June 14, 2006

Discovery Undertakings

Posted in judgments and transcripts, procedure at 7:46 am by thelawthoughts

As I have had drilled in to me this semester, when documents are discovered, the party discovering gives an implied undertaking that they will not make the contents of the document public.

Can a party to litigation give discovered documents to litigation funders? Yes, they can, according to Finkelstein J in Cadence Asset Management P/L v Concept Sports Ltd [2006] FCA 711, handed down on 2 June, 2006.

The applicant asked the court for permission to pass discovered documents to what might be considered a party that was a 'stranger to the action'. Not in this case, where litigation funders have a sufficient interest in the case to be made privy to discovered documents.

I imagine this is an issue of increasing importance, given the presence of litigation funders on the ASX. 


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