Maronis Holdings Ltd & Ors v Nippon Credit Australia Ltd & Ors

[2000] NSWSC 138

Reported Decision: (2000)18 ACLC 609

New South Wales

Supreme Court

CITATION:	MARONIS HOLDINGS LTD & ORS v. NIPPON CREDIT AUSTRALIA LTD & ORS [2000] NSWSC 138 revised - 18/04/2000
CURRENT JURISDICTION:	EQUITY
FILE NUMBER(S):	SC 1946/94
HEARING DATE(S):	01/03/2000
JUDGMENT DATE:	9 March 2000
PARTIES :	Maronis Holdings Limited (First Plaintiff) Girvan Corporation (New Zealand) Ltd (In Liq.) (Second Plaintiff) Nippon Credit Australia Ltd (First Defendant) Paul Francis Petersen (Second Defendant) Warren Alexander Duncan (Third Defendant) Alan Raymond Ambler (Fourth Defendant) Christopher Raymond McCulloch (Fifth Defendant) Robert Vincent Ramsay (Sixth Defendant) Brian Wilson & 46 Ors t/as Clayton Utz (Seventh Defendant)
JUDGMENT OF:	Bryson J at 1

COUNSEL :	J.E. Marshall for Plaintiff P. Kerr for First Defendant M. English for Second Defendant P.W. Hopkins for Third Defendant P. Thompson for Fourth Defendant S. Burns for Sixth Defendant P. Durack for Seventh Defendant
SOLICITORS:	Henry Davis York for Plaintiff Allen Allen & Hemsley for First Defendant English Kearns for Second Defendant P.W. Hopkins for Third Defendant Thompson Eslick for Fourth Defendant Fifth Defendant in Person Greaves Wannan & Williams for Sixth Defendant Minter Ellison for Seventh Defendant
CATCHWORDS:	PRACTICE and PROCEDURE - subpoenas - access to documents and information. - CORPORATIONS - Investigation - transcripts of examinations and s.600 proceedings - provisions of s.25 and s.127 of CL limiting access - inspection of documents produced by ASIC on subpoena. Plaintiffs subpoenaed ASIC to produce examination transcripts and other documents which ASIC was restricted from disclosing - ASIC produced documents to Court - defendant (examinees) applied to Court for direction preventing access and inspection by plaintiffs - Judge inspected documents and allowed inspection by lawyers for plaintiffs subject to controls on communicating information - consideration of circumstances in which inspection of non-party's documents is allowed - legitimate forensic purpose.
LEGISLATION CITED:	Australian Securities and Investments Commission Act 1989 ss. 22, 23, 24, 25, 127 Supreme Court Rules Pt.23
CASES CITED:	Johns v. Australian Securities Commission and Ors (1993) 178 CLR 408 Commissioner for Railways v. Small (1938) 38 SR (NSW) 564 Burchard v. Macfarlane [[1891] 2 QB 241 Marcel v. Commissioner of Police of the Metropolis [1992] Ch. 225 National Employers’ Mutual General Association v. Waind & Hill [1978] 1 NSWLR 372 R v. Saleam (1989) 16 NSWLR 14
DECISION:	See para.32

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON J.

THURSDAY 9 MARCH 2000

1946/94 Maronis Holdings Limited & Anor v. Nippon Credit Australia Limited & Ors

JUDGMENT

1   HIS HONOUR: These reasons relate to the plaintiffs’ application for leave to inspect documents produced to the Court by the Australian Securities and Investments Commission (ASIC) by its officer Mr Zeke Pattra in answer to two subpoenas for production served on ASIC by solicitors for the plaintiffs. The first subpoena required production on 16 December 1998 and the second on 1 February 1999. The schedule of documents to be produced under the second subpoena included everything called for by the first and in addition covered wider ground. Its schedule was:

1. The transcripts of interviews, evidence or statement made or given by each of the following person during any Australian Securities Commission (as it then was) hearing or proceeding of whatever nature in connection with Girvan Corporation Limited ACN 001 164 398 and/or any Australian Securities Commission (as it then was) hearing or proceeding under section 600 of the Corporations Law in connection with the officers of Girvan Corporation Limited, or the fitness of any officer of Girvan Corporation Limited or a related entity to hold a corporate office or to manage a corporation.

