Using documents received during discovery for another purpose

As a general rule, documents which are received during discovery phase of civil litigation (also known as disclosure in some Courts) cannot be used as evidence in another proceeding.  This is known as the “Harman undertaking”, named after the case where this this precedent was set.[1]

Background of Harman v Secretary of State for the Home Department [1983] 1 AC 280 (Harman)

Ms Harman, a legal officer of the National Council for Civil Liberties (NCCL), was acting as a solicitor for the plaintiff in an action against the Home Office.  During discovery, the Home Office wrote to Ms Harman stating that they wanted the documents which they disclosed to be used only in relation to the proceeding and not for any other purpose.  Ms Harman wrote back confirming that the documents would not be used outside of the proceeding.[2]

Following this correspondence, the Home Office was ordered to disclose six (6) confidential documents.  Ms Harman later gave a journalist access to the documents that were read out during the hearing, including those marked as being confidential, for the purpose of writing a newspaper article which criticised the Home Office’s ministers and civil servants.  Following the article’s release, the Home Officer applied for an order against Ms Harman for contempt.[3]

At first instance, Ms Harman was held to be in contempt of Court, but no penalty was enforced as “she had acted in good faith”.  Both the Court of Appeal and the House of Lords dismissed Ms Harman’s appeal.[4]

The House of Lords provided the following comments when dismissing Ms Harman’s appeal:

  • A document which is read out in open court, whether admitted in evidence or not, does not end the implied undertaking to use the document only for the purpose of the proceeding as it is unlikely the entire document was read out word-for-word and the person who receives the documents has a special advantage over the public;[5] and
  • Discovery:

“should not be allowed to place upon the litigant any harsher or more oppressive burden than is strictly required for the purpose of securing that justice is done.”[6]

Use when same parties involved in different proceedings

It is important to note that the Harman undertaking continues to apply even when the same parties are involved in multiple proceedings.

Australian Securities & Investments Commission v Marshall Bell Hawkins Limited [2003] FCA 833 (ASIC v Marshall) was the second proceeding between the same two (2) parties.  The first proceeding was the result of an investigation which the Australian Securities & Investments Commission (ASIC) carried out against Marshall Bell Hawkins Limited (Hawkins) which included disclosure of documents which ASIC had received from the Australian Federal Police.[7]

Despite the fact that the parties were the same, the Court agreed with ASIC’s understanding that they could not use the disclosed documents to carry out an inquiry relating to the revocation of a licence as this was not the same purpose for which the documents were originally disclosed, which was to investigate or prosecute an offence.[8]  As a result, whereby ASIC sought leave of the Court to use the disclosed documents for an ulterior purpose.[9]

Exceptions to the Harman undertaking

There are two (2) notable exceptions to the Harman undertaking as follows

  • the Court grants leave to release a party from the undertaking;[10] or
  • the information has been read in open Court, in which case the exception applies only to the information that has been read.[11]

A number of cases cited in ASIC v Marshall discussed when a Court should release a party from the undertaking, with the consensus being that special circumstances are to be established.  A special circumstance will exist where

“there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present”.[12]

The party seeking release needs to:

  • specify the documents which they seek release from;
  • specify the purpose for the release; and
  • satisfy the Court that the special circumstances justify the release.[13]

Merkel J noted that the party seeking leave needed to provide the specifics because the undertaking should only be to the extent necessary for the interests of the administration of justice or public interest.[14]  In ASIC v Marshall, ASIC did not specify the documents they sought release from as they claimed they did not want to waste taxpayer money trawling through boxes to determine which documents they required before knowing if the Court would release them.[15]  As they did not specify the documents, the Court could not determine whether their release would provide ASIC with any evidence additional to what could already be used, considering that the affidavits and subsequent reports relied on in the original hearing.[16]

The Court held that, while there were special circumstances that would warrant release of some of the disclosed documents, ASIC had not sufficiently specified which documents were required for the ulterior purpose.[17]

Takeaways

If a document has been disclosed during the discovery phase of civil proceedings, it will be subject to the Harman undertaking and without leave of the Court it will generally not be able to be used in another proceeding.  The document cannot be used in any other proceedings, even if the parties are the same.  If the document is read in open court, only that part that has been read will no longer be subject to the undertaking.

Links and further references

Related articles

Preliminary discovery in the Federal Court

Categories of discovery – Federal Court

Discovery in the Federal Court of Australia

Subpoenas to produce documents – Federal Court

Cases

Australian Securities & Investments Commission v Marshall Bell Hawkins Limited [2003] FCA 833

Harman v Secretary of State for the Home Department [1983] 1 AC 280

Springfield Nominees Pty Limited v Bridgelands Securities Limited (1992) 38 FCR 217

Further information

If you need advice on using documents discovered in previous proceedings contact us for a confidential and obligation free discussion:

Malcolm Burrows

 

Malcolm Burrows B.Bus.,MBA.,LL.B.,LL.M.,MQLS.
Legal Practice Director
Telephone: (07) 3221 0013 (Preferred)
Mobile: 0419 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] Harman v Secretary of State for the Home Department [1983] 1 AC 280

[2] Harman, at 280.

[3] Ibid.

[4] Ibid.

[5] Ibid, at 305.

[6] Ibid, at 308.

[7] ASIC v Marshall, at [4]-[5].

[8] Ibid, at [6]-[7].

[9] Ibid, at [5].

[10] ASIC v Marshall, at [8]-[12].

[11] Harman, at 305.

[12] Springfield Nominees Pty Limited v Bridgelands Securities Limited (1992) 38 FCR 217, at 225.

[13] ASIC v Marshall, at [8]-[12].

[14] Ibid, at [13].

[15] Ibid, at [19].

[16] Ibid, at [22].

[17] Ibid, at [25].

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