Discovery of Electronic Databases in the Federal Court of Australia
Preliminary
This brief entry will consider two (2) recent Federal Court decisions where the discovery of electronic databases containing certain business records was disputed.
Wikipedia defines a 'database' as:
“A computer database is a structured collection of records or data that is stored in a computer system so that a computer program or person using a query language can consult it to answer queries. The records retrieved in answer to queries are information that can be used to make decisions. The computer program used to manage and query a database is known as a database management system (DBMS)."
Producing a Database for Discovery
For the purposes of discovery, avenues for satisfying a request for production of a database include:
- Assert that production of the database, regardless of form, imposes substantial burden (e.g. time, cost);
- Produce the database in its native form. This sounds straightforward, however, beyond a relatively standalone and easily exchangeable Microsoft® Access™ database, the large majority of common databases used in business enterprise (e.g. Microsoft® SQL Server®, Oracle® Database) require a substantially configured Database Management System (DBMS) to be accessed. Notwithstanding, it is reasonably likely that native production will result in the other party raising a further complaint when they can’t open and review the contents of the database; or
- Undertake further discussion as to the actual relevance of the database, i.e. what part of the database contents is actually 'potentially relevant' within the scope of discovery? Following discussions, refer to the 'Data Dictionary' (where available) for the database to frame (design and form agreement on) the 'Search Queries' to be executed over the contents of the database, to produce relevant 'Reports' which will be human-readable and easily produced for discovery.
Kyocera Mita Case
Kyocera Mita Australia Pty Ld v Mitronics Corporation Pty Ltd [2005] FCA 242 (Stone J); [2005] FCA 481 (Whitlam J).
In this contractual dispute, the applicant and first cross-respondent (Kyocera) filed a Notice of Motion which sought the first respondent and cross-claimant (Mitronics) to discover, inter alia, an electronic database, to the extent that the database related to the performance, service and maintenance history of 362 specified photocopying machines.
At [20]:
“Mitronics resist[ed] the claim on that basis that the electronic database at issue contains a large pool of computer information that, in effect, includes every facet of Mitronics’s business. It is said that the documents already discovered in respect of the 362 machines have no facsimile counterpart on the electronic database. Rather, the electronic database has information from the hard copy documents already discovered (eg. invoice details). The electronic database contains therefore a summary for each machine of the service history that finds its detail in the hard copy file already discovered.”
At [22]:
“At this stage, however, I am not satisfied that any purpose would be served by ordering that Mitronics discover or provide a copy of its database.”
Jarra Creek Case
Jarra Creek Central Packing Shed Pty Ltd v Amcor Limited [2006] FCA 1802 (Tamberlin J).
In this widely known Trade Practices litigation, Jarra sought that the Amcor entities "make initial discovery of certain electronic databases, one of the principal databases being an Oracle database." [3]
As an initial discovery containing a substantial number of documents was forthcoming, Jarra’s application was dismissed, pending future re-application to the Court, if necessary, at [24]:
“This proposed order is resisted on the ground that the Amcor entities wrote to Jarra two days before the hearing setting out several difficulties presented by Jarra ’s request for the production of eight databases in native electronic format. In particular, it was highlighted that the cost to the Amcor entities of providing the Oracle database in this format would be in the vicinity of $100,000.00. It was also emphasised in this letter that it would be difficult to regenerate certain reports and information from several of the other databases. The letter indicated that Amcor was continuing its enquiries in relation to the obtaining the specific information as contained in the databases, and was in the course of taking steps to provide the information in a mutually acceptable form. In my view, in these circumstances, it is premature to require disclosure or production of the information."
Seamus Byrne
in Federal Court of Australia, E-Discovery, EDRM - Production
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