2   The Schedule went on to name 13 persons including Mr Petersen, the second defendant, Mr Duncan the third defendant and Mr Ambler, the fourth defendant, and continued:

2. Any documents put on, shown to, or produced by the persons listed in 1 above or any other person in the course of the hearings or proceedings referred to in 1 above, and in particular:
(a) all minutes of meetings of directors of Girvan Corporation Limited and or Girvan Corporation (New Zealand) Limited in the period between June 1998 and January 1990;
(b) all board papers of Girvan Corporation Limited and or Girvan Corporation (New Zealand) Limited for the same period;
(c) all documents relating to Beazer PLC’s proposed acquisitions of shares in the capital of Girvan companies and/or participation as a joint venture partner in Girvan projects, including reviews commissioned by Beazer PLC from Peat Marwick Hungerford, and/or Jones Lang Wootton referred to in the minutes of Girvan Corporation Limited dated 17 February 1989, copy attached; and
(d) all communications between Girvan Corporation Limited and its various bankers in the period between June 1988 and January 1990.

3 When the subpoenas were issued the plaintiffs’ solicitor notified the solicitors for each other party that a subpoena had been issued to ASIC, but did not state what documents were called for. ASIC produced documents to the Court and they were kept in the Registry. On 13 February 1999 the fourth defendant, Mr Ambler, obtained from the Registrar a direction granting him immediate and preliminary access to the documents. In addition it was directed that documents which the fourth defendant identified as subject to a claim for privilege be separated from the documents produced, access not be granted to any other party until further order, and the fourth defendant notify the other parties of any claim for privilege. On 16 February Mr Ambler’s solicitors notified other persons concerned, including the solicitors for the plaintiffs and ASIC, that they had inspected the documents produced by ASIC and had identified one document for which the fourth defendant claimed privilege and/or objected to access being granted to the parties. That document was the transcript of an examination of Mr Ambler conducted on 18 April 1991 by the Australian Securities Commission pursuant to its compulsory powers under s.19 of the ASC Law. The grounds of objection stated were:

1. This document records confidential communications between our client and the ASC and was obtained pursuant to the exercise of the ASC’s compulsory powers;
2. The document appears to have been included in a bundle of documents produced to the Court by the ASIC in circumstances where the ASIC did not give prior notice either to ourselves or our client, of its intention to produce this document. In those circumstances we believe the ASIC acted in breach of its statutory obligations under section 127 of the ASIC Law and in breach of its own policy concerning the release of such documents;
3. As a corollary to 2 above, our client was denied an opportunity to make submissions to the ASIC concerning the production of the document and the ASIC failed to take into account relevant considerations concerning the production of the document;
4. On our perusal of the document it appears the document does not contain information related to any of the issues raised in the proceedings;
5. Production of the document under Subpoena appears to have been sought by the Plaintiff (or the Plaintiffs’ solicitors) without first having made any request of the ASIC to produce the documents in accordance with its statutory functions and powers. We refer particularly to section 25 of the ASIC Law and note that as a consequence of both the Plaintiffs and the ASIC failing to have regard t that provision, our client has been denied the protection afforded to him under the ASIC Law. We note in particular that pursuant to section 25 of the ASIC Law, the ASIC could not have released the document unless persuaded it was relevant to issues in the proceedings.

