Turner v Bayer Australia Ltd (No 5)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

MAJOR TORTS LIST

S ECI 2019 02916

BETWEEN:

PATRICE SARAH TURNER	Plaintiff
v
BAYER AUSTRALIA LTD (ACN 000 138 714) & ORS (according to the attached Schedule)	Defendants

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JUDGE:	Matthews AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	25 October 2022, further materials filed sequentially, last of which was 10 January 2023
DATE OF RULING:	10 March 2023
CASE MAY BE CITED AS:	Turner v Bayer Australia Ltd (No 5)
MEDIUM NEUTRAL CITATION:	[2023] VSC 104 (First revision 6 November 2023)

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PRACTICE AND PROCEDURE – Legal professional privilege – Plaintiff’s challenge to Defendants’ privilege claims – Adequacy of Defendants’ evidence for and description of privilege claims – Defendants’ initial approach inadequate – Status of attachments to privileged emails – IOOF Holdings Ltd v Maurice Blackburn Pty Ltd [2016] VSC 311 referred to – Evidence Act 2008 (Vic), ss 18, 19 applied.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Guo	Slater & Gordon Lawyers
For the First to Fourth and Sixth Defendants	Mr J Teng	Clayton Utz

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

The Plaintiff’s first summons...................................................................................................... 1
The Plaintiff’s second summons................................................................................................. 3
Compliance with orders made in respect of the Privilege Applications.............................. 4
Material relied upon by the parties in respect of the Privilege Applications...................... 4

Background......................................................................................................................................... 6

What this proceeding is about..................................................................................................... 6
The Agreed Discovery Plan and discovery made by the Defendants pursuant to it......... 6
Defendants’ privilege claims challenged by the Plaintiff....................................................... 8

Applicable law and principles...................................................................................................... 11

Statutory provisions.................................................................................................................... 11
Applicable Principles.................................................................................................................. 12

Aspects of the First Privilege Application.................................................................................. 14

Phases 1 and 2 of the ADP involved mere replication of privilege claims from US Litigation 14
Plaintiff’s submissions...................................................................................................... 14
Defendants’ submissions.................................................................................................. 15

Does paragraph 3.3(c) of the ADP mean that the Defendants’ approach to LPP claims for Phases 1 and 2 is justified?............................................................................................................ 15
Defendants’ submissions.................................................................................................. 15
Plaintiff’s submissions...................................................................................................... 17

Adequacy of the descriptions relied upon for the LPP claims for Phases 1 and 2............ 18
Plaintiff’s submissions...................................................................................................... 18
Defendants’ submissions.................................................................................................. 19

Adequacy of the descriptions relied upon for the LPP claims for Phase 3........................ 20
Plaintiff’s submissions...................................................................................................... 20
Defendants’ submissions.................................................................................................. 22

The Court’s ruling at the hearing of the First Privilege Application................................... 23

The Defendants’ evidence filed subsequent to the hearing on 25 October 2022................ 25

The Defendants’ subsequent evidence in respect of the First Privilege Application........ 25
The Defendants’ evidence in respect of the Second Privilege Application........................ 32

Correspondence between the parties following the Defendants’ further evidence........... 36

The LPP claims now challenged by the Plaintiff....................................................................... 36

Description of the Final Challenged List................................................................................. 36
The Defendants’ Privilege Codes.............................................................................................. 38
The Plaintiff’s Challenge Codes................................................................................................ 40

Consideration.................................................................................................................................... 41

Further consideration and/or clarification in respect of the First Privilege Application as it stood by the conclusion of the hearing on 25 October 2022................................................... 41
Consideration of the Second Privilege Application prior to the orders made on 17 November 2022.............................................................................................................................................. 43
General findings in respect of the Defendants’ additional evidence.................................. 44
General findings in respect of the LPP claims and the Plaintiff’s challenges as contained in the Final Challenged List........................................................................................................ 45
Findings in respect of specific documents............................................................................... 48

Conclusion......................................................................................................................................... 49

HER HONOUR:

Introduction

This ruling concerns two applications by the Plaintiff challenging claims made by the First to Fourth and Sixth Defendants to legal professional privilege over documents discovered by one or more of them in this proceeding.

By the time of preparing this ruling, following further materials filed by the parties, the Plaintiff’s challenge has been reduced from 1,727 documents to 340 documents. While it is necessary to set out some of how we got to this point, the ruling in respect of which privilege claims the Court has accepted and which have been rejected is confined to the 340 documents which remained in contention.

For the reasons which follow, my ruling is that the Defendants’ initial approach to claiming legal professional privilege was inadequate however the evidence filed subsequently, in particular in relation to the re-review of privilege claims, was broadly sufficient to maintain most of the claims to privilege, with rulings in respect of each of the documents said to be privileged challenged by the Plaintiff set out in the Annexure to this ruling and by reference to particular paragraphs in these reasons.

The Plaintiff’s first summons

By summons filed 6 September 2022 (‘First Summons’), the Plaintiff sought various orders in respect of discovery by the First to Fourth and Sixth Defendants (for the purposes of this ruling, defined as the ‘Defendants’). Much of the relief sought in the First Summons was dealt with by consent orders made on 20 September and 10 October 2022 and at the hearing of the First Summons on 25 October 2022 (‘Hearing’), however the issue of the relief sought in paragraphs 1 and 2 of the First Summons was not finally determined on that day. By paragraphs 1 and 2 of the First Summons, the Plaintiff effectively sought production of some 1,278 documents which had been withheld by the Defendants and production of the entirety of 203 documents which had been partly redacted by the Defendants, that withholding and redacting having been made on the basis of claims to legal professional privilege (‘First Privilege Application’).

The parties filed affidavits and written outlines in respect of the First Privilege Application and they made oral submissions at the Hearing. After considering all of this, I made orders at the conclusion of the Hearing which effectively gave the Defendants an opportunity to put on further evidence in respect of their claims to legal professional privilege (‘LPP’), for the Plaintiff to indicate the documents in respect of which she continued to challenge the Defendants’ claims to LPP, and for the First Privilege Application to be determined on the papers (subject to any further order of the Court). The timing of these matters was subsequently extended by consent. In effect, therefore, following the conclusion of the Hearing, the orders were that:

(a) by 19 October 2022 (later extended to 7 December 2022), the Defendants file and serve any further affidavit(s) containing the evidence upon which they rely in support of their claims to LPP over documents identified in the Plaintiff’s letter dated 21 October 2022;

(b) by 30 November 2022 (later extended to 14 December 2022), the Plaintiff shall notify the Defendants and my Associate of the LPP claims in respect of which she maintains her challenges; and

(c) subject to any further order of the Court, the First Privilege Application be determined after 30 November 2022 (later extended to 14 December 2022) on the material filed to 25 October 2022 (including each party’s written outlines), the oral submissions made at the Hearing, the material to be filed in accordance with the above two-subparagraphs, and a sample set of documents nominated by me if I so requested.

In addition, in orders I made on 7 December 2022, I directed that by 4:00pm on 15 December 2022, the parties were to confer and then send to my Associate in a joint email a list of the material relied upon for the purpose of determining the First Privilege Application and copies of the submissions relied upon (as filed and served for the Hearing) in word format.

The Plaintiff’s second summons

By summons filed 16 November 2022 (‘Second Summons’), the Plaintiff sought further orders in respect of other aspects of the First to Fourth Defendants’ discovery. Again, some of the relief sought in the Second Summons was dealt with by consent or by orders made at a hearing on 9 December 2022. By paragraph 3 of the Second Summons, the Plaintiff sought production of unredacted copies of documents listed in annexure B to the Second Summons, which had been withheld by the Defendants on the grounds of LPP (‘Second Privilege Application’).

In orders made by consent on 7 December 2022 in respect of the Second Privilege Application:

(a) the deadline for the Defendants’ affidavits in respect of the Second Summons was extended to 25 November 2022;

(b) by 4:00pm on 7 December 2022, the Defendants were to file and serve any further privilege logs relating to the documents requiring further consideration as noted at paragraph 30 of the affidavit of Gregory John Williams sworn 25 November 2022;

(c) the Second Privilege Claim was to be determined together with the First Privilege Claim, so that

(i) by 4:00pm on 14 December 2022, the Plaintiff was to notify the Defendants of the LPP claims she continued to challenge; and

(ii) subject to any further order of the Court, the Second Privilege Application be determined after 14 December 2022 on the material filed to date, the oral submissions previously made, and the material to be filed in accordance with these orders.

The direction referred to in paragraph 6 above also applied to the Second Privilege Application.

Thereafter, the First Privilege Application and the Second Privilege Application (together, the ‘Privilege Applications’) moved in tandem.

Compliance with orders made in respect of the Privilege Applications

By email dated 14 December 2022, the Plaintiff’s solicitors informed my Associate that the Defendants had not yet produced the fully updated set of documents in respect of which they had altered their position regarding the LPP claims, and so the deadline previously set for the Plaintiff to advise of which documents were still challenged could not be met.

On 22 December 2022, the Plaintiff’s solicitors informed my Associate and the Defendants of which documents she maintained her challenge to the Defendants’ LPP claims and set out in summary form the bases for the objections.

On 23 December 2022 at 5:28pm, the joint email to my Associate was received which set out the list of documents relied upon, word versions of the submissions, and copies of three letters between the parties.

On 10 January 2023, the Plaintiff’s solicitors sent an email to my Associate providing an update to the Court. Correspondence between the parties on 23 December 2022 and the Plaintiff’s subsequent consideration of that led to the Plaintiff withdrawing her challenge to six documents and otherwise altering the basis for her challenge to ten documents, and a revised list of challenged documents was provided, along with copies of the correspondence between the parties.

Material relied upon by the parties in respect of the Privilege Applications

Pursuant to the direction referred to in paragraph 6 above, the parties informed the Court that the following materials were relied upon in respect of the Privilege Applications:

(a) the affidavit of Rory John Walsh, sworn on 5 September 2022 (‘First Walsh Affidavit’);

(b) the affidavit of Gregory John Williams sworn 5 October 2022 (‘First Williams Affidavit’);

(c) the Plaintiff’s outline of submissions dated 13 October 2022 (‘Plaintiff’s Outline’);

(d) the Bayer/AMSL Defendants’ outline of submissions dated 20 October 2022 (‘Defendants’ Outline’);

(e) the affidavit of Rory John Walsh sworn 16 November 2022 (‘Second Walsh Affidavit’);

(f) the affidavit of Gregory John Williams, sworn on 25 November 2022 pursuant to Order 6 of the Orders made by Associate Justice Matthews dated 25 October 2022 (‘Second Williams Affidavit’);

(g) the affidavit of Gregory John Williams, sworn on 25 November 2022 pursuant to Order 1 of the Orders made by Associate Justice Matthews dated 17 November 2022 (‘Third Williams Affidavit’);

(h) the affidavit of Gregory John Williams, sworn on 7 December 2022 (‘Fourth Williams Affidavit’);

(i) the final list of documents subject to the Defendants’ legal professional privilege claims to which the Plaintiff maintains her challenges (‘Final Challenged List’);[1]
[1]This was originally provided to the Court by email on 22 December 2022 but was subsequently revised by the Plaintiff on 10 January 2023. It is the version sent to the Court by email on 10 January 2023 which the Court has relied upon and which is the Final Challenged List.

