June 26, 2006

Relevance and Discovery in Copyright Proceedings

Posted in copyright, discovery, judgments and transcripts, procedure at 1:39 am by thelawthoughts

Greenwood J on 9 June, 2006 handed down a short but interesting judgement on the extent to which discovery of relevant materials must be made in copyright proceedings. (See Norm Engineering Pty. Ltd. -v- Digga Australia Pty. Ltd. (No.2) [2006] FCA 732)

Basically, emails were sent describing the nature of the Applicant's buckets, as well as a short discussion about how the Respondent's were better because they had taken the features of two of the market leaders and made their own. They didn't want to discover this document (hmmm, wonder why) and so said it was not relevant.

The relevance argument was based on the fact that the Court would determine objective similarity when deciding whether copyright had been infringed.

Greenwood J held it was an essential part of determining objective similarity that emails discussing the early conceptions of the product were examined. He held the documents were relevant because they detailed how the product came into existence, which can be taken into account when determining objective similarity.

The Respondent also complained they had a dodgy IT system, which could not search emails properly, and they had 711,000 emails they might need to read.

Greenwood J, rightly so, was 'essentially unsympathetic'.

The case is set down for trial.

The Court

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.