The recent copyright case of Hamlan Homes Pty Ltd trading as Hamlan Homes and Geelong Homes v Levonix Homes Pty Ltd (No 3) [2025] FedCFamC2G 565 (Hamlan v Levonix)involved a dispute between Hamlan Homes Pty Ltd 006 313 015 (Hamlan) and Levonix Homes Pty Ltd ACN 168 777 384 (Levonix) that provides insight into preservation of “meta data” in civil litigation.
Hamlan v Levonix involved two (2) key issues, including:
- the request for reproduction of unredacted documents; and
- the request for the respondents to re-produce documents in their “native format”.
The first issue of requesting reproduction of unredacted documentswas considered by Manousaridis J and it was held that the documents were not directly relevant to any of the issues in dispute, so they did not have to be disclosed. That left only the second issue of re-producing documents in their native format.
Re-producing documents in Native format
Levonix engaged an e-discovery provider, NuixDiscover (formerly Ringtail) (Nuix), to process and convert the original documents into stamped PDFs. The stamped documents were listed in a table and provided in PDF format containing only basic metadata, such as title, document type, and attachments.[1]
Hamlan’s Solicitors subsequently requested the document list in a native Excel format, along with load files that would allow them to upload the documents to their own Nuix e-discovery software.[2]
Once this was provided to Hamlan’s solicitors, on loading the documents onto their own Nuix software, several issues were uncovered including:[3]
- redactions without clear justification;
- incomplete sets of documents;
- incomplete document families;
- documents that were non-searchable; and
- a lack of host identifiers to group document families together in the database.
Following this, Hamlan’s Solicitors made another request, this time that all documents be reproduced in their native format, including all metadata.[4] Counsel for Levonix argued that this would be unreasonable and create an administrative burden.[5]
Court’s ruling and reasoning
The argument by Levonix’ counsel was rejected by Manousaridis J, who ordered the documents to be reproduced in their “native format”.
In making the decision, Manousaridis J considered the definition of a “document” and the nature of electronically stored information. It was noted that meta data is recognised as an integral part of a “document“, meaning that the metadata is just as discoverable as the document itself. Manousaridis J concluded that producing a native file would be the most effective way to produce the its corresponding metadata.
Additionally, Manousaridis J distinguished between a “Native Format Electronic Document” and a “Derivative Electronic Document”, with the derivative format in this case referring to the converted stamped PDFs. Manousaridis J flagged that converting files into a derivative format often results in the loss of important information embedded in the native document, such as metadata, comments, and changes in a document.
Notes about how the PDF conversion process removes meta data
When native format documents are converted to PDFs, key meta data is stripped or lost, including:
- application meta data (author, creation/modification dates, comments, tracked changes);
- email metadata (headers, send/receive times, folder paths, message IDs);
- file system metadata (original file paths, timestamps, source location);
- document relationships (email and attachments) and parent-child links; and
- searchability (if documents are rendered as image-based PDFs without OCR).
As a result, care needs to be taken when discovering PDFs because they can be incomplete representations and not contain the required meta data.
Implications of Hamlan v Levonix
The decision in Hamlan v Levonix is authority for the proposition that parties to legal proceedings must produce all documents in discovery in Federal Court proceedings in their native format. This decision whilst nothing knew, reinforces the importance of preserving and providing electronically stored information in a way that maintains its’ integrity, including all embedded meta data.
Links and further references
Legislation
Acts Interpretation Act 1901 (Cth) s 2B
Federal Circuit and Family Court of Australia (Division 2) (General Federal Rules) 2021 (Cth) rr 14.02, 14.04
Federal Court Rules 2011 (Cth) r 20.14
Cases
Further information about discovery in legal proceedings
If you need advice on providing discovery in legal proceedings so as preserve meta data please contact us for a confidential and obligation free and discussion:
Malcolm Burrows B.Bus.,MBA.,LL.B.,LL.M.,MQLS.
Legal Practice Director
T: +61 7 3221 0013 (preferred)
M: +61 419 726 535
E: mburrows@dundaslawyers.com.au
Disclaimer
This article contains general commentary only. You should not rely on the commentary as legal advice. Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances
[1] Hamlan v Levonix [No 3] FedCFamC2G 565at [27]-[30].
[2] Hamlan v Levonix [No 3] FedCFamC2G 565at [32].
[3] Hamlan v Levonix [No 3] FedCFamC2G 565at [34].
[4] Hamlan v Levonix [No 3] FedCFamC2G 565at [41].
[5] Hamlan v Levonix [No 3] FedCFamC2G 565at [42].
Related insights about civil litigation
-
Point in time valuation and minority shareholder oppression
Shareholder oppression, or minority shareholder oppression, is generally thought to occur when the majority shareholders misuse their power to oppress or control the minority.
-
Cross-border licensing – Maxim Media Inc. v Nuclear Enterprises
The Federal Court decision in Maxim Media Inc. v Nuclear Enterprises Pty Ltd [2024] FCA 1443 involved an interlocutory application seeking injunctive relief by Maxim Media Inc. and Maxim Inc. (together, Maxim) (Applicants) for alleged breaches of sections 18 and 29 of the Competition and Consumer Act 2010 (Cth), passing off and infringement of a…
-
Tortious contract interference – injunctive relief
The wrongful or “tortious” interference with a contract occurs when a third party intentionally causes a contracting party to commit a breach of contract. The third party will be liable if they intentionally induced or disrupted a party’s ability to perform the terms of a binding contract. Remedies for tortious interference are available to ensure…
-
Misuse of confidential information within source code
In Australia, computer code can amount to confidential information as well as being subject to copyright protection. In some cases the two things overlap as was the case in decision of the Court in Optus Networks Pty Ltd v Telstra Corporation Ltd (2010) 265 ALR 281; [2010] FCAFC 21.
-
Federal Court guidelines for e-discovery and metadata
Electronic discovery in the Federal Court of Australia (FCA) is nothing new. From July 2014, the FCA began implementing the Court’s electronic court file (ECF) across its Australian registries. This enabled the Court to embrace the use of technology in proceedings, including the use of electronic discovery, eLodgement, eTrials, eCourtroom, and video conferences.
-
Software developer obtains Court order – names behind IP addresses
Justice Burley of the Federal Court of Australia in the case of Siemens Industry Software Inc v Telstra Corporation Limited [2020] FCA 901 ordered that Telstra, within fourteen (14) days, provide to Siemens all documents in its control relating to the identity of certain Telstra Account holders. Those account holders were suspected by Siemens of…
-
Skincare brand Biologi breached the ACL – ordered to publish 5 corrective notices
In a recent decision of the Federal Court in Native Extracts Pty Ltd v Plant Extracts Pty Ltd [2023] FCA 1265 Downes J issued an initial judgement and made orders for declaratory relief and the publication of eight (8) corrective notices by Plant Extracts Pty Ltd ACN 613 551 349 (Plant Extracts) and skincare brand…
-
“User principle” damages in copyright breach cases
The usual position in intellectual property infringement matters is that the successful applicant can elect between an account of profits or damages. However, what if the applicant has not suffered any direct loss as a result of the actions of the respondent that is held to have infringed its copyright?
-
Is a proposed settlement fair and reasonable in the Federal Court?
Class action lawsuits commonly resolve in a settlement between the members of a class and the respondents to a claim. However, there are strict requirements to proposed settlements, including that they are ‘fair and reasonable’, which will be subject to judicial oversight.