(j) letter from Clayton Utz (solicitors for the Defendants) to Slater and Gordon (solicitors for the Plaintiff) dated 14 December 2022;

(k) letter from Slater and Gordon to Clayton Utz dated 15 December 2022;

(l) letter from Clayton Utz to Slater and Gordon dated 16 December 2022;

(m) letter from Clayton Utz to Slater and Gordon dated 23 December 2022; and

(n) letter from Slater and Gordon to Clayton Utz dated 9 January 2023.

In considering the Privilege Applications and preparing these reasons, I have had regard to all of the material referred to in the preceding paragraph and to the transcript of the hearing on 25 October 2022, whether mentioned specifically in these reasons or not.

Background
What this proceeding is about

The background in respect of this proceeding can be shortly stated.

This a group proceeding, commenced by the Plaintiff on 28 June 2019 on her own behalf and on behalf of all persons who received an implant of one or more of the permanent contraceptive medical devices in Australia marketed, labelled or identified as a “STOP” device or an “Essure” device (collectively, the ‘Essure Device’) at any time on or prior to 31 December 2018 and has suffered harm as a result of the Essure Device. Broadly speaking, the Plaintiff claims that the Essure Device was defective and that it caused her and group members injury, damages and loss. Broadly speaking, the Defendants are companies involved in the design, manufacture, marketing, promotion and/or importing of the Essure Device.

The Agreed Discovery Plan and discovery made by the Defendants pursuant to it

The parties have been making discovery in the proceeding in accordance with the agreed discovery plan agreed between them on 12 May 2021 and filed with the Court (‘ADP’).

The ADP provides for discovery to occur in five phases. Phases 1 to 4 of the ADP provided for production of documents at different times but allowed for the Defendant to work on those phases concurrently. Further discovery pursuant to Phase 5 was to be considered after completion of discovery pursuant to Phases 1 and 2.

Phase 1 of the ADP involved the Third Defendant and Fourth Defendant discovering documents relevant to the issues in dispute from identified production sets from either the Federal District Court for the Eastern District of Pennsylvania litigation (‘EDPA litigation’) or California Judicial Council Coordination Proceedings (‘JCCP litigation’) (together, ‘US Litigation’).

Phase 2 of the ADP involved the Third Defendant and Fourth Defendant discovering documents relevant to the issues in dispute from specific custodial file productions that had been made in the US Litigation in relation to specific persons.

In relation to Phase 1 and Phase 2 of the ADP:

(a) among other things, Phase 1 involved searches in relation to specified US production sets identified because they included ‘Clinical Trial Notification and Protocols concerning Essure’ and ‘Clinical Data Final Reports concerning Essure’;

(b) the production of documents as part of Phase 1 and Phase 2 concluded on 26 October 2021 (aside from certain administrative reproductions on 15 November 2021); and

(c) the verification affidavit of Christian Savine dated 6 December 2021 deposed to the production of 359,825 documents produced as part of Phase 1 and Phase 2 of the ADP and to completion of Phase 1 and Phase 2 of the ADP.

Phase 3 of the ADP involved discovery by the First, Second and Sixth Defendants of relevant documents from specific document sets from employee email accounts and the “AMSL network drive”. In relation to Phase 3 of the ADP:

(a) Final substantive production for Phase 3 was made on 27 August 2021 (aside from one document produced by the Second Defendant on 7 December 2021 and an administrative reproduction made by the First Defendant on 23 November 2021) and comprised 41,349 documents as follows:

(iii) 11,069 documents discovered and produced by the First Defendant.

(iv) 12,913 documents being discovered and produced by the Sixth Defendant.

(v) 17,367 documents discovered and produced by the Second Defendant.

(b) The following verification affidavits were deposed on behalf of the following defendants confirming completion of Phase 3 of the ADP for those relevant defendants:

(i) Pierre Paul Baldacchino on behalf of the First Defendant, dated 3 December 2021.

(ii) Suhayl Khan on behalf of the Sixth Defendant, dated 6 December 2021.

(iii) Thomas Martin Naues on behalf of the Second Defendant, dated 2 February 2022.

Defendants’ privilege claims challenged by the Plaintiff

Following the Defendants making discovery, in around April 2022 the Plaintiff sought further information from the Defendants as to their claims to legal professional privilege (‘LPP’).

In respect of documents discovered in Phases 1 and 2, no particulars as to the Defendants’ LPP claim had been given. Commencing 19 August 2022, the Defendants provided to the Plaintiff some US privilege log data in tranches. As I understand it, the US privilege logs containing certain information as to claims to privilege were required to be produced as part of the discovery process in the US Litigation, and what the Defendants provided to the Plaintiff were copies of those logs containing the documents discovered in Phases 1 and 2 (‘US Privilege Logs’).

In respect of documents discovered in Phase 3, the discovery verification affidavits set out five bases on which privilege was claimed. The Plaintiff does not challenge documents categorised as basis 1 or 4, but does challenge those categorised as basis 2, 3 and 5. Those three bases are described as follows:

(a) Basis 2 (Client-lawyer): Confidential communications, notes, memoranda, minutes or other documents between non-lawyer client and client’s legal advisers (in their professional capacity) - including either in-house or external lawyers or both - with a view to obtaining or giving legal advice or assistance or in relation to actual or anticipated litigation.

(b) Basis 3 (Internal advice): Confidential communications, notes, memoranda, minutes or other documents between non-lawyers for the dominant purpose of obtaining legal advice or for receiving or repeating (passing-on) legal advice.

(c) Basis 5 (Other): All other confidential communications and documents in respect of which a claim for legal professional privilege or without prejudice privilege is made and which do not fit within bases 1 to 4.

The First, Second, and Sixth Defendants have identified one or more of the bases for each document, and additionally coded each document as either ‘litigation’ or ‘advice’ in the production indexes. The production indexes contain further information: for all documents, family ID, document format, date and custodians have been provided. For some documents, authors, sender/recipients and supplementary privilege descriptions have also been provided.

Correspondence between the parties ensued, which I do not need to set out here. It is sufficient to note that by the time the Plaintiff’s Outline was filed on 13 October 2022 prior to the hearing of the First Privilege Application, the Plaintiff had refined her challenges to the Defendants’ LPP claims, such that she challenged 1,481 claims to LPP out of a total of 6,315 LPP claims, comprising:

(a) 217 documents (out of a total of 924 wholly privileged documents) claimed to be wholly privileged and discovered in Phases 1 and 2 (of these, no US Privilege Logs were provided for 49 of them);

(b) 196 partially redacted documents (out of a total of 2,233 partially privileged documents) claimed to be partially privileged and discovered in Phases 1 and 2 (of these, no US Privilege Logs were provided for 16 of them);

(c) 1,062 documents (out of a total of 1,935 wholly privileged documents) claimed to be wholly privileged and discovered in Phase 3; and

(d) 6 partially redacted documents (out of a total of 1,223 partially privileged documents) claimed to be partially privileged and discovered in Phase 3.

Pursuant to the ADP, the Second Defendant was required to discover relevant documents from the repository of Mr Marco Serrani for the date range 1 January 2017 to 9 February 2018. Following correspondence to the Plaintiff from the Second Defendant in June and August 2022, the Second Defendant revised the timeframe such that it commenced on 1 December 2014. On 29 September and 2 November 2022, the Second Defendant produced, in tranches, some additional documents from Mr Serrani’s repository for the period 1 December 2014 to 1 January 2017 (‘Serrani Documents’).[2]
[2]Second Walsh Affidavit, [24] – [29].

Mr Walsh deposes that of the Serrani Documents:

(a) 158 were partially redacted for LPP; and

(b) 88 documents were wholly redacted for LPP

(together, ‘Serrani LPP Documents’).[3]

[3]Second Walsh Affidavit, [29].

Mr Walsh also deposes that the Second Defendant has not provided any production index, discovery affidavit or other form of information that could substantiate the LPP claims in respect of the Serrani LPP Documents.[4] The Plaintiff’s solicitor complained about this to the Second Defendant, which replied on 14 November 2022 that it would provide privilege logs after the Court had concluded its decision in respect of the First Privilege Application.[5] The Second Summons was then issued by the Plaintiff seeking production of the Serrani LPP Documents, and the procedural orders referred to as set out above were made.
[4]Second Walsh Affidavit, [30].
[5]Second Walsh Affidavit, [32].

Thus, the Second Defendant’s proposition that it not provide any information about its LPP claims in respect of the Serrani LPP Documents until after the First Privilege Application was determined did not prevail, and the Third Williams Affidavit addresses the Serrani LPP Documents. In addition, the Final Challenged List includes the Serrani LPP Documents which remain the subject of challenge by the Plaintiff after her review of the further material.

By the time of receiving the Final Challenged List in respect of both Privilege Applications on 10 January 2023, the Plaintiff had revised her challenges to the Defendants’ LPP claims and pressed those challenged in respect of 340 documents, being a mixture of documents then said by the Defendants to be wholly privileged or partly privileged.

Applicable law and principles
Statutory provisions

It was common ground that ss 118 and 119 of the Evidence Act 2008 (Vic) (‘Evidence Act’) applies.

Section 118 of the Evidence Act deals with legal advice privilege, providing as follows (‘Advice Limb’):

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of—
(a)a confidential communication made between the client and a lawyer; or
(b) a confidential communication made between 2 or more lawyers acting for the client; or
(c)the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person—

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

Section 119 of the Evidence Act deals with litigation privilege, providing as follows (‘Litigation Limb’):

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of—
(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or
(b) the contents of a confidential document (whether delivered or not) that was prepared—

for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.

Applicable Principles

The principles in respect of LPP[6] are well established and there is little utility setting out a fulsome discussion of them here, unless that is necessary to deal with the parties’ submissions. Generally speaking, the parties did not appear to differ on the general principles regarding privilege.
[6]The Evidence Act refers to it as ‘client legal privilege’ whereas it is usually referred to in common law cases as ‘legal professional privilege’. Nothing turns on this distinction and the terms are used interchangeably in these reasons.

The common law principles inform the content and application of ss 118 and 119.[7] In the context of applying the Evidence Act, in IOOF Holdings Ltd v Maurice Blackburn Pty Ltd,[8] Elliott J stated that the principles applicable to privilege “are not controversial” and summarised them as follows:[9]
[7]Samenic Ltd v APM Group (Aust) Pty Ltd [2011] VSC 194, [19] (Mukhtar AsJ).
[8][2016] VSC 311 (‘IOOF v Maurice Blackburn’).
[9]Ibid, [47], citations omitted.

