ASADA has been ordered to give investigation documents to the Essendon Football Club and James Hird. We asked litigator Natalie Hickey what this means.

In civil proceedings, the parties are required to file their evidence, usually in affidavit form.  At trial these deponents will then be cross examined.

It is also part and parcel of the civil litigation process for the parties to engage in document discovery.  Each party must produce relevant documents for inspection by the other side.

The test of ‘relevance‘ will be determined by the issues in the case, namely, whether a joint investigation was lawful or not.  The documents relevant to this question can be categorised. For instance, any drafts of the Interim Report, any communications between Essendon and ASADA concerning the legality of the investigation, and so on.

Later, at trial, the inspecting party can decide whether to tender the documents as further evidence (e.g. if there is a ‘smoking gun’) or use them to cross-examine witnesses (e.g. “you said it was not a joint investigation but in this email you said it was”).

On its face, it seems very surprising that ASADA would be required to produce a range of very sensitive documents to Essendon and James Hird, particularly given that breach of confidentiality is one of the very matters they complain about in their Statements of Claim.

However, at the first directions hearing, Justice Middleton said that he would order discovery because he was keen to understand from primary documents exactly how the process worked (e.g. whether or not it was a joint investigation), rather than to rely on people’s recollections.  This goal is completely understandable.

However, it has yielded an ironic result in which Essendon and James Hird are now privy to sensitive material that, for example, the 34 players are unable to access themselves.  The peculiarity of this result is derived from the fact that the players are not parties to the litigation.  Discovered documents may only be inspected by parties to the litigation, and each party is subject to an implied confidentiality undertaking not to disclose the contents to anyone unless for the precise purpose of the litigation itself.

Sometimes the Court will make additional orders about who may inspect discovered documents to help preserve this confidentiality.  For instance, ‘Essendon Football Club’ is a party to the litigation which means theoretically all its employees (including those players who have received show cause notices who remain at the Club) can see the documents too.

That is why Justice Middleton has decided it is not necessary for, say, the boot studder or assistant coaches or most other EFC employees to see these documents.  He has, however, permitted access to the ultimate decision makers of the Club with respect to the litigation (the Board) and to those likely to provide day to day instructions in the case.  Confining access this way is standard practice where documents are sensitive.

Finally, it is worth noting that one of the key reasons why discovery was ordered (namely, whether there was a joint investigation) is no longer an issue because ASADA has conceded this in its Defence.

It does look like the documents ASADA will discover includes material concerning the show cause notices issued to the 34 players.  It highlights the consequence of the players choosing not to be part of the case, and why the Judge was keen to ensure they made this decision on a well informed basis.

Some players may have issues with the litigation and with the Club itself.  And yet, their employer and senior coach will now be able to see some sensitive material relevant to them either directly or indirectly, which they are not permitted to see themselves.

Natalie Hickey retired from the partnership of an international law firm in December 2013.  She is now freelancing, loves her football and the law, and is committed to explaining things in a user-friendly manner.  Her blog is The Social Litigator.