During a dispute, it is vital that the parties are aware of the relevant facts from an early stage. If the parties are “in the dark”, they are not in a proper position to prepare for trial or assess their prospects of success and the merits of a possible settlement. Information relevant to the dispute may be subject to confidentiality obligations owed to one of the parties to the proceeding or a non-party. When lawyers interview potential witnesses, they should be conscious that lawyers do not have the power to override confidentiality obligations owed by a potential witness simply because it would allow the lawyer to better advise their client or prepare for trial. Only specific court processes, such as discovery and subpoenas, can override confidentiality obligations. This article will first consider the risks to lawyers of not observing confidentiality obligations when interviewing potential witnesses. Secondly, it will consider the court processes that might be used to override confidentiality. Thirdly, it will consider how the Civil Procedure Act 2010 (Vic) may apply to these issues. Fourthly, it will consider a way in which a potential witness who holds confidential information may be approached.
(i) The risks of interviewing witnesses who hold confidential information
It is well known that a party must disclose relevant information through the discovery process even if that information is confidential.; Similarly, a witness who has been subpoenaed to give evidence before a court cannot refuse to answer a relevant question simply because it requires them to disclose confidential information.; In this way, the courts have the power to override confidentiality to further the ends of justice. However, lawyers do not have such power. When a lawyer is interviewing a potential witness, the witness should adhere to their confidentiality obligations and a lawyer should not lead them to do otherwise. In AG Australia Holdings Ltd v Burton & Another (AG Australia), Campbell J in the Supreme Court of New South Wales addressed this issue. In that case, the lawyers responsible for a representative action against AG Australia Holdings Ltd (AG) prepared a draft witness statement for a former employee of AG. AG claimed that this was done in breach of a confidentiality undertaking contained in the terms of employment of the former employee. AG sought to prevent the lawyers from using the information the former employee provided. Campbell J concluded that the lawyers should not have obtained the confidential information from the former employee and that they had committed the tort of inducing a breach of contract. The lawyers were restrained from using the confidential information they had obtained. Campbell J said that, “Solicitors sitting in their offices do not have the power to relieve people from, or override, contractual obligations of confidence, merely because they wish to obtain information to use in litigation.”
(ii) Court processes that may be used to obtain confidential information ahead of trial
Confidential information that is relevant to the issues in dispute may be obtained ahead of trial through a number of court processes. In relation to documentary evidence, subpoenas issued under order 42A of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) (VSC Rules) may allow a party to obtain relevant confidential information early in the lifespan of a proceeding. In this regard, Gillard J in Pico Holdings Inc v Voss & Anor  VSC 269 observed that subpoenas issued under the predecessor of order 42A can "apprise parties of their strengths and weaknesses at an early stage so that steps can be taken to compromise a proceeding before costs mount".; In itself, confidentiality does not allow a subpoena to be set aside, but it is a factor relevant to whether the subpoena is oppressive.; Confidentiality may also be relevant to whether inspection of documents tendered under a subpoena is permitted.; However, if a subpoenaed document contains confidential information that is clearly relevant to the issues in dispute, it is likely to be available for inspection.
In relation to non-documentary evidence, a person may be examined by deposition ahead of trial under order 41 of the VSC Rules, but this rarely occurs.; It is often reserved for cases where the person may not be available at trial due to illness or absence. In practice, therefore, a party is unlikely to be able to use court processes to obtain non-documentary information ahead of trial, even though this information could assist an early resolution and will ultimately be available at trial when a particular witness is called to give evidence. This may have undesirable consequences. Consider the following situation. A potential witness is willing to speak with the lawyers of Party A. The potential witness is likely to have information that will assist the early resolution of the dispute, but that information is subject to a confidentiality obligation owed to Party B. Party B could adopt the obstructive attitude that disclosure of that information must wait until trial when the potential witness is called to give evidence. It is unlikely that the potential witness will give oral evidence ahead of trial through a deposition. The end result is that information, which ultimately will be released at trial, will be withheld from any mediation or settlement talks. This may lessen the chances of an early resolution and is not an entirely desirable outcome.;
(iii) The effect of the Civil Procedure Act 2010
Section 10 of the Civil Procedure Act 2010 (Vic) (Act) imposes "overarching obligations" on the parties to a civil proceeding and their lawyers, amongst other persons. Two overarching obligations are significant to the present situation. First, a party to a proceeding and their lawyers must cooperate with the other parties to the proceeding and the court in connection with the conduct of the proceeding (Obligation to Cooperate).; Secondly, for the purpose of avoiding undue delay and expense, a party to a proceeding and their lawyers must not take any step in the proceeding unless they reasonably believe that the step is necessary to facilitate the resolution or determination of the proceeding (Obligation to Facilitate Resolution).
The Obligation to Cooperate may prevent a party from obstructively insisting upon a confidentiality obligation owed to them, as this could arguably be a failure to cooperate. This view is supported by the fact that the aim of the Obligation to Cooperate is to prevent "obstructive conduct in the course of proceedings".;It is worth noting that the Obligation to Cooperate, like all of the overarching obligation, does not apply to a lay witness who is not a party.; For this reason, a lay witness who is not a party is free not to assist the lawyers of the parties.
The Obligation to Facilitate Resolution may also prevent a party from obstructively insisting upon a confidentiality obligation owed to them. The explanatory memorandum of the Act gives, as an example of conduct prohibited by this obligation, bringing interlocutory proceedings for tactical reasons or to oppress another party, rather than focusing on the real issues in dispute.; If a party threatened an application to prevent disclosure by a potential witness of confidential information that will ultimately be revealed at trial and could be useful to the early resolution of the dispute, it may arguably be a breach of the obligation.