(1)The party claiming the privilege bears the onus. That onus will only be discharged if the party establishes facts from which the court may determine that the privilege is being properly claimed.
(2)“Purpose” in “dominant purpose” means the purpose which led to the creation of the document or the making of the communication.
(3)The “dominant purpose” is the purpose which was the ruling, prevailing or most influential purpose at the time the document was brought into existence.
(4)There can be only 1 dominant purpose. If there are 2 purposes of equal weight, neither fits the description of a “dominant purpose”.
(5)If a dominant purpose existed, that dominant purpose must be determined objectively, having regard to the evidence, the nature of the document and the parties’ submissions. That said, evidence of the subjective purpose of the person making the communication or creating the document is relevant.
(6)Ordinarily, the relevant purpose is that of the person who brings into existence the document which includes the privileged communication, but this will not always be the case.
(7)As the test is directed towards the purpose of bringing the document into existence, a copy of a non-privileged document may be privileged.
(8)The material relied upon by the person claiming privilege must be focused and specific. Formulaic and bare conclusory assertions are not sufficient.
(9)With respect to advice privilege, in considering whether a communication is for the purposes of legal advice, the purposes must be construed broadly. Although it does not extend to pure commercial advice, legal advice, in this context, includes any advice as to what should prudently and sensibly be done in the particular legal circumstances in which the client finds itself.
(10)Further to subparagraph (9), a document created by a lawyer that records her or his legal work carried out for the benefit of the client, such as a research memorandum, a summary of documents or a chronology, will be protected by privilege whether or not the document is provided to the client. Similarly, notes and other material created by the client that relate to the legal advice sought (whether or not actually communicated to the lawyer), or that relate to communications with the lawyer, may be privileged where such documents meet the relevant “dominant purpose” test.
(11)With respect to litigation privilege, for a proceeding to be “anticipated or pending” for the purposes of s 119, there must be more than a mere possibility of litigation. As a general rule, there must be a real prospect of litigation, but it does not have to be more likely than not.
(12)Many claims for privilege may be determined by the court without the need to inspect the documents. Further, ordinarily, the court will not examine the documents if the party claiming privilege has not established a basis for the claim in an affidavit in support. However, in an appropriate case, the court may examine the documents to make a decision about privilege, particularly where the parties agree to this course.
(13)A law firm or a company may be a “client” if it engages or employs its own employee lawyer, but privilege will only attach to the relevant communication or document if the employee is consulted confidentially in her or his professional capacity, with the requisite degree of independence, in relation to a professional matter.

Aspects of the First Privilege Application

While somewhat overtaken by events, particularly those which occurred at and following the hearing on 25 October 2022, it is still helpful to set out (in summary form) the nature of the parties’ submissions in respect of the First Privilege Application, since this assists with understanding the outcome of that hearing and the steps subsequently taken. Where I describe the parties’ submissions in this section, it is by reference to the material before the Court as at 25 October 2022, particularly the Plaintiff’s Outline and the Defendants’ Outline, and reflects their positions as at that date.

Phases 1 and 2 of the ADP involved mere replication of privilege claims from US Litigation
Plaintiff’s submissions

The Plaintiff submitted that it is clear from the Savine Verification Affidavit that the LPP claims over documents produced in Phases 1 and 2 of the ADP were simply replicated by the Third and Fourth Defendants from the privilege claims made in the US Litigation.

The Plaintiff made a number of complaints about this approach.

First, those documents have been considered, and the appropriateness of those claims have been determined, based on the different law relating to privilege of a foreign jurisdiction. The Third and Fourth Defendants have not provided any information that indicates otherwise, or that such differences have been accounted for and the appropriateness of the laws in this jurisdiction considered. Moreover, the fact of a mere claim having been made under foreign law is not conclusive that privilege actually subsisted even under that foreign law. Similarly, the fact that an attorney acting for one of the US plaintiffs might not have challenged a claim (the Defendants’ evidence is silent as to what challenges if any were made and how those challenges were resolved) also could not be conclusive of the existence of privilege under Victorian law.

Second, the Third and Fourth Defendants have failed to make these claims by affidavit, as required by r 29.04(1)(d) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). Nor is there evidence as to who in fact reviewed the documents and asserted they are privileged, or the processes regarding same.

The Plaintiff submitted that notwithstanding these issues, she sought to narrow the dispute by requesting further information regarding the privilege claims. Eventually, this resulted in the Third and Fourth Defendants providing US Privilege Logs in respect of some of the documents. The adequacy or otherwise of the US Privilege Logs will be considered later in these reasons.

Defendants’ submissions

The Defendants submitted that their approach was justified by reason of paragraph 3.3(c) of the ADP and that to require anything further is not necessary or efficient. This submission is explored in the following section.

Does paragraph 3.3(c) of the ADP mean that the Defendants’ approach to LPP claims for Phases 1 and 2 is justified?
Defendants’ submissions

The Defendants submitted that the parties agreed that the documents for discovery in Phases 1 and 2 should be completed quickly and efficiently and in the interest of efficiency and cost-saving that the Third and Fourth Defendants could depart from compliance with the terms of the Document Management & Exchange Protocol (‘DMP’). This agreement is said to be reflected in clause 3.3(c) of the ADP which states:

The parties agree, in the interest of efficiency and cost-saving, compliance with the Document Management & Exchange Protocol located in Annexure A to the orders of the Honourable Justice Keogh dated 25 November 2020 is waived and the Third Defendant and Fourth Defendant are entitled to produce documents referred to in paragraph 3.1(a) above and 4.1(a) below in their original production file format (that is, in the format those documents were produced in the US litigation).

The Defendants submitted that the approach reflected in the ADP and the substance of what the Defendants understood the parties had agreed to in this regard reflects the practical recognition that processes in any large-scale document review exercise cannot realistically be completed to a standard of absolute perfection and that there is a need for proportionality including in dealing with the application of LPP having regard:

(a) to the overall discovery exercise required to be undertaken;

(b) by reference to the issues in the case; and

(c) the likely cost and time involved having regard the overarching purpose of the Civil Procedure Act 2010 (Vic) (‘CPA’) to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.

The Third and Fourth Defendants said that they have produced documents in Phases 1 and 2 in accordance with this agreement, and in compliance with the ADP. That is, the documents produced and identified by the Plaintiff in Annexure A and Annexure B of the First Summons were produced in the same form as those documents in the EDPA and/or JCCP litigation, inclusive of redactions or documents being withheld because of the equivalent of LPP.

While the agreement between the parties was to produce documents referred to in their original production file format, there was still a particular approach undertaken by the Defendants in respect of privilege in the US Litigation. Aside from a small number of challenged documents which were clawed back in the US Litigation, the Plaintiff has been provided with US privilege log data (or proxy US privilege log data) for all the US documents subject to privilege challenge in the First Summons.

The Defendants submitted that given their obligations in Phases 1 and 2 of the ADP are framed by reference to documents that were produced in the US Litigation, the Court should infer, having regard to the factors at paragraph 48 above, and based on the evidence, that LPP likely attaches to those documents as being confidential documents prepared for the dominant purpose of an overseas proceeding for which the Defendants have been a party.

The Defendants said that to effectively reopen consideration of this class of documents where the Defendants relied on that agreement in relation to documents produced that contain privilege redactions or non-production at this late stage in the proceeding is neither efficient or just and does not go to the central issue in dispute in this proceeding.

Having regard to the work that would be involved in reassessing the documents themselves, it was said that re-assessment of the LPP claims in those documents and then implementation of new Australian-specific redactions or coding changes would require the deployment of significant human and technological resources which come at a cost and time burden.

It was submitted that such a burden would be of little utility in the resolution of the real issues in dispute in this matter and where this application has been brought late in the overall proceeding itself. The Defendants said further that consideration has to be given to stage of the proceeding in which these privilege challenges have been brought, that is, late in the proceeding where the parties are preparing for trial in first quarter of 2023.

Plaintiff’s submissions

The Plaintiff submitted that the Third and Fourth Defendants’ reliance on paragraph 3.3(c) of the ADP in this regard is incorrect. She contended that neither paragraph 3.3(c), nor any other provision in the ADP, overrides the law relating to privilege or the requirement in r 29.04(1)(d) that privilege claims be made by affidavit.

She said that the DMP sets out various requirements relating to the form of discovered documents. In particular, part 5 of the DMP details, in circumstances where a document is privileged, how that document ought to be treated in the proceeding for the purposes of discovery.

The Plaintiff submitted that it is apparent that this section of the ADP was intended to waive compliance with the detailed requirements in the DMP regarding the format and exchange of documents. Waiver of the DMP in respect of these documents was not also the Plaintiff somehow waiving the law relating to privilege.

The Plaintiff said that the Third and Fourth Defendants’ argument that the assessment of privilege claims for the purpose of this proceeding ought not be conducted as it ‘involves human and technological resources which come at a cost and time burden’ is not persuasive. Most fundamentally, the overarching obligations in the CPA do not displace the law relating to LPP. Apart from that, the pitch to the overarching obligation is misleading: the Defendants themselves have benefitted substantially from the provisions of the ADP permitting production of documents from the US Litigation, saving them significant costs and time, including by way of limiting the need for extensive searches to be performed and the waiving of formatting requirements in respect of those documents. As a result of the Defendants’ failure to review LPP claims, the Plaintiff has had to engage in extensive review and protracted correspondence with the Defendants regarding their claims, including multiple requests for further information, which has resulted in the piecemeal provision of further information and the downgrading of former claims.

In terms of the timing of her challenges to the Defendants’ LPP claims, the Plaintiff rejected the proposition that these have come too late in the proceeding, pointing out that she first started agitating the basis for the Defendants’ LPP claims in April 2022.

Adequacy of the descriptions relied upon for the LPP claims for Phases 1 and 2
Plaintiff’s submissions

The Plaintiff said that the LPP claims she disputes are where the basis of the claim is not sufficiently stated or where the document did not appear to be privileged.

The Plaintiff said that the descriptions of the majority of the documents (including wholly privileged documents) challenged by the Plaintiff for which US Privilege Logs have been provided merely describe the documents as ‘containing thoughts opinions and legal advice’, ‘forwarding legal advice’, and ‘reflecting the request for and receipt of legal advice’. These assertions, not on affidavit (and therefore not compliant with the rules of this Court), do not establish that the documents were created for the dominant purpose of giving or obtaining legal advice or the provision of legal services.

By way of example, the Plaintiff said that there remain 49 documents entirely withheld from Phases 1 and 2 for which no US Litigation Privilege Logs was provided which the Plaintiff is challenging. The only evidence concerning LPP for these documents is the assertion (of a kind described in the paragraph above) that privilege applies. The only information provided by the Third and Fourth Defendants for these 49 documents is the document date, host reference document ID (if applicable), and custodian(s). The Plaintiff said that the First Williams Affidavit seems to concede no such privilege log data ever existed, at least in respect of some documents (that affidavit is not entirely clear on the point).[10] It follows that there is simply insufficient evidence to substantiate the claims.
[10]First Williams Affidavit, [21(b)-(e)].

Where US Privilege Logs have been provided for the wholly privileged Phases 1 and 2 documents, the Plaintiff said that the data does not explain why the entire document should attract privilege. For example, meeting minutes, marketing materials, and email chains that are stated as ‘containing legal advice’ are likely to be capable of being broken up into redacted portions for which the dominant purpose was to give or receive legal advice, and unredacted portions where this was not the case.

Defendants’ submissions

The Defendants submitted that they have provided sufficient information to justify their LPP claims in respect of Phases 1 and 2 documents, as:

(a) the Savine Verification Affidavit establishes that the documents which were wholly or partly privileged in the US Litigation were treated the same way from a privilege perspective in Phases 1 and 2;

(b) the broad circumstances in which the claims for LPP have been made are known to the Plaintiff, in respect of most documents listed in the First Summons, because privilege log data has been provided to her to help her understand the basis of the privilege claims for those documents; and

(c) the Defendants are not required to give sufficient detail so as to allow such description as would enable the Plaintiff to test the truth of the claim for privilege.[11]

[11]Relying on Hodgson v Amcor Ltd; Amcor Ltd v Barnes (No 2) [2011] VSC 204, [34] (Vickery J) (‘Hodgson v Amcor’).

Adequacy of the descriptions relied upon for the LPP claims for Phase 3

The manner in which the LPP claims for Phase 3 documents have been made is summarised in paragraphs 27 and 28 above.

