Harman undertakings

Use and misuse of documents produced under compulsion

WHAT YOU NEED TO KNOW

• Information obtained on discovery or subpoena cannot be used for a collateral or ulterior purpose unrelated to the proceedings in which that production occurs.
• Only limited uses are allowed without leave of court.

WHAT YOU NEED TO DO

• Keep discovered information secure and observe the limits of its use, and seek legal advice if you think you have used that information inappropriately. 

Parties to litigation regularly obtain information by way of discovery or subpoena. It is important to know what can and cannot be done with that information, as its misuse is a contempt of court.

The Harman undertaking

Information that is not in the public domain and was obtained by discovery or subpoena cannot be used for a collateral or ulterior purpose unrelated to the proceedings in which the information was obtained. This is called an implied or "Harman" undertaking after Harman v Secretary of State for the Home Department [1983] 1 AC 280. It is a substantive legal obligation owed to the party who produces the documents and to the court: Hearne v Street (2008) 235 CLR 125 at [107]-[108].

The rationale for the undertaking is that the compulsion to produce material violates a party's right to confidentiality, and it would be inequitable for that material to be used for purposes other than that which compelled its production.

The Harman undertaking arises mainly at common law, though it also appears in certain court rules such as rule 21.7 of the Uniform Civil Procedure Rules 2005 (NSW) and may be the subject of court orders. Harman undertakings and other obligations of confidence may also arise in relation to information produced in mediation or arbitration proceedings, not only according to common law (Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10) but also under State and Commonwealth legislation and the rules of various international arbitration bodies – such as Article 30 of the London Court of International Arbitration Rules.

Who is bound?

The Harman undertaking binds the litigants in proceedings and also any third party who receives documents and is aware that they have come from legal proceedings: Hearne v Street at [109]-[112]. The third party does not need to know about the undertaking to be bound by it.

What is prohibited?

The Harman undertaking prohibits documents and information produced under compulsion from being used for a collateral or ulterior purpose unrelated to the proceedings in which they were produced. There is extensive case law as to what constitutes "a collateral or ulterior purpose". Examples of collateral or ulterior purposes include:

• Using information for a business purpose or to gain a competitive advantage: Drivetime Radio Australia Pty Ltd v Pivotal Creative Solutions Pty Ltd & Anor [2010] NSWSC 1103.
• Disclosing information to the press in order to expose an alleged wrongdoing: Distillers Co v Times Newspapers [1975] 1 QB 613. 
• Disclosing information to a regulator, or to a Minister for use in lobbying: Hearne v Street.
• Using information from one proceeding to maintain a different proceeding, even if the parties and causes of action are identical: Crest Homes plc v Marks [1987] 1 AC 829 at 837.
• Using information to add a new claim to existing proceedings that is fundamentally different to that already pleaded, such as a defamation claim based upon documents discovered during proceedings for breach of contract: Mann v Medical Defence Union Ltd, unreported, FCA (Ryan J) 7 February 1997.

What is allowed?

The Harman undertaking does not prohibit the use of information produced under compulsion that is reasonably related to the proceedings. Information can be disclosed among a litigant's solicitors, counsel and advisers, as well as to actual and prospective witnesses and to the directors and officers of a corporate litigant. In all cases, those receiving the information are themselves bound by the undertaking. Further examples include:

• Disclosing information to the parent company of a corporate litigant, or to an insurer where an indemnity claim is likely to arise: Cadence Asset Management Pty Ltd v Concept Sports Limited [2006] FCA 711 at [6].
• Disclosing information to a litigation funder, though this can go no further than is necessary for the funder to assess the merits of the case: QPSX Limited v Ericsson Australia Ltd (No 5) [2007] FCA 24.

When does it end?

The Harman undertaking can cease in a limited number of situations, thus allowing discovered information to be used for purposes that would otherwise be prohibited. These situations are:

• Release by leave of court where there are special circumstances making it just to do so: Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283 at [31].
• When discovered material is received into evidence in open court and the information within it thereby becomes public, in which case only that information about which the public has become aware can be used: British American Tobacco Australia Services Ltd v Cowell (2003) 8 VR 571.

Because the Harman undertaking is an obligation owed to the court, it cannot be waived by the parties alone: Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316 at 321-322. Instead, a party's consent to what would otherwise be a prohibited use will be relevant in seeking a release by leave of court. Leave may be unnecessary, however, if consent is given openly in court: Dagi & Ors v The Broken Hill Proprietary Co Ltd & Anor [1996] 2 VR 567 at 572. Consent provided outside open court may also vitiate the coercion upon which the Harman undertaking is based in the first place.

Consequences for breach

Threatened breaches of the Harman undertaking may be restrained by injunction. Breach is a contempt of court, and therefore very serious for litigants, third party recipients and legal practitioners. There is no "public interest" defence to a breach of the Harman undertaking.