Discovery of documents in defamation proceedings against media organisations: transcripts of reporter's notes and draft programme scripts

Simunovich Fisheries Limited & ors v TVNZ & ors

In the fifth interlocutory judgment in this ongoing defamation proceeding the High
Court had to consider whether a broadcaster was required to give discovery of
draft programme scripts held by its lawyers, and whether a newspaper was required
to produce and discover transcripts of its reporter's notes.

This defamation proceeding arises out of a television broadcast and newspaper publications in 2002 relating to questions over the allocation of fishing quota by the Ministry of Fisheries. The plaintiffs, Simunovich Fisheries Limited and two of its executives, allege that the broadcast and publications were defamatory towards them.

In this judgment the High Court considered applications by the plaintiffs for additional discovery from the two media defendants. Discovery was sought from the broadcaster of draft scripts prepared in advance of the relevant television broadcast and provided to its lawyers for vetting. Discovery was sought from the newspaper publisher of transcripts of handwritten documents (its reporter's notes), the originals of which had been discovered, but which the plaintiffs contended they were unable to decipher.

Draft programme scripts

The originals were overwritten in the course of preparing fresh drafts as the television programme was prepared, and old drafts were not retained by the broadcaster, to ensure that old drafts were not inadvertently used during the programme.

The broadcaster had however routinely referred draft scripts to its lawyers for advice on various matters relating to the content of the scripts, and the lawyers had retained those drafts as part of the files maintained on behalf of their client. The discovery application related to those copies, approximately 15, held by the lawyers.

The plaintiffs claimed that the drafts were relevant to their allegations of ill will and malice against the broadcaster, and were therefore relevant to the quantum of damages sought. The plaintiffs believed that sections of the programme had been deliberately cut before it was broadcast which aggravated the sting of the allegedly defamatory material. The broadcaster, on the other hand, argued that the draft scripts were not relevant; and that they were, in any event, covered by legal professional privilege.

The court decided that the scripts were relevant, in that they could lead to inferences relevant to the case against the broadcaster; and that discovery of them was reasonably necessary (satisfying the test in the relevant rule). The court then had to consider whether the relevant copies were privileged.

The court held that while copies of the scripts prepared for the preparation of the programme would need to be discovered in the usual way, copies of the script which had been provided to lawyers for the purpose of legal advice were privileged. The plaintiffs are appealing this decision.

Reporter's notes

The plaintiffs complained that they were unable to decipher the handwritten notes, and sought an order requiring typewritten versions. The court concluded that there was no jurisdiction to make the order sought; holding that the rules cited by the plaintiffs in support of the application were designed to deal with the situation where poor or only partial copies of documents had been provided on discovery, and that the absence of any obligation on a party to provide translations of documents in foreign languages supported the conclusion that the plaintiffs could not obtain the order sought.

(* Bell Gully declares an interest in this proceeding, as Alan Ringwood is acting for the newspaper publisher in this litigation.)

Enquiries and information

For more information please contact Alan Ringwood, Partner.