Plaintiff’s submissions

The Plaintiff submitted that, by classification of the wholly withheld documents from Phase 3 into the Bases 2, 3 and 5, and labelling as either ‘litigation’ or ‘advice’, the Defendants have not sufficiently stated the grounds of privilege for these documents. Nor does the additional information provided in respect of some documents adequately state the claim.

For the majority of documents the only relevant information provided is the alleged privilege basis and type, being ‘litigation’ or ‘advice’. The Plaintiff submitted that these descriptions insufficiently state the privilege grounds for the following reasons:

(a) in relation to Basis 2, that category does not require that the documents have been made for the dominant purpose of legal advice or litigation (in contrast with Bases 3 and 4), the phrase ‘with a view to’ being broader than permitted;

(b) it is unclear whether any particular document, while coded as ‘advice’, relates to the obtaining or giving of legal advice. For example, a number of documents in this group have been given a supplementary description of ‘passing on’ legal advice, outside the terms of the description given for the basis, and which does not obviously also carry the implication that the ‘passing on’ was also done with the requisite dominant purpose;

(c) in relation to Basis 3, it is unclear how those documents, sent between non-lawyers, attract the requisite level of confidentiality and/or would have been made for the dominant purpose of legal advice; and

(d) in relation to Basis 5, there has been no attempt to explain that basis with reference to established principles relating to legal professional privilege, and it is unclear from the information provided why these documents are said to be subject to ‘without prejudice’ privilege, being emails sent between the Defendant entities.

Of the 1,062 contested wholly privileged documents, the Plaintiff said that supplementary privilege descriptions have only been provided for 202, and consist of one of three descriptions: ‘draft containing comments or amendments from a lawyer’, ‘passing on of legal advice’ or, in respect of Basis 3, ‘draft for legal review’. With respect to these categories and documents, the Plaintiff submitted that:

(a) it is not clear whether those documents would satisfy the dominant purpose test and attract the requisite confidentiality, as it is unclear how a document merely containing changes from a lawyer, or passing on some legal advice, serves the paramount or influential purpose of giving or obtaining legal advice or the provision of legal services;

(b) it is not clear whether the privilege is appropriately claimed over the documents as a whole and not capable of being broken up into privileged material (such as the portion of the document containing comments or amendments from the lawyer, or the portion containing legal advice), and non-privileged material;

(c) it cannot be assumed that a document attached to a document for which a supplementary description has been provided is similarly created for the same purpose;

(d) the sender/recipient have been provided for only 285 of the documents. Generally, no lawyer is mentioned in the available metadata, nor the lawyer is one of a number of recipients. It is not clear that the entire communications would meet the dominant purpose test;

(e) the deponents of the discovery verification affidavits with respect to the Bayer/AMSL Defendants’ discovery do not appear to be legal practitioners. The court should not accept at face value the assertions of privilege made by these deponents as to the documents withheld or redacted in this proceeding; and

(f) in respect of Phase 3, the First Williams Affidavit concedes that there has been overreach, but like that in respect of Phases 1 and 2, it is unexplained.[12] This further highlights how the claims cannot be taken to be conclusive.

[12]First Williams Affidavit, [29].

Defendants’ submissions

In respect of Phase 3, the Defendants submitted that there was a process undertaken for ‘logging’ each LPP claim for any document that was claimed to be partly or wholly privileged. This process included a review of:

(a) the privilege ‘type’ (i.e. litigation or advice);

(b) the basis or bases for the LPP claim (i.e. one or more of Bases 1 to 5); and

(c) whether the document is an ‘attachment to a wholly privileged host’ in the sense that the document is either an attachment to a ‘host’ document in respect of which a wholly privileged claim is made, or an attachment to an email chain where the ‘top’ (i.e. last) email is subject to a claim for privilege.

The Defendants submitted that in her LPP challenges, the Plaintiff has provided little detail about the basis upon which those challenges are made.

The Defendants said that they rely on the US Privilege Logs and the verification affidavits as being capable of substantiating their LPP claims over the challenged documents, and maintained that there is sufficient information to make out the Defendants’ LPP claims.

The Court’s ruling at the hearing of the First Privilege Application

During the course of argument on 25 October 2022, I asked counsel for the Defendants to confirm my understanding of the material, and that is that the documents then disputed by the Plaintiff had not been reviewed at all by the Defendants for a LPP claim in accordance with Australian law. Counsel confirmed that to be the case, referring to paragraph 3.3(c) of the ADP and the Defendants’ submission that this provision meant that they did not need to do so.

After hearing these submissions at the hearing of the First Privilege Application, the Court also heard submissions from the Plaintiff that the Court adopt a procedure of ruling on the application by reference to some 100 or so sample documents and proposed that these be chosen by the Court from a number of subcategories pertaining to Phases 1, 2 and 3. I asked counsel for the Defendants what their position was in respect of sampling, and after obtaining instructions, counsel stated that the appropriate procedure was for the Defendants to re-review the disputed documents, such review to be conducted by their Australian solicitors, and then for any sampling to occur.

In response, I stated that:

I was going to suggest the same and the reason that I was going to suggest that is that it seems to me that my sampling at this point is putting the cart before the horse. And that is, and I don't mean this with any disrespect but the defendants need to do their job first. And then if there's still a dispute, then that can be dealt with in due course. So what we'll do is make orders that those documents that are disputed where the privilege claim is disputed by the plaintiff for – in Annexure's A and B for Phases 1 and 2, be reviewed and I think – I'm not going to describe who has to do it, but at some point if there's an argument, you'll have to tell me what level of people have done that.
I mean, Clayton Utz manage discoveries all the time. I believe that to their good common sense in terms of how that's done, but I – but it needs to be done by people familiar with the requirements for privilege claim under Australian Law because that is the standard that we ought to apply here. So that takes care of that issue.[13]

[13]Transcript of hearing, 25 October 2022, 101.6-24.

In respect of the Phase 3 documents, counsel for the Defendants stated that they had been reviewed with a view to LPP claims made in accordance with Australian law. Nonetheless, counsel indicated that these too would be re-reviewed in the same way as the Phase 1 and 2 documents would be.

I observed the following in relation to the LPP claims over the Phase 3 documents:

The particular problem with the Phase 3 documents and the way that it's been done is, … there's a few problems with it, but … there's especially a problem with the description for Basis 2. It just doesn't meet what would be the test. And if those are going to be done, then it makes sense to do the remainder of the challenge to documents at Phase 3.[14]

[14]Transcript of hearing, 25 October 2022, 102.22-28.

I stated the following in respect of what I considered should occur from that point:[15]
[15]Transcript of hearing, 25 October 2022, 103.6 – 104.22.

I think they should be rereviewed by the Clayton Utz team and then a revised list for both wholly privileged or redacted documents. Because the redactions will need to be reviewed with a view to the Australian requirements. A revised list can be given to the plaintiffs in terms of what documents the privilege is maintained, either in full or in part, and which ones are no longer pressed by the defendants and then, to the extent there's any dispute at that point, I will hear from the parties.
…
It's perfectly fine for the court to inspect documents, provided that a prima facie case to a privilege claim has been made out. The court doesn't inspect the documents in order to divine the privilege claim for itself, as it were. And so far as sampling is concerned, that is a useful way of giving an indication that can then be applied so that the court isn't looking at a large number of documents. But I'm just concerned that, at the moment, the sampling exercise might well not serve a great deal of utility, given that what these documents need first is a rigorous privilege review by the legal team, applying Australian law. Because I do think that that's what is required here.
…
Well, it is, in effect, giving the defendants another go because basically what I'm effectively saying is that the material that's there is not adequate and if I had to decide it according to the material that's there, I don't even know that I would go and sample the documents. I would probably just say which documents by class I thought were not privileged.
…
So, the defendant is getting another crack at it and that's because of the concerns [I have identified]. Privilege is a substantive right, it's not a procedural right, it's a substantive right. And given the disputes that have emerged in terms of what the defence are required to do, what they weren't required to do, I think this is the fairest course.

I then discussed with the parties what procedural orders to make, leading to the orders I ultimately made on 25 October 2022 as set out in paragraph 5 above.

The Defendants’ evidence filed subsequent to the hearing on 25 October 2022
The Defendants’ subsequent evidence in respect of the First Privilege Application

Given the shortcomings in the Defendants’ approach to LPP submitted by the Plaintiff and the concerns about the Defendants’ approach stated by the Court at the hearing on 25 October 2022, it is important to set out the Defendants’ evidence as to what steps they took to re-review the challenged documents the subject of the First Privilege Application.

The Defendants rely on the Second Williams Affidavit in this regard. Mr Williams is a partner of Clayton Utz and is the solicitor on the record in respect of this proceeding for the First to Fourth and Sixth Defendants.[16] In that affidavit, Mr Williams describes the process undertaken to re-review LPP claims over the documents identified as challenged by the Plaintiff in the letter from Slater & Gordon dated 19 October 2022 that were discovered by the First, Second or Sixth Defendants (‘Supplementary Privilege Review’).
[16]Second Williams Affidavit, [1].

Mr Williams deposes that:

(a) the Supplementary Privilege Review was conducted by three junior barristers of the Victorian Bar, being Drossos Stamboulakis, Laura Mills and Sheeana Dhanji (‘barristers’) on the basis of instructions provided by, and under the guidance and supervision of, solicitors from Clayton Utz;[17]
[17]Second Williams Affidavit, [12].

(b) the privilege status of each of the documents in the Supplementary Privilege Review was assessed by the barristers and involved, among other things, preparing a free-text description of the basis for the privilege claim to the extent those claims are maintained by the Defendants;[18]
[18]Second Williams Affidavit, [12].

(c) where the LPP claim is maintained following this assessment, each document still subject to a LPP claim is itemised in a separate row of the privilege schedule exhibited to the Second Williams Affidavit;[19]

(d) Mr Gabriel Egli, partner of Shook, Hardy & Bacon, one of several law firms retained in the US as legal counsel for purposes of discovery and other document management issues arising in Essure-related litigation,[20] informed him that the Defendants’ document review vendor assisted to prepare the privilege schedule to contain a range of objective metadata (to the extent the metadata, such as document title or email subject line, did not otherwise disclose the substance of the LPP claim), as well as subjective coding that was created by the barristers for each document, such as the free-text ‘privilege descriptions’ and selection of ‘privilege basis’ categories;[21] and

(e) the challenged documents as well as family documents were batched for review by the barristers (‘Australian re-review set’). The Australian re-review set comprised approximately 1,000 documents.[22]

[19]Second Williams Affidavit, [13].

[20]Second Williams Affidavit, [7].

[21]Second Williams Affidavit, [14].

[22]Second Williams Affidavit, [15].

Mr Williams deposes as to the outcome of the Supplementary Privilege Review for the Australian re-review set, with the exception of about 50 documents which require further consideration as the privilege assessment could not be finalised by a barrister as contained (or were within a family containing) material in a foreign language.[23]
[23]Second Williams Affidavit, [16].

According to Mr Williams, the outcome of the Supplementary Privilege Review for the Australian re-review set (with the exception noted above) is that:

(a) the Defendants maintain the same wholly privileged claim as was relied upon at the time of original production in this proceeding in respect of approximately 90 documents;[24]
[24]Second Williams Affidavit, [17(a)].