There are two difficulties with the view that the Obligation to Cooperate and Obligation to Facilitate Resolution prevent a party from insisting on a confidentiality obligation to prevent the interviewing of a potential witness. First, if information is disclosed by a potential witness, there is no express requirement that the information only be used for the purposes of the proceeding. The solution may be for the lawyer interviewing the witness to offer an undertaking to the party owed the confidentiality obligation to only use the information for the purpose of the proceeding and to otherwise keep it confidential. Secondly, if the party waives the confidentiality obligation, the potential witness may disclose confidential information which is not relevant to the issues in dispute. This dilemma could also be addressed by an undertaking to the party owed the confidentiality obligation that the lawyer only question the potential witness about matters relevant to the issues in dispute. These undertaking are perhaps unnecessary given that it can almost be assumed that a lawyer will not interview a potential witness in relation to irrelevant matters and not use the information for a purpose other than the proceeding.
It is important to note that the Obligation to Cooperate and Obligation to Facilitate Resolution do not specifically create disclosure obligations, and it would be incorrect to regard them as doing so. However, in a situation where (i) the confidential information may assist the early resolution of the dispute and (ii) all concerns regarding further disclosure are addressed through an appropriate undertaking, there is unlikely to be a legitimate reason for demanding that the potential witness not speak with the opposing side. In those circumstances, the party is arguably enforcing its confidentiality rights simply to allow information asymmetries to continue and hinder the resolution of the dispute.
(iv) A possible way to approach witnesses who hold confidential information
So how should a lawyer deal with the issue of confidentiality when interviewing potential witnesses? It is helpful to consider who the potential witness owes the confidentiality obligation to. There are three categories: (i) the obligation is owed to the lawyer’s client; (ii) the obligation is owed to another party to the proceeding; and (iii) the obligation is owed to a person who is not a party to the proceeding. For category (i), the matter is quite simple: the client can simply choose to waive the obligation. For categories (ii) and (iii), matters are more complex.
Category (ii) could arise when approaching former employees of a party to the proceeding (as happened in AG Australia) or consultants or contractors of a party to the proceeding. For category (ii), if the lawyer considers that interviewing the witness could infringe a confidentiality obligation, the lawyer should contact the party's lawyer. How should the party's lawyer respond? If the party's lawyer concludes that there is a valid confidentiality obligation, they should advise their client on whether demanding that the witness not be interviewed on the basis of confidentiality is a breach of an overarching obligation under the Act. If there could be a breach of an overarching obligation, the party should consider allowing the disclosure, subject to an undertaking that only information relevant to the dispute be sought and that this information may only be used for the purpose of the proceeding.
For category (ii), it is important to note that there are restrictions imposed by rule 18.4 of the Professional Conduct and Practice Rules 2005 on a lawyer contacting an opposing party when the opposing party has legal representation.; If the potential witness is a current employee, current director or in a similar position to an opposing party, the lawyer should not contact them without the express permission of the opposing side’s lawyers.
For category (iii), the situation is the same as category (ii), except that the Act is of no assistance as the overarching obligations do not apply to a person who is not a party to the proceeding. In that case, the non-party may insist upon their confidentiality rights.
Lawyers should be aware of confidentiality obligations when interviewing a potential witness. A lawyer cannot override a confidentiality obligation and should not lead a potential witness to breach such an obligation. However, the overarching obligations of the Act may prevent a party to a proceeding, who is owed a confidentiality obligation, from using that obligation to prevent the potential witness from being interviewed. If the confidentiality obligation is owed to someone who is not a party to the proceeding, the Act does not assist. If there is a confidentiality issue, the lawyers should adopt a cooperative attitude which may involve relevant information being disclosed subject to an undertaking that it only be used for the conduct of the proceeding. This would hopefully be part of a broader cooperative approach, which the lawyers of all parties have adopted for the dispute.
This article was originally published in (2013) 87 (8) Law Institute Journal 58.
Mobil Oil Australia Ltd & Anor v Guina Developments Pty Ltd & Anor  2 VR 34 at 38. Confidentiality regimes can be put in place according to which only the legal advisors and nominated experts may access certain confidential discovered information and not the actual client (Mobil at 40).Back to article
AG Australia Holdings Ltd v Burton & Another (2002) 58 NSWLR 464 at  following D v National Society for the Prevention of Cruelty to Children  AC 171 at 218, 230 and 237.Back to article
 (2002) 58 NSWLR 464.Back to article
 Ibid at .Back to article
  VSC 269 at  (references omitted).Back to article
 See Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350 at 380-381, Mandic v Phillis (2005) 88 ALD 676 at , Dorajay Pty Ltd v Aristocrat Leisure Ltd  FCA 588 at , Spatialinfo Pty Ltd v Telstra Corp Ltd  FCA 455 at -, Re ACI International Ltd (1986) 11 ACLR 240 at 243. Back to article
 See National Employers' Mutual General Association Ltd v Waind and Hill  1 NSWLR 372 at 385-386.Back to article
A person may also be subpoenaed under rule 42.03(6) to give evidence prior to trial, but this is rare. Back to article
Arguments along these lines were made in AG Australia and rejected (see -).Back to article
 Section 20 of the Act.Back to article
 Section 19 of the Act.Back to article
 See clause 20 of the Explanatory Memorandum of the Civil Procedure Bill 2010.Back to article
Section 10. Back to article
 See clause 19 of the Explanatory Memorandum of the Civil Procedure Bill 2010.Back to article
 A similar restriction applies in a non-litigious context due to rule 25.Back to article