4 In correspondence that followed the solicitors debated whether examination of the fourth defendant under s.19 was relevant to the proceedings. Mr Ambler’s solicitor maintained that the question whether Girvan Australia was trading while insolvent was not relevant as there was no allegation in the Statement of Claim to that effect. 5 On 4 March 1999 the solicitor representing the third defendant, Mr Duncan, stated that Mr Duncan objected to material which had been produced on subpoena by ASIC being inspected by other parties under a general order for access and that Mr Duncan relied on similar grounds of privilege to those claimed by Mr Ambler. The grounds stated included complaints about the manner in which ASIC had proceeded in complying with the subpoena. The material subject to Mr Duncan’s objection was set aside in the Registry and marked “Privileged,” so that there has not been access to it by any other parties since then. 6 Mr Duncan’s privilege claim related to transcripts of examinations by ASIC under s.19 of the Corporations Law of Mr Duncan, Mr Ambler, Mr Ramsey, Mr Hill and Mr Bartrop, and to transcripts, exhibits and documents marked for identification in a hearing under s.600 of the Corporations Law in respect of Mr Duncan, Mr Petersen, Mr Hill and Mr Bartrop. Section 600, when in effect, related to ordering persons not to manage corporations. 7 In the plaintiffs’ Notice of Motion of 23 February 2000 the plaintiffs have asked for orders vacating the various directions relating to access which have been made by the Registrar and giving leave to each party to inspect the documents produced on subpoena. This application was opposed by solicitors representing Mr Petersen, Mr Duncan and Mr Ambler. 8 Provisions of the Australian Securities and Investments Commission Act 1989 (the ASIC Act) impose controls on ASIC’s giving information to other persons. ASIC’s powers to collect information, by compulsory process and otherwise, and its function of collecting information are limited to being exercised for the purposes for which they are conferred on ASIC. This imposes limits on the persons to whom and the purposes for which the Commission may give information to others. Provisions of the Act relating to giving information by the Commission to other persons are to be understood in the context of these limits. 9 Part 3 Division 2 of the ASIC Act relates to examination of persons. By s.22 examinations are to take place in private, and there are limitations on which persons may be present: subss.22(2) and 23(1). There may be a record of an examination: s.24. Section 25 relates to the circumstances in which ASIC may give a copy of a written record to another person. The cumulative effect of the requirement that the examination take place in private, the restriction on the persons who may attend, the regulation by s.25 of distribution of copies and the overriding limit restricting the collection and use of information to the purposes for which the powers were conferred is that a person who has been examined has a claim to protection of confidentiality. That claim is not unqualified because disclosures of information may take place in the course of proper use of the information for the purpose for which the information was obtained. Disclosure to others may take place in the course of conducting a prosecution, adducing evidence in a prosecution and in other ways. 10 Production of information by ASIC under compulsion of law, for example to a Parliament, a Court or a Commission of Inquiry, is not a breach of confidence. Subsections 25(1) and 25(3) empower ASIC to give a copy of a record to persons in the stated circumstances, and where ASIC acts in accordance with these provisions the disclosure is authorised. The impact of a decision of ASIC to act under one of these subsections may, depending on circumstances, give rise to an obligation to accord fair procedures to a person whose confidentiality would be affected before ASIC decides so to act. 11 Section 127(1) provides that ASIC shall take all reasonable measures to protect from unauthorised use or disclosure information given to it in confidence in or in connection with the performance of its functions or the exercise of its powers. This provision would appear to extend to information given to ASIC in a private examination and to the record of the information. Disclosures of various types of information are dealt with in subs.127(1A) and later subsections. A disclosure which takes place in accordance with subs.25(1) or 25(3) could not be unauthorised disclosure within s.127. 12 Production by ASIC in accordance with the requirements of a subpoena of a written record of an examination, or of other information collected in an investigation, such as an exhibit or thing marked for identification, is not expressly dealt with by the ASIC Act. I do not regard production by ASIC of a document in accordance with a subpoena as a disclosure at all; ASIC has no choice about compliance, and the exercise of producing a document does not fall within the concept of a disclosure. Production in compliance with a subpoena is not a thing which ASIC is enabled to do by the provisions of subss.25(1) or 25(3). 13 If ASIC considers to exercise of its powers under subs.25(3) it may incur an obligation to accord natural justice with respect to the examinee’s expectation that confidentiality will be protected; the decision and order of the High Court in Johns v. Australian Securities Commission and Ors (1993) 178 CLR 408 establish, in circumstances very different to the present circumstances, that there was an obligation of that kind where the circumstances in which ASIC gave out copies of written records allowed material or information contained in them to be published generally. Where ASIC produces a document to a Court in compliance with a subpoena or other order of a Court the protection of confidentiality with respect to the documents comes under the control of that court, and is not under the control of ASIC. 14   In the decision of the Court of Appeal of England in Marcel v. Commissioner of Police of the Metropolis [1992] Ch 225 there are observations which suggest that a body such as ASIC ought to inform a person who has a claim to confidentiality that a subpoena has been served: see pp.259B (Dillon LJ), 261D (Nolan LJ) and 266G-H (Sir Christopher Slade). Although some complaint was made in the course of submissions that ASIC had not given such notice, there was no evidence whether or not it had, and the absence of notice, if none was given, has not affected any party adversely because access has been restricted under directions of the Court pending the Court’s decision. 15 When the Court is considering what directions it should give allowing or restricting access to and inspection of documents which have been produced to it under subpoena it should take into account claims of confidentiality and give them appropriate protection; however protection of claims of confidentiality is not the only consideration before the Court when a party applies for access, and may be overridden by other considerations relating to public interest in the administration of justice and the interests of litigants in having relevant evidence available for tender. 16 When documents are produced to the Court at the hearing of proceedings in answer to a subpoena, the party who served the subpoena does not have a right to inspect the documents, nor do other parties, and inspection is allowed according to the Judge’s discretion. This practice was established by observations of Jordan CJ in Commissioner for Railways v. Small (1938) 38 SR (NSW) 564 at 574: “If the witness produces the documents, he produces them to the Court and not to the parties. He may, if he choose, state that he objects to their being handed to the parties for inspection. If so, it is for the Judge to make such examination of them as he thinks proper, and he may order such of them as he considers relevant to be read, or handed to the parties for inspection, as he may think desirable, with a view to their being tendered in evidence: Burchard v. Macfarlane [[1891] 2 QB 241 at 247-8].” The old Chancery practice described in Burchard v. Macfarlane at 248 in which parties could not see the document at all if the person producing it objected to inspection, upon which event the Judge would inspect the document and allow it to be read if was satisfied that it was evidence for either party, does not represent the practice in New South Wales; inspection is allowed on a wider basis. 17 Practice and circumstances for allowing access are not the same now as they were when Small’s case was decided in 1938. Under Pt.37 r.4 of the Supreme Court Rules documents can usually be produced to a Clerk of the Court before the time at which the subpoena requires their production, and under r.2(2) the subpoena may require production on a day before the hearing day. Where that happens, r.10 forbids a party other than the person who produced documents from inspecting them except with the leave of the Court. Leave is usually granted by a Deputy Registrar, and is, for practical purposes, a matter of course where there is no objection to inspection by the person who produced the documents or by anyone else. Rules allowing production to the Registry before the hearing day have greatly expanded the opportunities for inspection of documents and use of information in them. 18 The practice of allowing inspection was stated, after considering Small’s case including the passage set out above, by Moffitt P in National Employers’ Mutual General Association v. Waind & Hill [1978] 1 NSWLR 372 at 382-386. Moffitt P’s observations show clearly that it was not essential, if inspection is to be allowed, that the document inspected should itself be admissible in evidence, and that the power exists for the purpose of taking all steps necessary for the proper trial of the issue (at 384C-D) or “… to permit the use of the document in any such way as [the Judge] considers will aid a proper decision of the issues between the parties, by facilitating the elucidation of the truth in respect of relevant facts …” (at 383D). This purpose could be served if inspection would show matters which might used in cross-examination, even if the document itself would not prove them; or if inspection would tend to reveal the significance of other facts or documents. 19 Moffitt P stated at 385:

The crucial question in relation to the exercise of the discretion to permit inspection in the second step is whether the documents have apparent relevance to the issues. It is at the third step that questions between the parties of relevance in fact and admissibility are ruled upon. The judge is in some difficulty in determining whether documents are relevant prior to the presentation of the evidence or at the commencement of the case. If there is particular objection from the witness, or questions of privacy are involved, no doubt procedures can be adopted to ensure that only relevant documents are inspected. In other cases, it would appear appropriate to proceed to exercise the discretion, provided the documents are apparently relevant or are on the subject matter of the litigation. However, the limitation on the exercise of the judge’s discretion to allow inspection is that the document contains information of apparent relevance to the issues. Once the judge has that opinion, inspection will normally be allowed, notwithstanding that the document is not admissible as it stands, and notwithstanding that the party seeking inspection has not given any undertaking to tender it, or use it in cross-examination.

20   The Court may allow documents to be inspected if they are apparently relevant or are on the subject matter of the litigation; it is not necessary that they be relevant in the sense that a document itself tends to prove or disprove a fact in issue. The test applied is not the same as the test of relevance applied on objection to evidence. “Legitimate forensic purpose” epitomises the test, an expression that in this context appears to have originated in the judgment of Samuels JA in Maddison v Goldrick [1976] 1 NSWLR 651 at 666, and was used in the judgment of Hunt J for the Court of Criminal Appeal in R v. Saleam (1989) 16 NSWLR 14. Information which may lead to questions bearing on the credit of a witness could be inspected within Moffitt P’s observations. Information bearing on a party’s private affairs, or on business affairs not connected with the litigation could fall outside the test. 21 While the fourth defendant’s objection to access relates to one document, the transcript of his examination, the objections by Mr Petersen and Mr Duncan relate to transcripts of examination of themselves and to other documents, including transcripts of examinations of other persons and documents which these defendants produced to ASIC. During argument I observed that it appeared to me that I should look at the documents for the purpose of coming to a decision and no party objected to this. I have scanned the documents with a view to ascertaining their general subject matter but I have not read the contents with attention or scrutinised them. The examinations were conducted and the documents were received by ASIC in the course of investigating the affairs of companies referred to as the Girvan Group which included the plaintiffs, Girvan Australia and other companies commercially related to them. ASIC conducted proceedings under s.600 of the Corporations Law. The investigation arose out of the liquidation of Girvan Corporation and the financial difficulties of companies in the Girvan Group, while the present litigation arises out of commercial transactions and financing arrangements within the Group some months or up to a year before financial difficulties overwhelmed it. In my view there is sufficient to justify the plaintiff’s application to inspect them, and there are grounds on which the critical question referred to by Moffitt P should be answered in favour of inspection. 22 In scanning the documents I found no reference to the transactions relating to the first plaintiff and the Cross Roads development about which this litigation revolves, although there were many references to matters which bear on the general financial position of the Girvan Group. My inspection was not rigorous, and those representing the plaintiffs are better able to see implications of material for the conduct of their case. The application to examine the material expressed by the Notice of Motion appears to me to be for a legitimate forensic purpose; I do not predict whether or not the exercise will be productive. 23 The test for inspection is not the same as the test for discovery of documents. Discovery of documents has not been required from ASIC, and is not available; ASIC has not objected to production on the ground of difficulty of compliance. There has been discovery among the parties to this litigation, under Pt.23 of the Supreme Court Rules, which is applicable because the proceedings were commenced before 1 October 1996. It is possible that the defendants claiming privilege have copies of their examination transcripts, but none of these defendants has referred to them in discovery lists. I am not concerned in dealing with this Notice of Motion with any question relating to discovery. The test of relevance applied for discoverability under Pt.23 is not the test to be applied on this application. 