and serve any affidavits in reply by 21 August 1997.
The respondents furnish to the applicants a list of objections to witness statements by 31 July 1997.
The applicants furnish to the respondents a list of objections to witness statements within 14 days of the receipt of those statements.
The respondents furnish to the applicants a list of objections to witness statements in reply prior to 22 August 1997.
I certify that this and the preceding eleven (11) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin
Associate:
Dated: 17 July 1997
Counsel for the Applicant: Mr B H K Donovan QC
Mr M L WilliamsSolicitor for the Applicant: Cashman and Partners Counsel for the Respondent: Mr R J Ellicott QC
Mr J V NicholasSolicitor for the Respondent: Freehill Hollingdale & Page Date of Hearing: 10, 11, and 15 July, 1997 Date of Judgment: 17 July 1997
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