?? Case Summary: Protecting Confidential Information in Expert Testimony ??

By Alyce Kliese and Gabriella Sarkis

In the realm of law, maintaining the sanctity of confidential information is paramount. This duty extends to the intricate dance between safeguarding confidential data and upholding the credibility of expert testimony, as exemplified in the case of Australian Leisure and Hospitality Group Pty Ltd & Anor v Dr Judith Stubbs & Anor [2012] NSWSC 215. This article explores the complex relationship between confidentiality and expert witness engagements.

Protecting Confidential Information

The case commenced with a series of restraining orders against an expert witness, Dr. Stubbs.

Dr. Stubbs had initially been retained by the plaintiffs to conduct a social impact assessment in support of a development application.

Dr Stubbs was subsequently hired by the defendants, a local council, as an expert witness in Land and Environment Court proceedings concerning the same development application.

The plaintiff, a prominent liquor store conglomerate, sought legal protection for sensitive and proprietary information they had entrusted to Dr. Stubbs. This confidential data included critical operational details, trading figures, and pricing strategies relating to their businesses. The plaintiff raised concerns of potential information misuse and the protection of confidential data by Dr Stubbs and sought relief in the Supreme Court of New South Wales.

Ultimately, the Court made orders restraining Dr Stubbs from disclosing confidential information of the plaintiff and restraining her from assisting the Council as an expert witness in proceedings in the Land and Environment Court.

Determination

In making its determination, the Court considered the following four elements that must be established for a successful claim for breach of confidence:

1. the information must be precisely identified.
2. the information must possess the necessary quality of confidence.
3. the recipient must be under an obligation of confidence.
4. there must be an actual or threatened misuse of the information without consent (Optus Network Pty Ltd v Telstra Corporation Ltd [2010] FCAFC 21).

The Court also considered the scope of the duty to preserve confidentiality and the risk of accidental disclosure, citing the following principles:

1. the duty to preserve confidentiality is unqualified.
2. it is equally important not misusing confidential information, as it is not to disclose confidential information.
3. the duty extends to preventing any use that could potentially harm the former client.
4. even accidental or subconscious disclosure is a concern.

The Council argued that the fourth element for a claim for breach of confidence could not be made out, because even if Dr Stubbs was previously provided with confidential information, as an expert witness she has a duty to preserve that confidentiality and not to disclose anything detrimental to the Council.

The plaintiff was concerned that despite Dr Stubbs’ duty to preserve the confidential information, there was a risk of inadvertent disclosure.

In applying the principles above, the Court's central task was to weigh the potential risk of inadvertent disclosure of confidential information against the duty to preserve confidentiality and the necessity of expert testimony.

The case's determination:

The Court accepted the Plaintiff's evidence that the information was confidential and had commercial value. Further, it was held that the information was imparted in circumstances of confidentiality and was retained as confidential.

Nevertheless, the courts will only step in if there's a real possibility of the misuse of confidential information.

The degree of risk depends on the specific circumstances of the case. In this case, the Court ordered the expert witness to be restrained from pre-trial involvement with Council, because of the risk of inadvertent or subconscious breaches of duty, noting that even with the best intentions, inadvertent or subconscious use of confidential information is a real risk.

Key takeaways

The case serves as a reminder of the importance of safeguarding confidential information and the need for clear boundaries in expert witness engagements, noting:

1. it is important to ask experts if they have been provided with any confidential information that relates to a matter, prior to engagement.
2. simply being provided with confidential information is not enough of a reason to restrain a party from using an expert. There must also be a real possibility that the confidential information will be misused.
3. the risk of accidental misuse of confidential information should also be considered in such circumstances.

???? #LegalEthics #Confidentiality #ExpertWitness