(b) approximately 150 documents have had their privilege status downgraded from wholly privileged at the time of initial production to a part-privilege claim, and redacted copies will be produced;[25]

(c) the Defendants maintain a claim of part-privilege in respect of approximately 65 documents, however some reduction to the extent of redactions (as compared to the copy of the part-privileged version originally produced in this proceeding) has been applied in a number of cases, possibly around 35 documents. Updated redacted copies will be produced;[26]

(d) approximately 560 documents have had their privilege status downgraded from wholly privileged or part privileged, at the time of their original production, to not privileged, such that the Defendants no longer maintain LPP claims over those documents. Unredacted copies will be produced.[27]

[25]Second Williams Affidavit, [17(b)].

[26]Second Williams Affidavit, [17(c)].

[27]Second Williams Affidavit, [17(d)].

Mr Williams deposes that the privilege schedule itemises the documents in sub-paragraphs (a) to (c) of the preceding paragraph but not those in sub-paragraph (d).

The Defendants also rely on the Fourth Williams Affidavit in respect of the First Privilege Application.

The Fourth Williams Affidavit deals with the further Supplementary Privilege Review of the approximately 50 documents from the Australian re-review set that required further review due to documents being in a foreign language (‘Australian re-review set Foreign Language Documents’).[28]
[28]These documents are referred to in paragraph 82 above.

In respect of the Australian re-review set Foreign Language Documents, Mr Williams deposes that the Supplementary Privilege Review:[29]
[29]Fourth Williams Affidavit, [30] – [36].

(a) was conducted:

(iv) primarily by solicitors of Clayton Utz with at least 2 years post-qualification experience with proficiency in the relevant foreign languages; or

(v) in the case of a small number of documents, by the barristers;

(b) the barrister or solicitor assessed the privilege status of each document and, among other things, prepared a free-text description of the basis for the privilege claim to the extent those claims are maintained;

(c) each such document where the LPP claim is maintained is itemised in the privilege schedule;

(d) in respect of preparing the privilege schedule regarding these documents, the identification of attorneys for the purposes of privilege schedule data included a combination of manual document review and the use of a list of in-house and external lawyers identified as potentially having provided legal advice or services in relation to the Essure Device or being lawyers based on historical information assembled from prior and current litigation;

(e) the Defendant’s document review vendor assisted to prepare the privilege schedule in the same manner as described above.

Mr Williams deposes that following the Supplementary Privilege Review of the Australian re-review set Foreign Language Documents:

(a) the First and Second Defendants maintain the same wholly privileged claim as was relied upon at the time of original production in this proceeding in respect of approximately 25 documents;[30]
[30]Fourth Williams Affidavit, [37(a)].

(b) approximately 10 documents have had their privilege status downgraded from wholly privileged at the time of initial production to a part-privilege claim, and redacted copies will be produced;[31]

(c) the First and Second Defendants maintain a claim of part-privilege in respect of approximately 5 documents, however some part-privilege claims may have been amended to reduce or expand the extent of redactions, as the case may be (as compared to the copy of the part-privileged version originally produced in this proceeding). Updated redacted copies will be produced;[32]

(d) approximately 10 documents have had their privilege status downgraded from wholly privileged or part privileged, at the time of their original production, to not privileged, such that the First and Second Defendants no longer maintain LPP claims over those documents. Unredacted copies will be produced.[33]

[31]Fourth Williams Affidavit, [37(b)].

[32]Fourth Williams Affidavit, [37(c)].

[33]Fourth Williams Affidavit, [37(d)].

Mr Williams deposes that the privilege schedule exhibited to the Second Williams Affidavit itemises the documents in sub-paragraphs (a) to (c) of the preceding paragraph but not those in sub-paragraph (d).[34]
[34]Fourth Williams Affidavit, [38].

The Fourth Williams Affidavit also deals with the Supplementary Privilege Review conducted regarding challenged documents discovered on behalf of the Third Defendant from document productions from prior US litigation (‘US Challenged Documents’). As I understand it, the US Challenged Documents are a subset of the documents identified in the Plaintiff’s letter of 19 October 2022.

The Supplementary Privilege Review of US Challenged Documents was conducted by the barristers in the same way as described in the Second Williams Affidavit.[35] The privilege schedule was prepared in the same way as already described,[36] and the identification of attorneys was done in the same way as described above.[37]
[35]Fourth Williams Affidavit, [20].
[36]Fourth Williams Affidavit, [22], [24], [25].
[37]Fourth Williams Affidavit, [23].

Mr Williams deposes that a number of the US Challenged Documents are correspondence between outside counsel, in-house counsel and other employees, and an external litigation communications consultant retained by outstanding counsel called CLS Strategies. Mr Williams deposes that:[38]
[38]Fourth Williams Affidavit, [21].

(a) while there were a limited number of earlier claims, the US mass tort litigation involving the Essure Device began in November 2014. In 2016, plaintiffs filed mass tort proceedings in California, where the greatest number of claims were consolidated. Separate, similar litigation such as mass tort litigation in Pennsylvania and Kentucky courts was on foot from 2016 forward;

(b) from the beginning of the Essure US mass tort litigation, plaintiffs, plaintiffs’ counsel, and other advocates speaking on behalf of plaintiffs regularly appeared on social media, television and print media where they asserted claims regarding Essure’s safety and efficacy and described their legal strategy regarding the litigation. This also resulted in other media accounts describing those claims. In many instances, Jonathan Cohn (partner of Sidley Austin LLP) and Christopher Campbell (partner of DLA Piper US LLP), of law firms retained by Bayer US as legal counsel for the purposes of US Essure-related litigation, took the view that these claims were inaccurate and appeared intended to influence the courts, potential jurors and others regarding the validity of the plaintiffs’ claims;

(c) in May 2016, Sidley Austin LLP retained CLS Strategies to assist in gathering information regarding these media appearances to assist Sidley Austin and other outside counsel in providing legal advice to Bayer regarding litigation strategy and related communications issues; and

(d) at all relevant times from about this time, the work performed by CLS Strategies was performed under the supervision and instruction of Bayer’s outside counsel in the US and in relation to anticipated and actual litigation concerning the Essure Device.

Mr Williams deposes that the US Challenged Documents and any family documents were compiled into re-review set of approximately 340 documents categorised as privileged or partly privileged at the time of original production (‘US re-review set’).[39]
[39]Fourth Williams Affidavit, [25].

Mr Williams deposes that following the Supplementary Privilege Review for the US re-review set:[40]
[40]Fourth Williams Affidavit, [26].

(a) the Third Defendant maintains the same wholly privileged claim as was relied upon at the time of original production in this proceeding in respect of approximately 25 documents;

(b) approximately 65 documents have had their privilege status downgraded from wholly privileged at the time of initial production to a part-privilege claim, and redacted copies will be produced. There is one document where a part-privileged claim is made for a document which was treated as not privileged at the time of initial production;

(c) the Third Defendant maintains a claim of part-privilege in respect of approximately 80 documents, however some part-privilege claims may have been amended to reduce or expand the extent of redactions, as the case may be (as compared to the copy of the part-privileged version originally produced in this proceeding). Updated redacted copies will be produced;

(d) approximately 165 documents have had their privilege status downgraded from wholly privileged or part privileged, at the time of their original production, to not privileged, such that the Third Defendant no longer maintains LPP claims over those documents. Unredacted copies will be produced.

Mr Williams deposes that the privilege schedule itemises the documents in sub-paragraphs (a) to (c) of the preceding paragraph but not those in sub-paragraph (d).[41]
[41]Fourth Williams Affidavit, [27].

Mr Williams deposes that to the extent that the privilege status of the US Challenged Documents has been downgraded as described in the previous paragraph, those downgrades are the product of the re-review of the US Challenged Documents, which involved assessment of them according to Australian law relating to LPP, as opposed to US law relating to legal privilege which was applied in making privilege claims in the relevant prior US Litigation.[42]
[42]Fourth Williams Affidavit, [28].

The Defendants’ evidence in respect of the Second Privilege Application

The Defendants rely on the Third Williams Affidavit in respect of the Serrani Documents.

Mr Williams deposes that the Serrani Documents were produced in two tranches: 6,149 documents on 29 September 2022; and 4,264 documents on 2 November 2022.[43] He says that approximately 570 documents were withheld on the basis of LPP in one of the following categories:[44]
[43]Third Williams Affidavit, [15].
[44]Third Williams Affidavit, [17].

(a) produced to the Plaintiff in the form of a privilege slip-sheet (ie wholly privileged), being where the document was determined to be wholly privileged but was part of a document family in which at least one other document was produced in unredacted or part-privileged form;

(b) produced to the Plaintiff in a form which contained one or more redactions (ie part-privileged);

(c) withheld from production on the basis that the document was either:

(vi) part of a document family in which every document was determined to be wholly privileged; or

(vii) a standalone document (ie with no other family documents) that was determined to be wholly privileged)

(‘Withheld Documents’).

Following the orders made by the Court on 17 November 2022 in respect of the Second Privilege Application, Mr Williams deposes that a review of the Withheld Documents was conducted (‘Serrani Privilege Review’).[45] He deposes that the Serrani Privilege Review:
[45]Third Williams Affidavit, [27].

(a) was conducted by 13 solicitors of Clayton Utz with at least 2 years post-qualification experience, who assessed the privilege status of each of the Withheld Documents and, among other things, prepared a free-text description of the basis for the privilege claim to the extent those claims are maintained by the Second Defendant;

(b) the privilege schedule was prepared in the same manner as previously described for the Supplementary Privilege Review;[46] and

(c) there are approximately 85 Withheld Documents which require further consideration or instructions such as those containing foreign language (‘Serrani Foreign Language Documents’).[47]

[46]Third Williams Affidavit, [28] – [29].

[47]Third Williams Affidavit, [30].

Following the Serrani Privilege Review of the Withheld Documents (excepting the Serrani Foreign Language Documents), Mr Williams deposes that:[48]
[48]Third Williams Affidavit, [31].

(a) the Second Defendant maintains the same wholly privileged claim as was relied upon at the time of initial production in respect of approximately 130 documents;

(b) approximately 50 documents have had their privilege status downgraded from wholly privileged (at the time of initial production) to a part-privileged claim and redacted copies will be produced;

(c) the Second Defendant maintains a claim of part-privilege in respect of approximately 80 documents, however some reduction to the extent of redactions has occurred in relation to approximately 30 of these and updated redacted copies will be produced; and

(d) approximately 230 documents have had their privilege status downgraded from wholly or partly privileged to not privileged, and as such the Second Defendant does not maintain its LPP claim over those documents, and redacted copies will be produced.

Mr Williams deposes that the privilege schedule itemises the documents in sub-paragraphs (a) to (c) of the preceding paragraph but not those in sub-paragraph (d).[49]
[49]Third Williams Affidavit, [32].

The Defendants also rely on the Fourth Williams Affidavit in respect of the Serrani Foreign Language Documents.

In this regard, Mr Williams deposes that a privilege review of those documents was conducted (‘Further Serrani Privilege Review’). The Further Serrani Privilege Review:[50]

(a) was conducted by solicitors of Clayton Utz with at least two years post-qualification experience and where required for documents containing foreign language, by a Clayton Utz reviewer with relevant foreign language proficiency; and

(b) was conducted in the same manner and a privilege schedule prepared in the same manner described for the Supplementary Privilege Review of the Australian re-review set Foreign Language Documents, as was the identification of attorneys for the purpose of privilege schedule data.

[50]Fourth Williams Affidavit, [40] – [43].

Mr Williams deposes that following the Further Serrani Privilege Review:[51]
[51]Fourth Williams Affidavit, [44].

