NAK Australia Pty Ltd v Starkey Consulting Pty Ltd [2008] NSWSC 1136

New South Wales Supreme Court

CITATION : NAK Australia Pty Ltd v Starkey Consulting Pty Ltd [2008] NSWSC 1136

HEARING DATE(S) : 8 August 2008 JURISDICTION : Equity Division Expedition List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 11 August 2008

DECISION : Defendants to provide further and better discovery in respect of the third defendant's existing and potential customers; defendants may mask prices in respect of certain products. Defendants excused from producing certain confidential documents. Discovery of documents relevant only to quantum not required pending determination of liability.

CATCHWORDS : PROCEDURE – DISCOVERY – CONFIDENTIAL COMMERCIAL INFORMATION – where defendants have masked certain parts of discovered documents and object to producing other documents – claim of commercial confidentiality does not prevail against an order for discovery – whether a party giving discovery can mask documents discovered – protective measures employed by courts to protect confidential commercial information – public policy considerations – where plaintiff claims injunctive relief and an account of profits – whether defendant needs to discover documents relevant only to an account of profits before liability is established – whether a reconstructed list of customers complies with discovery obligation – whether defendants can mask information relevant to pricing of products sold by the plaintiff – whether plaintiff should be granted leave to expand classes of discovery – whether defendants should be directed to depose as to the circumstances in which Schedule 2 documents were discarded before discovery was ordered - PROCEDURE – DISCOVERY – PRIVILEGE – third party communications - PROCEDURE – SUBPOENAS – whether granting plaintiff access to documents produced by telephone service provider amounts to giving the plaintiff access to confidential client list