Secrets & subpoenas: protecting sensitive documents and confidential information

The categories and types of documents that you now need to give to the Court can be quite overwhelming. The usual suspects include strategy papers outlining executive decisions and future direction, financial records that disclose your company's operations, senior leadership's handwritten notes taken during meetings, and emails between upper management that divulge significant commercial matters. Clearly, these are not the types of documents that you want anyone taking a look at, especially your competitors.

To make things worse, you weren't even expecting a subpoena because your company isn't a party to any Court proceedings. But the subpoena commands you to start turning over documents so that other people – who you may or may not know – can start sifting through them. At this stage, it's anyone's guess whether the documents are ultimately used at trial and published in a judgment (available for anyone to see on the Court's public website).

Despite the documents containing confidential information, the Courts usually don't consider confidentiality alone to be enough to mount a successful objection to a subpoena.

As you are now left to navigate the legal minefield of complying with the subpoena while safeguarding your organisation's interests, we explore the key issues to consider.

(Almost) automatic protection of confidentiality: the Harman undertaking

First, the subpoenaed documents will automatically be protected by what's known as a Harman undertaking. This is a legal obligation that the parties to the proceedings give to the Court. In accordance with this undertaking, any party who accesses and inspects the subpoenaed documents, including their lawyers, witnesses, consultants or other authorised individuals, will be prohibited from using the documents or information from them for any purpose unrelated to the Court proceedings.

There are exceptions, however, which mean that this does not provide complete and absolute protection. For example, the Court may grant permission for some or all of the documents to be used for purposes outside the scope of the legal proceedings. Also, the Harman undertaking will cease to apply over any information or documents that are admitted into evidence during a hearing or trial. This means that your organisation will still be at risk of having its documents referred to in open Court or published in a judgment.

While the Harman undertaking can ease some concerns about maintaining confidentiality, it has its limitations. Let's take a look at some of the other options that may be available.

Creating your own confidentiality regime

Although the Court will typically consider the Harman undertaking to be sufficient in most circumstances, it clearly loses its teeth if the documents are exposed to examination by a trade rival or competitor. After all, once disclosed, the information in those documents cannot simply be forgotten or unseen by the trade rival.

In cases like these, setting up a confidentiality regime may offer a practical solution. Confidentiality regimes are not one-size-fits-all and can be customised and tailored to fit your specific circumstance. Additionally, confidentiality regimes are open to be altered and changed as the Court case progresses.

Some of the features a confidentiality regime may have include:

• restricting access to the documents only to specified persons (for example, the legal advisors to the parties and their expert witnesses)

• prohibiting the parties themselves from accessing the documents, or only allowing their in-house counsel to review the documents

• requiring the persons who access the documents to give a written undertaking promising to keep the documents and information confidential, and to ensure there is no unauthorised disclosure

• allowing the recipient of the subpoena to redact or mask confidential information that is irrelevant to the legal issues in the case

A confidentiality regime can be negotiated with the other parties and, with their consent, implemented through a Court order. If negotiations fail, an application can be made to the Court to impose one.

Suppression and non-publication orders

In certain situations, it may be possible to seek suppression and non-publication orders over particular information and documents that are ultimately admitted into evidence. However, bear in mind that these types of orders are not lightly made. Our legal system is based on the fundamental principle of open justice, and legal proceedings are required to be conducted in public to allow scrutiny. This ensures transparency and accountability.  Because suppression orders and non-publication orders cut down on open justice, the Court will need to be satisfied that there is a compelling reason to depart from this principle.

For a subpoena issued by a superior court, an application for suppression and non-publication orders may be granted under its inherent jurisdiction, and for other types of courts, an application may be granted under their incidental and implied powers. An application may be granted as long as the orders are necessary for the proper administration of justice, but only to the extent required. Applications may also be made under the various Commonwealth, State and Territory statutes. While there is no uniform national legislation in this area, in general, the legal principles for granting these orders are similar across jurisdictions.

For example, consider a trade secret that is spelled out in a subpoenaed document that is likely to be relied on in Court. Public disclosure of the trade secret could potentially sound in significant commercial harm. This may be regarded as prejudicial to the administration of justice if the trade secret itself has only trivial relevance or is entirely irrelevant to the legal issues in the case or understanding the Court's decision. The prejudice arises because, among other factors, the fear of disclosure may discourage others from approaching the Court to protect their rights if it means that they lose their commercial secrets to their competitors. In that instance, suppression and non-publication orders may be necessary.

Closed hearings

Another type of order – which again is counter to the principle of open justice – is one that requires the entire hearing or part of it to be closed to the public. These are known as in camera orders. With these types of orders, attendance is restricted to specified individuals. As with suppression and non-publication orders, in camera orders cut down on the principle of open justice, and are generally only made when necessary for the proper administration of justice. For the same reasons noted earlier, the risk of disclosure of trade secrets may justify the making of an in camera order.

Crafting your strategic response

It's important to act quickly when served with a subpoena, as they impose tight deadlines and require significant effort to gather the relevant documents. Each subpoena and case is unique, and the strategy for your response will depend on factors such as:

• the type of documents being subpoenaed

• the nature of information they contain

• the Court issuing the subpoena

• the identity of the parties involved

• the legal issues at play

The best defence against the risks posed by subpoenas however is preparation. Consider implementing a robust document management and confidentiality strategy in good time before a subpoena is served. In our experience, that preparation includes:

• evaluating your readiness to respond to subpoenas

• identifying categories of sensitive documents

• auditing your document management strategy regularly

• ensuring your key personnel are trained to respond effectively by seeking suitable arrangements as to redactions, confidentiality regimes or suppression and non-publication orders

Feel free to contact us to discuss how we can help safeguard your organisation's sensitive information and ensure you're prepared for any eventuality.