What you need to know
- ASIC has updated its 'Document production guidelines' setting out ASIC's expectations when entities produce documents to it (whether voluntarily or under a notice to produce). We have seen variations of these guidelines with notices on an ad hoc basis over the last 12-18 months.
- Whilst some of the guidelines formalise current ordinary practice, other parts go further. This is particularly in the context of native files and the provision of metadata.
- ASIC also suggests it has the power to compel explanations about how a review was conducted. We think the position is not so clear.
- Whilst the guidelines are suggested to be voluntary, ASIC highlights potential consequences of non-compliance. In the current climate, ASIC's starting position may in practice be to treat them as binding.
What you need to do
- Review the guidelines and ensure teams responsible for document production to ASIC understand ASIC's expectations, and ensure litigation support providers who may assist you are set up to meet those requirements.
Overview of guidelines
The guidelines distinguish documents produced through a "litigation support system" (e.g. Ringtail or Relativity) and those which are not (whether that be electronic or hard copy), although there is some overlap. Producing through a "litigation support system" carries with it the additional burden to include further metadata where it is available (discussed further below) .
The key points are:
1. Although the guidelines are described as ASIC's preferences, there is clearly a push for entities to conform. ASIC is quick to note that if they are not followed: (i) ASIC may request the documents be reproduced; (ii) ASIC may serve a notice seeking production of the actual device where the documents are stored (e.g. a hard drive); and (iii) ASIC's costs in the investigation may be higher which they may then seek to recover through an order under s 91 of the ASIC Act or pass on more generally through the industry funding model.
2. ASIC has encouraged entities to carefully document their review and suggests they may compel entities to explain their review through s37(9) of the ASIC Act. We're not convinced. Whilst that encouragement may be best practice, it is not clear that s37(9) allows ASIC to seek explanations on to the review process, as opposed to the actual books produced. But that is not to say entities should not comply with a request for information anyway – and we do encourage documenting steps taken to ensure defensibility of the review process.
3. Native files are required to be produced (even if using a "litigation support system"), although exceptions apply (e.g. privileged documents). In our experience, it is worth talking to ASIC about this and whether they truly want it.
4. De-duplication is allowed unless the notice says otherwise. However, "duplicates" is narrowly defined. It requires two documents or groups of documents to be exactly the same. So it won't apply to de-threading email chains. See also the additional metadata requirements referred to below.
5. All metadata relating to the document must be produced. Where documents are extracted from a document management system, this includes metadata held in that system.
In addition, when producing through a "litigation support system", the following must also be provided "if available":
- Where the original document was a hard copy book, a title that "manually record[s] the document title from the face of the document".
- Custodian information. For emails, these are the "Mailbox(es) where the email, including any duplicates, resided". For other documents, it’s the "name of the individuals or departments from whose files the document, including any duplicates, originated".
- Related to the point immediately above, metadata for all duplicates not being produced. That is, whilst de-duplication is permitted, ASIC still expects metadata about the excluded duplicate documents to be produced.
- Notice section – that is the "section(s) or subsection(s)" the document is responding to, which must be in a specific format. However in our view such information is likely to be privileged where entities have legal advisers assisting them and that information reflects the legal work performed by those advisers.
- Both dates and times for certain metadata (e.g. sent, created, modified). Although not particularly controversial, many platforms may not automatically do this as default.
It's not entirely clear when the above information will be regarded as being "available". On one view, unless these matters are included or recorded as part of the review process, it is not available for production. After all, entities should not be expected to create information to respond to a notice.
Willingness to engage?
On a final note, in its guidelines ASIC has encouraged entities to contact it if they have questions about any aspect of the notice, including scope and the meaning of terms. This is perhaps the beginning of a recognition of the width and depth of notices we have seen over the last year and a half. That open invitation will be welcome news to entities, although whether that contact will always lead to reasonable outcomes remains to be seen.
Authors: Ian Bolster, Partner; Matthew Youssef, Senior Associate and Inakshi Rajadurai, Lawyer.