(a) the Second Defendant maintains the same wholly privileged claim as was relied upon at the time of initial production in respect of approximately 30 documents;

(b) approximately 10 documents have had their privilege status downgraded from wholly privileged (at the time of initial production) to a part-privileged claim and redacted copies will be produced;

(c) the Second Defendant maintains a claim of part-privilege in respect of approximately 35 documents, however some part-privilege claims may have been amended to reduce or expand the extent of the redactions and updated redacted copies will be produced; and

(d) approximately 15 documents have had their privilege status downgraded from wholly or partly privileged to not privileged, and as such the Second Defendant does not maintain its LPP claim over those documents, and redacted copies will be produced.

Mr Williams deposes that the privilege schedule itemises the documents in sub-paragraphs (a) to (c) of the preceding paragraph but not those in sub-paragraph (d).[52]
[52]Fourth Williams Affidavit, [45].

Correspondence between the parties following the Defendants’ further evidence

I have read the correspondence between the parties included in the list of materials relied upon.[53] I do not consider it necessary to set the content of that correspondence out here, as it is mostly the parties clarifying the various productions of documents with each other and it does not affect my consideration of the Defendants’ LPP claims in respect of the documents listed in the Final Challenged List.
[53]This is the correspondence itemised at paragraph 15(j) to (n) above.

The LPP claims now challenged by the Plaintiff
Description of the Final Challenged List

As set out above, on 10 January 2023 the Plaintiff provided the Defendants and the Court with the Final Challenged List.

The Final Challenged List is a spreadsheet which, as I understand it, reproduces the information in the privilege schedules produced with each of the Second, Third and Fourth Williams Affidavits (together, the ‘Privilege Schedules’) for each document over which the Plaintiff maintains her challenge to the Defendants’ LPP claims, together with some columns added by the Plaintiff in respect of her privilege challenges.

The Final Challenged List comprises the following columns:

(a) columns for the objective metadata as described by Mr Williams, being:

(viii) document ID

(ix)host document ID

(x) email from

(xi)email to

(xii) email CC

(xiii) email BCC

(xiv) title

(xv) file name

(xvi) email subject

(xvii) file type, document extension, file extension

(xviii) date sent

(xix) date last modified

(xx) author

(xxi) custodian

(b) columns reflecting the privilege review for the coding and free-text entries made by the barristers or the Clayton Utz reviewers, being (‘Defendants’ Privilege Codes’):

(i) privilege status: here, the entries are either ‘fully privileged – withhold’ or ‘privileged part – redact’

(ii) privilege basis: here, the entries are one or more of ‘client-lawyer’, ‘internal advice’, ‘lawyer-lawyer’, ‘internal litigation’, or ‘other’

(iii) privilege type: here, the entries are one or more of ‘advice’, or ‘litigation’

(iv) privilege description: I will provide a synopsis of these below.

(c) columns added by the Plaintiff to describe the LPP challenge for each document, being (‘Plaintiff’s Challenge Codes’):

(i) summary position on LPP as at 22/12/22, updated on 9/1/23: here, the entries are either ‘objection pressed’ or ‘document still withheld; accordingly objection pressed’. In respect of the latter, this is used for some of the documents where the privilege status is recorded as ‘privileged part – redact’

(ii) re all redactions or part: here, the entries are either ‘all’ or ‘part’. In respect of the latter, the part which is objected to is described (eg redactions in fourth email only)

(iii) explanation of objection x3: here, there are three columns to describe the objections, as some documents have up to 3 different objections made by the Plaintiff. A description of these is set out below.

The Defendants’ Privilege Codes

The ‘privilege status’ code is self-explanatory. The ‘privilege type’ code also appears straightforward to me: I apprehend that ‘advice’ corresponds to the Advice Limb and that ‘litigation’ corresponds to the Litigation Limb.

The entries for the ‘privilege basis’ code have not been explained in the Second, Third or Fourth Williams Affidavits or in any of the other material relied upon by the parties. This column is therefore only of utility when read with the ‘privilege type’ column and particularly the ‘privilege description’ column. In particular, I am concerned that ‘internal advice’ adds nothing to a LPP claim as it does not necessarily relate to legal advice. Accordingly, when assessing the LPP claims in respect of the documents in the Final Challenged List, it is the ‘privilege description’ which is of the most assistance to me.

As is explained by Mr Williams, the ‘privilege description’ code is a free-text code completed by the barristers or the Clayton Utz reviewers. By way of example, some of the descriptions are listed below:

(a) attachment to a wholly privileged email/host/email chain;

(b) attachment to a part privileged email chain and the attachment relates to the privileged part of the email chain;

(c) attachment to privileged email from Dr Kirsten Sowade (senior counsel) for the dominant purpose of providing legal advice;

(d) attachment to a part privileged email chain. The attachment relates to the privileged part of the email chain and is a draft document which has been sent to Judith Junk (counsel) for the dominant purpose of providing legal advice;

(e) email chain is part privileged. The fourth and seventh emails include communications for the dominant purpose of receiving and passing on legal advice;

In relation to some of the documents, I need to inspect them before being able to give a ruling. Those documents have been classified under the ‘Ruling’ column in the Annexure as “Withheld” and the explanation has been stated as “Need to inspect”. The Defendants are to provide to my Chambers copies of those documents. Where the documents have been redacted, then both redacted and unredacted copies will need to be provided.

Further work is required by the parties in respect of the documents in the Final Challenged List where the ‘summary position on LPP as at 22/12/22, updated on 9/1/23’ code bears the entry ‘document still withheld; accordingly objection pressed’. In these instances, the documents have been classified under the ‘Ruling’ column in the Annexure as “Withheld” and the explanation has been stated as “Reasons [144]”.

This further work is to comprise:

(a) within 3 business days of receiving these reasons, the Defendants are to produce the redacted copies of the documents in the Final Challenged List where the ‘summary position on LPP as at 22/12/22, updated on 9/1/23’ code bears the entry ‘document still withheld; accordingly objection pressed’;

(b) within 3 business days of receipt of the documents, the Plaintiff is to inform the Defendants if she continues to challenge the LPP claim in respect of any of those documents and if so, which documents;

(c) within 2 business days of step (b), the Plaintiff is to provide my Chambers and the Defendants with a list of those challenged documents (in the form of the Final Challenged List but containing only those documents and updated in respect of the explanation of the challenges); and

(d) within 2 business days of step (b), the Defendants should provide copies of the remaining challenged documents to my Chambers for my inspection, so that I can finalise this aspect of the Privilege Applications.

Conclusion

For the foregoing reasons and by reference to the Annexure, the Defendants will be required to produce to the Plaintiff:

(a) unredacted copies of documents where the LPP claim was rejected over the whole document in respect of a document said to be wholly privileged;

(b) unredacted copies of documents where the LPP claim was rejected over all redactions in a document said to be part privileged;

(c) redacted copies of documents where the LPP claim was rejected over a document said to be wholly privileged but where it was found that specific redactions could be made; and

(d) updated redacted copies of documents where the LPP claim was rejected over parts of a document said to be part privileged but some redactions on the basis of LPP were upheld.

The Defendants will need to provide my Chambers with the documents identified as requiring inspection, in accordance with paragraph 143 above.

The parties will need to carry out the further work required as identified in paragraphs 144 and 145 above.

When I set the timetable for the Defendants to re-review the Challenged Documents and supplement their evidence and for the Plaintiff to provide a list after that of which documents she continued to challenge, I did so after hearing from the parties on 25 October 2022 as to the time they needed to conduct the exercise. I set the timetable with the intention that the determination to be carried out by me on the papers would be completed before the Christmas break. That proved impossible given the addition of the Serrani Documents to the exercise and to the extensions subsequently agreed between the parties, together with the fact that the material provided to my Chambers came after I had already gone on leave.

On 2 March 2023, my Chambers received an email with attachments from Clayton Utz (‘Additional Material’). That email attached correspondence between the parties between 2 and 24 February 2023, along with a table prepared by Clayton Utz in respect of documents where the Plaintiff’s objection was that “Description does not match redactions in document produced”. It was said that the Defendants had amended the privilege descriptions in respect of 9 documents and amended redactions in respect of 6 documents, and withdrawn the LPP claim in respect of one document.

No leave was sought or obtained to file any further material and I have not taken the Additional Material into account in preparing these reasons. Apart from the issue of leave, these reasons had been written and were in the process of being proof-read at the time the Additional Material was received.

The parties are directed to confer to prepare proposed orders to give effect to this Ruling in respect of the matters referred to in paragraph 146 above. Further orders (including as to costs) will be made later, after I have dealt with the documents in respect of which a ruling has been withheld.

If the parties are agreed on the proposed orders, then these should be provided to my Chambers by no later than 16 March 2023. If they are unable to agree, then they should advise my Chambers of that by the same date and the proceeding will be listed for 17 March 2023 at 10.00am for the making of orders.

