KC v Shiley Inc - [1997] FCA 796

FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE - application for further and better discovery - where order for discovery made exempting specific category of documents previously discovered in United States litigation - whether failure by respondents to comply with order for discovery - where failure by respondents to discover a large number of documents - whether further order for discovery necessary - where discoverable employee records subject to Californian privacy laws - where discoverable documents of experts subject to protective orders of United States court

Federal Court Rules, O 15 r 2, r 15

Commonwealth v Northern Land Council (1991) 30 FCR 1, cited
Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55, cited
Trade Practices Commission v CC (NSW) Pty Ltd (No 4) (1995) 58 FCR 426, applied

KC, KS, KF and KL v
SHILEY INCORPORATED AND PFIZER INCORPORATED

No NG 633 of 1993

TAMBERLIN J
SYDNEY
14 AUGUST 1997

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) NG 633 of 1993

)

GENERAL DIVISION )

BETWEEN:
KC
First Applicant

KS by her next friend KC
Second Applicant

KF by her next friend KC
Third Applicant

KL by her next friend KC
Fourth Applicant

AND:
SHILEY INCORPORATED
First Respondent

PFIZER INCORPORATED
Second Respondent

JUDGE: TAMBERLIN J

PLACE: SYDNEY

DATED: 14 AUGUST 1997

REASONS FOR JUDGMENT (DISCOVERY)

On this motion the applicants seek orders which require the respondents to comply with the discovery order made by Lockhart J on 13 December 1996, and in addition, seek orders in these terms:

“2.The Respondents give further discovery including but not limited to the following:
(a) Employment records of all persons engaged in the manufacture and fabrication of the heart valve which was implanted into the late ‘KA’ “the KA valve”.
(b) All records relating to the employment of Junior Cervantes.

(c) All documents relating to the research and other investigations carried out by or on behalf of the “Shiley Heart Valve Research Centre”.
(d) All records and/or documents relating to the research carried out by Professor Bass A de Mol, cardiovascular surgeon, including research on 70 degree Bjork Shiley Convexo Concave valves.
(e) All documents produced to or used by Professor Williams in relation to the report dated and annexures.

(f) A complete list of serial numbers of all the 70 degree Bjork Convexo Concave valves.

(g) All documents relating to and showing the serial numbers of all discs fitted into 70 degree Bjork Shiley Convexo Concave valves.
(h) All sets of Device History Records originating for the Fabrication Order 82002957 be produced.

(l) All correspondence, memoranda, telexes or any other written communication between Professor Viking Bjork and Shiley/Pfizer.”

During the hearing of this motion the applicants submitted draft orders (“MFI 14”) seeking:

“1.Within seven days Respondents to provide the Applicants with a copy of all lists, indexes and computerised records of all documents in their possession.
2.Within seven days Respondents to provide the Applicants with a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1997] FCA 796
Decision Date: 14 July 1997

CaseChat Overview and Summary

KC and others v Shiley Inc and others is a case in which the applicants seek orders that compel the respondents to comply with a discovery order made by Lockhart J on 13 December 1996. The applicants also seek orders for further and better discovery in relation to a large number of documents. The respondents, Shiley Inc and Pfizer Inc, are the manufacturers of the Bjork Shiley Convexo Concave heart valve. The claim arises out of the alleged defectiveness of the valve, which is said to have contributed to the death of the husband of the first applicant. The respondents have made numerous disclosures of documents and materials relevant to the valve and the proceedings but the applicants submit that the respondents have failed to comply with the discovery order and have failed to disclose a large number of documents. The applicants seek orders for the production of documents in a number of specified categories, including employment records, research documents, serial numbers and device history records, and correspondence. The respondents have resisted the application on a number of grounds, including privacy laws in the United States and protective orders made by United States courts. The court held that the purpose of discovery is to require compulsory disclosure of documents and information relevant to the proceedings. It enables parties to obtain evidence or admissions from the other party. It is directed to avoiding surprise and encouraging settlement. Documents are discoverable if they relate to any matter in question between the parties. The court considered the evidence and submissions and held that the respondents had failed to comply with the discovery order and had failed to disclose a large number of documents. The court held that the respondents should be ordered to comply with the discovery order and to produce the documents in the specified categories. The court held that the respondents should be ordered to conduct an immediate review of their discovery process to ascertain whether there are any other classes of documents in existence and as to any locations where relevant documents which have not already been discovered are stored or retained. The court held that the respondents should make available the maximum practicable resources to promptly process these documents. The court held that the respondents should make available the documents on an ongoing basis rather than waiting until the completion of any review or classification process. The court held that the respondents should provide a list of all documents which the respondents contend cannot be ordered to be produced on discovery by the Federal Court of Australia because of the operation of any Californian law relating to privacy. The court held that the respondents should provide a list of all documents which the respondents contend cannot be ordered to be produced on discovery in the present litigation by the Federal Court of Australia because of the operation of any Californian law relating to privacy. The court held that the respondents should provide a list of all documents which the respondents contend cannot be ordered to be produced on discovery in the present litigation by the Federal Court of Australia because of the operation of any protective order made by a United States court. 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The court held that the respondents should provide a list of all documents which the respondents contend cannot be ordered to be produced on discovery in the present litigation by the Federal Court of Australia because of the operation of any protective order made by a United States court. The court held that the respondents should provide a list of all documents which the respondents contend cannot be ordered to be produced on discovery in the present litigation by the Federal Court of Australia because of the operation of any protective order made by a United States court. The court held that the respondents should provide a list of all documents which the respondents contend cannot be ordered to be produced on discovery in the present litigation by the Federal Court of Australia because of the operation of any protective order made by a United States court. 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Orders