24 The protection given to information by the ASIC Act does not arise for enforcement in the present application. However, the existence of protection is relevant to the discretion, and it was appropriate for reference to be made by legal representatives of these defendnts to the impact of an order allowing access on their entitlements and legitimate expectation of protection under that Act. In not upholding their contentions I have had regard to the legitimate forensic purpose which in my view will be served by allowing access, and also to the limitations which exist on the use which may be made by the plaintiffs and those advising them of information which they gain in this way; that information may only be used for the conduct of these proceedings, and may not be published, except and only to the extent that the information is received in evidence at the hearing of the proceedings and becomes public in that way. 25 The plaintiffs’ counsel contended that, as ASIC was investigating, to put the matter generally, the collapse of Girvan Corporation, the documents produced were likely, simply on the basis of the description in the subpoena, to contain much material relevant to the knowledge of directors within the group of the financial position of Girvan Australia; the plaintiffs claim that it creates a conflict of interest for directors when procuring a mortgage through a partially owned subsidiary. Plaintiffs’ counsel described the privilege claims of Mr Petersen and Mr Duncan as ambit claims without substance. 26 Submissions for the fourth defendant, Mr Ambler, developed the grounds of opposition by contending that in point of fact ASIC did not give notice that it intended to produce Mr Ambler’s transcript in answer to the subpoena, and pointed out that a letter from ASIC on 28 January 1999 reporting that documents had been delivered did not expressly refer to Mr Ambler’s transcript. He contended that as a matter of discretion the Court should refuse access having regard to the circumstances in which the transcript was brought into existence, which indicated that it was contemplated by all then concerned that the examination would be held in private, having regard to the statutory duties of ASIC to preserve confidentiality under s.127 of the ASIC Act, and to the limitation under s.25 of the circumstances in which information is to be released. It was contended that ASIC had acted in breach of its statutory duty to preserve confidentiality, and had departed from the statutory regime for the use and release of information without giving consideration to the exercise of its function under s.25. He referred to the procedure to be followed and the considerations which would arise if the plaintiffs endeavoured to obtain access to the examination transcript by applying to ASIC under s.25, and referred to the procedure followed by ASIC in such cases according to its Policy Statement 103. He contended that disclosure was unauthorised within the meaning of s.127. 27 Mr Ambler’s solicitor also referred to the issues raised on the pleadings and pointed out that there was no allegation in the Amended Statement of Claim that Girvan Australia was insolvent or was trading while insolvent. He contended that the mechanism in the ASIC Act by which the plaintiffs could seek access to the examination transcript provides means for consideration of the protection which ought to be given to Mr Ambler in accordance with that Act, and contended that as a matter of discretion I should require the plaintiffs to utilise that mechanism to obtain access to the transcript. Solicitors for Mr Thomson and Mr Duncan supported these submissions. Mr Duncan’s solicitor observed that Mr Duncan’s transcript contained statements which he made under compulsion and in private, and contended that the information should remain protected until handled in accordance with s.127. It was contended that the protection available to Mr Duncan against inspection should also attach to the transcript of his fellow directors and officers, which also came into existence in a context of compulsion. He also referred to there being no notice from ASIC of its production of documents in compliance with the subpoena before the documents were produced. 28 In my opinion the fact that a procedure exists under s.25 of ASIC Act for the release and use of documents does not qualify and has no implications for the existence or availability of the Court’s powers to allow and control access and inspection. The powers of the Court are not taken away or diminished by implication from provisions of the ASIC Act. The reference in s.127 to unauthorised disclosure is not accompanied by any provision to the effect that all disclosures other than those explicitly authorised elsewhere in s.127 are unauthorised; the word “unauthorised” recognises that disclosure may be required under compulsion of law. 29 In my opinion the first ground of objection relating to the confidentiality of the information is not a reason why inspection of the documents should be refused. However I am of the view that I should impose special controls on access so as to reinforce the obligations of the plaintiffs and their legal advisers to restrict the use of the information to the purpose of the conduct of these proceedings. I am of the view that there is much in the documents to be inspected which is likely to be of little or no use for the conduct of the proceedings; my opportunity to form a view is restricted, but there is a great deal of diffuse information, and much of it could be adverse to the interests of these defendants and other persons or embarrassing to them. For this reason I will limit access to the documents and to the information in them to barristers and solicitors representing the plaintiff, except in respect of any particular matter which they later satisfy me it is appropriate to communicate further. 30 On the second ground of objection, as indicated by earlier observations, I am not of the view that it has been shown that ASIC acted in breach of any obligation. In any event these defendants have had notice of the plaintiffs’ application for access in these proceedings and had a fair opportunity to debate it before me. The third and fifth grounds of objection are developments of the second. 31 On the fourth ground of objection these reasons show my view that those representing the plaintiffs should have an opportunity to inspect the documents and to act on their own view of the relation of the documents to issues in the proceedings. 32 My Orders are:

On the plaintiffs’ Notice of Motion of 23 February 2000:

(1) Direct that documents produced by Mr Zeke Pattra and Australian Securities and Investments Commission in answer to subpoenas for production returnable on 16 December 1998 and 1 February 1999 are subject to the following restrictions on access and inspection:

A. Australian Securities and Investment Commission, Paul Francis Petersen the second defendant, Warren Alexander Duncan, the third defendant and Alan Raymond Ambler the fourth defendant, may have access to and inspection of documents subject to claims of privilege by the second, third and fourth defendants.

B. The plaintiffs may have access to and inspection of the documents subject to claims of privilege by the second, third and fourth defendants but only in accordance with the following controls:

(i) the documents may be inspected by and information within the documents may be communicated to no more than four barristers and solicitors on behalf of the plaintiffs;

(ii) solicitors for the plaintiffs are to inform solicitors for the second, third and fourth defendants in writing of the names of the barristers and solicitors who will inspect the documents and receive communication of the information.

(iii) No part of the contents of the documents and no information contained in the documents is to be communicated to any other person other than those four barristers and solicitors without the written consent of the solicitors for the second, third and fourth defendants or leave of a Judge.


C. No other party may have access to or inspect the documents which are the subject of claims of privilege by the second, third and fourth defendants.

D. All parties may have access to and inspection of documents produced other than those the subject of claims of privilege by the second, third and fourth defendants.

(2) All earlier directions relating to access to or inspection of documents produced under these subpoenas are vacated.

(3) Liberty to apply on one day’s notice.

(4) The costs of the Notice of Motion are costs in the proceedings.

Last Modified: 09/25/2000