ANNEXURE

Production Bates	Ruling: privileged; not privileged; withheld	Brief explanation of ruling (reference to Reasons is to the particular paragraph/s of the Reasons)
BAU.001.002.1614	Privileged	Reasons [136]
BAU.001.002.1615	Privileged	Reasons [136]
BAU.001.002.1657	Privileged	Reasons [136]
BAU.001.002.1272	Privileged	Reasons [136]
BAU.001.002.1274	Privileged	Reasons [136]
BAU.001.001.6447	Privileged	Reasons, [136]
BAU.001.002.1363	Privileged	Reasons [136]; do not accept objection 2
BAG.001.002.7544	Privileged	Reasons [136], [137]
BAG.001.002.0582	Withheld	Need to inspect, Reasons [143]
BAG.001.002.0903	Privileged	Reasons [136]
BAG.001.002.7604	Privileged	Reasons [132]; do not accept objection 1
BAG.001.002.7636	Privileged	Reasons [136]
BAG.001.002.7656	Privileged	Reasons [136]
BAG.001.002.7710	Privileged	Reasons [136]; do not accept objection 2
BAG.001.002.2028	Privileged	Reasons [136]
BAG.001.002.2029	Privileged	Reasons [136]
BAG.001.002.7735	Privileged	Reasons [136]
BAG.001.002.7736	Privileged	Reasons [136]
BAG.001.002.7743	Privileged	Reasons [136]
BAG.001.002.7752	Privileged	Reasons [136]
BAG.001.002.7753	Privileged	Reasons [136]
BAG.001.002.7782	Privileged	Reasons [136]
BAG.001.002.7783	Privileged	Reasons [136]
BAG.001.002.7822	Privileged	Reasons [136]
BAG.001.002.7830	Privileged	Reasons [136]
BAG.001.002.2811	Privileged	Reasons [136]
BAG.001.002.2812	Privileged	Reasons [136]
BAG.001.002.2813	Privileged	Reasons [136]
BAG.001.002.2814	Privileged	Reasons [136]
BAG.001.002.2815	Privileged	Reasons [136]
BAG.001.002.2816	Privileged	Reasons [136]
BAU.001.002.1496	Privileged	Reasons [136]
BAU.001.002.1503	Privileged	Reasons [136]
BAU.001.002.1504	Privileged	Reasons [136]
BAU.001.002.1508	Privileged	Reasons [136]
BAU.001.002.1511	Privileged	Reasons [136]
BAU.001.002.1512	Privileged	Reasons [136]
BAU.001.002.1310	Privileged	Reasons [136]
BAU.001.002.1311	Privileged	Reasons [136]
BAG.001.002.8011	Privileged	Reasons [136]
BAG.001.002.8012	Privileged	Reasons [136]
BAG.001.003.4490	Privileged	Reasons [136]
BAG.001.003.4795	Privileged	Reasons [136]
BAG.001.003.8645	Privileged	Reasons [136]
BAG.001.003.8679	Privileged	Reasons [136]
BAG.001.003.8681	Privileged	Reasons [136]
BAG.001.003.8682	Privileged	Reasons [136]
BAG.001.003.8683	Privileged	Reasons [136]
BAG.001.003.8684	Privileged	Reasons [136]
BAG.001.003.8685	Privileged	Reasons [136]
BAG.001.003.8686	Privileged	Reasons [136]
BAG.001.003.8687	Privileged	Reasons [136]
BAG.001.003.8688	Privileged	Reasons [136]
BAG.001.003.8689	Privileged	Reasons [136]
BAG.001.003.8691	Privileged	Reasons [136]
BAG.001.003.8693	Privileged	Reasons [136]
BAG.001.003.8727	Privileged	Reasons [136]
BAG.001.003.8729	Privileged	Reasons [136]
BAG.001.003.8743	Privileged	Reasons [136]
BAG.001.003.8744	Privileged	Reasons [136]
BAG.001.003.8750	Privileged	Reasons [136]
BAG.001.003.8751	Privileged	Reasons [136]
BAG.001.003.8753	Privileged	Reasons [136]
BAG.001.003.8811	Privileged	Reasons [136]
BAG.001.003.8813	Privileged	Reasons [136]
BAG.001.003.8843	Privileged	Reasons [136]
BAG.001.003.8851	Privileged	Reasons [136]
BAG.001.003.8852	Privileged	Reasons [136]
BAG.001.003.8853	Privileged	Reasons [136]
BAG.001.003.8854	Privileged	Reasons [136]
BAG.001.003.8855	Privileged	Reasons [136]
BAG.001.003.8856	Privileged	Reasons [136]
BAG.001.003.8857	Privileged	Reasons [136]
BAG.001.003.8858	Privileged	Reasons [136]
BAG.001.003.8745	Privileged	Reasons [136]
BAG.001.003.8860	Privileged	Reasons [136]
BAG.001.003.8868	Privileged	Reasons [136]
BAG.001.003.8869	Privileged	Reasons [136]
BAG.001.003.8870	Privileged	Reasons [136]
BAG.001.003.8871	Privileged	Reasons [136]
BAG.001.003.8872	Privileged	Reasons [136]
BAG.001.003.8873	Privileged	Reasons [136]
BAG.001.003.8874	Privileged	Reasons [136]
BAG.001.003.8875	Privileged	Reasons [136]
BAG.001.003.8897	Privileged	Reasons [136]
BAG.001.003.8918	Privileged	Reasons [136]
BAG.001.003.8919	Privileged	Reasons [136]
[Withheld]	Not privileged	No evidence that dominant purpose was for legal advice or legal services for actual/anticipated litigation
[Withheld]	Not privileged	No evidence that dominant purpose was for legal advice or legal services for actual/anticipated litigation
[Withheld]	Not privileged	No evidence that dominant purpose was for legal advice or legal services for actual/anticipated litigation
[Withheld]	Not privileged	No evidence that dominant purpose was for legal advice or legal services for actual/anticipated litigation
BAG.001.003.8920	Privileged	Reasons [136]
BAG.001.003.8921	Privileged	Reasons [136]
BAG.001.003.8922	Privileged	Reasons [136]
BAG.001.003.8923	Privileged	Reasons [136]
BAG.001.003.8924	Privileged	Reasons [136]
BAG.001.003.8925	Privileged	Reasons [136]
BAG.001.003.8926	Privileged	Reasons [136]
BAG.001.003.8927	Privileged	Reasons [136]
BAG.001.003.8928	Privileged	Reasons [136]
BAG.001.003.8929	Privileged	Reasons [136]
BAG.001.003.8931	Privileged	Reasons [136]
BAG.001.003.8932	Privileged	Reasons [136]
BAG.001.003.8933	Privileged	Reasons [136]
BAG.001.003.8935	Privileged	Reasons [136]
BAG.001.003.8513	Privileged	Reasons [136]
BAG.001.002.7621	Privileged	Reasons [136]
BAG.001.002.7625	Privileged	Reasons [136]
BAG.001.002.7704	Privileged	Reasons [136]
BAG.001.002.7744	Privileged	Reasons [136]
BAG.001.002.2854	Privileged	Reasons [136]
BAG.001.002.2858	Privileged	Reasons [136]
BAG.001.002.2855	Privileged	Reasons [136]
BAG.001.002.2856	Privileged	Reasons [136]
BAG.001.002.2859	Privileged	Reasons [136]
BAG.001.002.2857	Privileged	Reasons [136]
BAG.001.003.8644	Privileged	Reasons [136]
BAG.001.003.8755	Privileged	Reasons [136]
BAG.001.003.8756	Privileged	Reasons [136]
BAG.001.003.8757	Privileged	Reasons [136]
BAG.001.003.8758	Privileged	Reasons [136]
BAG.001.003.8809	Privileged	Reasons [136]
BAG.001.003.8930	Privileged	Reasons [136]
BAG.001.003.8937	Privileged	Reasons [136]
BAG.001.003.8938	Privileged	Reasons [136]
BAG.001.002.0644	Withheld	Need to inspect, Reasons [143]
BAG.001.002.0803	Withheld	Need to inspect, Reasons [143]
BAG.001.002.0949	Privileged	Email 4 discloses substance of legal advice; Emails 6, 7, 9 meet dominant purpose test
BAG.001.002.1238	Privileged	Email 4 discloses substance of legal advice; Emails 6, 7, 9 meet dominant purpose test
BAG.001.002.1421	Withheld	Need to inspect, Reasons [143]
BAG.001.002.1423	Privileged	Email 4 discloses substance of legal advice; Emails 6, 7, 9 meet dominant purpose test
BAG.001.002.1532	Withheld	Need to inspect, Reasons [143]
BAG.001.002.1534	Withheld	Need to inspect, Reasons [143]
BAG.001.002.1553	Withheld	Need to inspect, Reasons [143]
BAG.001.002.1628	Withheld	Need to inspect, Reasons [143]
BAU.001.002.1613	Privileged	Objection not justified given the privilege description
BAG.001.002.3187	Withheld	Need to inspect, Reasons [143]
BAG.001.002.3290	Privileged	Reasons [137], [138]
BAU.001.001.5881	Privileged	Reasons [137], [138]
BAU.001.001.5885	Privileged	Reasons [137], [138]
BAG.001.002.6127	Privileged	Privilege description sufficient
BAU.001.001.6239	Privileged	Reasons [139]
BAU.001.001.6240	Privileged	Reasons [139]
BAG.001.002.7084	Privileged	Reasons [133], [137]
BAG.001.002.7085	Privileged	Reasons [138]
BAG.001.002.7536	Withheld	Need to inspect, Reasons [143]
BAG.001.002.7543	Withheld	Need to inspect, Reasons [143]
BAG.001.002.7572	Withheld	Need to inspect, Reasons [143]
BAG.001.002.7578	Not privileged	No evidence of requisite dominant purpose; amendment by lawyer (if it is a lawyer) insufficient description to ground privilege
BAG.001.002.7582	Not privileged	No evidence of requisite dominant purpose; amendment by lawyer (if it is a lawyer) insufficient description to ground privilege
BAG.001.002.7583	Privileged	Reasons [137]
BAG.001.002.7599	Privileged	Reasons [133], [137]
BAG.001.002.7614	Not privileged	No evidence of requisite dominant purpose; amendment by lawyer (if it is a lawyer) insufficient description to ground privilege
BAG.001.002.7671	Withheld	Need to inspect, Reasons [143]
BAG.001.003.8631	Privileged	Reasons [137]
BAG.001.002.7672	Privileged	Reasons [137]
BAG.001.002.7834	Not privileged	No evidence of requisite dominant purpose; amendment by lawyer insufficient description to ground privilege
BAG.001.002.1533	Not privileged	No evidence of requisite dominant purpose; amendment by lawyer insufficient description to ground privilege
BAG.001.002.8039	Not privileged	No evidence of requisite dominant purpose; amendment by lawyer (if it is a lawyer) insufficient description to ground privilege
BAG.001.002.7683	Privileged	Privilege description sufficient; Reasons [132]
BAU.001.001.5880	Privileged	Privilege description sufficient; Reasons [133]; objection also misplaced as privilege description does not refer to 'receive and/or pass on legal advice'
BAU.001.001.5884	Privileged	Privilege description sufficient
BAU.001.001.6268	Privileged	Privilege description sufficient
BAU.001.001.6366	Privileged	Privilege description sufficient
BAU.001.001.9681	Not privileged	LPP not made out as no reference to legal advice (Advice Limb is relied upon) let alone that being the dominant purpose
BAU.001.002.1510	Privileged	Privilege description sufficient
BAU.001.001.9273	Privileged	Privilege description sufficient; Reasons [134]
BAU.001.002.1433	Privileged	Privilege description sufficient; objection 1 also misplaced as privilege description does not refer to 'receive and/or pass on legal advice'
BAU.001.002.1581	Privileged	Privilege description sufficient; Reasons [133], [135]
BAU.001.002.1714	Privileged	Reasons [131], [137], [139]
BAG.001.003.4539	Privileged	Privilege description sufficient
BAG.001.003.6163	Privileged	Privilege description sufficient
BAG.001.003.8643	Privileged	Privilege description sufficient; Reasons [133]
BAG.001.003.6317	Withheld	Need to inspect, Reasons [143]
BAG.001.003.6320	Withheld	Need to inspect, Reasons [143]
BAG.001.003.6322	Withheld	Need to inspect, Reasons [143]
BAG.001.003.6324	Withheld	Need to inspect, Reasons [143]
BAG.001.003.6325	Withheld	Need to inspect, Reasons [143]
BAG.001.003.6327	Withheld	Need to inspect, Reasons [143]
BAG.001.003.6336	Privileged	Privilege description sufficient; Reasons [139]
BAG.001.003.6343	Privileged	Privilege description sufficient; Reasons [139]
BAG.001.003.6344	Privileged	Privilege description sufficient; Reasons [139]
BAG.001.003.6347	Privileged	Privilege description sufficient; Reasons [139]
BAG.001.003.8662	Privileged	Reasons [134], [136]
BAG.001.003.8663	Privileged	Reasons [134], [136]
BAG.001.003.8664	Privileged	Reasons [134], [136]
BAG.001.003.8665	Privileged	Reasons [134], [136]
BAG.001.003.8667	Privileged	Privilege description sufficient; Reasons [134], also appears to fit within Reasons [136]
BAG.001.003.8668	Privileged	Reasons [134], [136]
BAG.001.003.8669	Privileged	Reasons [134], [136]
BAG.001.003.8670	Privileged	Reasons [134], [136]
BAG.001.003.8671	Privileged	Reasons [134], [136]
BAG.001.003.8673	Privileged	Privilege description sufficient; objection 1 also misplaced as privilege description does not refer to 'receive and/or pass on legal advice'
BAG.001.003.8674	Privileged	Reasons [134], [136]
BAG.001.003.8675	Privileged	Reasons [134], [136]
BAG.001.003.8676	Privileged	Reasons [134], [136]
BAG.001.003.8677	Privileged	Reasons [134], [136]
BAG.001.003.6349	Privileged	Reasons [139]
BAG.001.003.6164	Privileged	Reasons [134]
BAG.001.003.6350	Privileged	Reasons [139]
BAG.001.003.6351	Privileged	Reasons [139]
BAG.001.003.6358	Privileged	Reasons [139]
BAG.001.003.6488	Privileged	Reasons [139]
BAG.001.003.6489	Privileged	Privilege description sufficient
BAG.001.003.8707	Privileged	Reasons [134]
BAG.001.003.7443	Withheld	Need to inspect, Reasons [143]
BAG.001.003.8214	Privileged	Reasons [137]
BAG.001.003.8220	Privileged	Reasons [137]
BAG.001.003.8226	Privileged	Reasons [137]
BAG.001.003.8247	Privileged	Reasons [137]
BAG.001.003.8253	Privileged	Reasons [137]
BAG.001.003.8324	Privileged	Reasons [137]
BAG.001.003.8407	Privileged	Reasons [137]
BAG.001.003.8410	Privileged	Reasons [137]
BAG.001.003.8512	Privileged	Privilege description sufficient
BAG.001.003.8520	Privileged	Privilege description sufficient
BAG.001.003.8728	Privileged	Reasons [137]
BAG.001.003.8605	Privileged	Privilege description sufficient; Reasons [137]
BAG.001.003.8739	Privileged	Reasons [136]
BAG.001.003.8640	Privileged	Privilege description sufficient; Reasons [137]
BAG.001.003.8741	Privileged	Reasons [136]; Accept objection 2 re second sentence of privilege description but that does not change result
BAG.001.003.8694	Privileged	Privilege description sufficient; Reasons [137]; objection 1 also misplaced as privilege description does not refer to 'receive and/or pass on legal advice'
BAG.001.003.7445	Privileged	Privilege description sufficient; Reasons [139]
BAG.001.003.8810	Not privileged	No reference to legal advice (Advice Limb relied on); lawyer 'providing comments' is insufficient to ground privilege
BAG.001.003.8812	Not privileged	No reference to legal advice (Advice Limb relied on); lawyer 'providing comments' is insufficient to ground privilege
BAG.001.003.8816	Privileged	Privilege description sufficient; Reasons [134]
BAG.001.003.8817	Privileged	Privilege description sufficient; Reasons [139]
BAG.001.003.8818	Privileged	Reasons [134], [136]
BAG.001.003.8819	Privileged	Privilege description sufficient; Reasons [132]
BAG.001.003.8824	Not privileged	Have reviewed metadata including document title and no such inference arises from it
BAG.001.003.8825	Privileged	Privilege description sufficient; Reasons [132]
BAG.001.003.8826	Privileged	Privilege description sufficient; Reasons [132], [134]
BAG.001.003.8832	Privileged	Reasons [136]
BAG.001.003.8833	Privileged	Reasons [136]
BAG.001.003.8730	Privileged	Privilege description sufficient
BAG.001.003.8835	Privileged	Reasons [136]
BAG.001.003.8321	Privileged	Privilege description sufficient; Reasons [140]
BAG.001.003.8917	Privileged	Privilege description sufficient; Reasons [140]
BAG.001.003.8834	Withheld	Need to inspect, Reasons [143]
BAG.001.003.8943	Not privileged	Have reviewed metadata including document title and no such inference arises from it
BAG.001.003.8944	Not privileged	Have reviewed metadata including document title and no such inference arises from it
BAG.001.002.7537	Privileged	Reasons [135], [140]
BAG.001.002.7538	Privileged	Reasons [135], [136]
BAG.001.002.7652	Privileged	Reasons [137], [139]
BAG.001.002.7703	Privileged	Reasons [137], [138], [139]
BAG.001.002.7749	Privileged	Reasons [136]
BAG.001.002.7750	Privileged	Reasons [136]
BAG.001.003.6405	Privileged	Reasons [139]
BAG.001.003.7382	Privileged	Reasons [139]
BAG.001.003.7384	Privileged	Reasons [139]
BAG.001.003.7386	Privileged	Reasons [139]
BAG.001.003.7388	Privileged	Reasons [139]
BAG.001.003.7466	Privileged	Reasons [137], [139]
BAG.001.003.7557	Privileged	Reasons [137]
BAG.001.003.7650	Privileged	Reasons [137]
BAG.001.003.7674	Privileged	Reasons [137]
BAG.001.003.7778	Privileged	Reasons [137]
BAG.001.003.7871	Privileged	Reasons [137]
BAG.001.003.8836	Privileged	Reasons [137]
BAG.001.003.8838	Privileged	Reasons [137]
BAG.001.003.8661	Privileged	Reasons [136], [140]
BAG.001.003.6193	Privileged	Privilege description sufficient; Reasons [140]
BAG.001.003.6348	Privileged	Privilege description sufficient; Reasons [140]
BAG.001.003.8808	Not privileged	Insufficient to ground privilege; no such assumption arises
BAG.001.003.8280	Privileged	Reasons [136]
BAG.001.003.8945	Not privileged	Lawyer providing or attaching comments insufficient to ground privilege
BAG.001.003.8946	Not privileged	Lawyer providing or attaching comments insufficient to ground privilege
BAG.001.003.8950	Not privileged	Seeking "review" from lawyer insufficient to ground privilege
BAG.001.003.8951	Not privileged	Seeking "review" from lawyer insufficient to ground privilege
BAG.001.003.8952	Not privileged	Seeking "review" from lawyer insufficient to ground privilege
BAG.001.003.8953	Not privileged	Seeking "review" from lawyer insufficient to ground privilege
P	Privileged	Privilege description sufficient; Reasons [139]
BAY-EDPA-1038792	Privileged	Privilege description sufficient; Reasons [138], [139]
BAY-EDPA-1038793	Privileged	Reasons [134], [136], [140]
BAY-EDPA-1021959	Privileged	Privilege description sufficient
BAY-EDPA-4066828	Privileged	Reasons [139]
BAY-JCCP-2477664	Privileged	Reasons [134], [140]
BAY-JCCP-2493535	Withheld	Reasons [144]
BAY-JCCP-2511052	Privileged	Privilege description sufficient; Reasons [136]
BAY-JCCP-3692319	Privileged	Privilege description sufficient
BAY-JCCP-3701280	Privileged	Privilege description sufficient; Reasons [132]
BAY-JCCP-6634565	Privileged	Reasons [134]
BAY-EDPA-1366540	Privileged	Privilege description sufficient; Reasons [133]
BAY-JCCP-7246753	Privileged	Privilege description sufficient; Reasons [133]
BAY-JCCP-2435461	Privileged	Privilege description sufficient; objection 2 not accepted due to Reasons [140]
BAY-EDPA-1412181	Privileged	Privilege description sufficient; Reasons [133]
BAY-EDPA-1432031	Privileged	Privilege description sufficient; Reasons [140]
BAY-JCCP-8055923	Not privileged	Privilege description insufficient to ground LPP
BAY-EDPA-1438723	Privileged	Privilege description sufficient; Reasons [137], [140]
BAY-EDPA-1443793	Privileged	Privilege description sufficient; Reasons [140]
BAY-EDPA-1447236	Not privileged	Privilege description insufficient to ground LPP
BAY-EDPA-1465072	Privileged	Reasons [139]
BAY-EDPA-1465073	Privileged	Reasons [137]
BAY-EDPA-5878808	Privileged	Reasons [140]
BAY-EDPA-4042520	Privileged	Reasons [139]
BAY-JCCP-5895899	Privileged	Reasons [140]
BAY-JCCP-5895935	Privileged	Reasons [137], [140]
BAY-JCCP-5895989	Privileged	Reasons [137], [140]
BAY-JCCP-5896068	Privileged	Reasons [140]
BAY-JCCP-5896912	Withheld	Reasons [144]
BAY-JCCP-6087345	Not privileged	"comments" and "amendments" insufficient to ground LPP
BAY-EDPA-1056582	Privileged	Reasons [140]
BAY-JCCP-3494136	Privileged	Privilege description sufficient
BAY-EDPA-1559082	Withheld	Reasons [144]
BAY-EDPA-1560912	Privileged	Privilege description sufficient
BAY-EDPA-1562730	Withheld	Reasons [144]
BAY-EDPA-1562809	Withheld	Reasons [144]
BAY-EDPA-1562843	Withheld	Reasons [144]
BAY-EDPA-1562877	Withheld	Reasons [144]
BAY-EDPA-1562910	Withheld	Reasons [144]
BAY-EDPA-1563059	Withheld	Reasons [144]
BAY-EDPA-1563066	Withheld	Reasons [144]
BAY-EDPA-1563078	Privileged	Privilege description sufficient; Reasons [138]
BAY-EDPA-1563098	Withheld	Reasons [144]
BAY-EDPA-1563102	Withheld	Reasons [144]
BAY-EDPA-1565658	Privileged	Reasons [131], [137], [139]
BAY-EDPA-1565688	Privileged	Reasons [131], [137], [139]
BAY-EDPA-1569701	Privileged	Reasons [134], [139]
BAY-EDPA-1578586	Not privileged	Privilege description insufficient as no mention of purpose
BAY-EDPA-1578656	Withheld	Reasons [144]
BAY-EDPA-1578667	Withheld	Reasons [144]
BAY-EDPA-1578728	Withheld	Reasons [144]
BAY-EDPA-1585594	Withheld	Reasons [144]
BAY-EDPA-1585601	Withheld	Reasons [144]
BAY-JCCP-3755257	Withheld	Reasons [144]
BAY-JCCP-6635027	Privileged	Reasons [139]
BAY-JCCP-3756931	Privileged	Privilege description sufficient; Reasons [132]
BAY-JCCP-3757294	Withheld	Reasons [144]
BAY-JCCP-6635435	Privileged	Privilege description sufficient; Reasons [140]
BAY-JCCP-3758429	Withheld	Reasons [144]
BAY-JCCP-6635659	Not privileged	Privilege description insufficient to ground LPP as it does not refer to legal advice, just to advice. It being provided by Legal does not make the LPP claim good
BAY-JCCP-3763009	Privileged	Privilege description sufficient
BAY-JCCP-3786808	Withheld	Reasons [144]
BAY-JCCP-6642974	Privileged	Privilege description sufficient; Reasons [140]
BAY-JCCP-7301775	Privileged	Privilege description sufficient; Reasons [140]
BAY-JCCP-6401582	Withheld	Reasons [144]
BAY-JCCP-6401591	Privileged	Privilege description sufficient
BAY-EDPA-6115814	Withheld	Need to inspect, Reasons [143]
BAY-EDPA-5862881	Privileged	Privilege description sufficient; Reasons [138], [139]
BAY-JCCP-7810694	Privileged	Privilege description sufficient; Reasons [137], [138]

SCHEDULE OF PARTIES

S ECI 2019 02916
BETWEEN:
PATRICE SARAH TURNER	Plaintiff
- v -
BAYER AUSTRALIA LTD (ACN 000 138 714)	First Defendant
BAYER AKTIENGESELLSCHAFT	Second Defendant
BAYER HEALTHCARE LLC	Third Defendant
BAYER ESSURE INC	Fourth Defendant
GYTECH PTY LTD (ACN 076 599 570)	Fifth Defendant
AUSTRALASIAN MEDICAL & SCIENTIFIC LTD (ARBN 051 991 372)	Sixth Defendant

[2023] VSC 104

10 March 2023