Optus class action: ‘Ridiculous’ spat over data-breach confidential court docs
Lawyers in the Slater & Gordon class action against Optus have been told to not over complicate terms around the exchange of confidential documents.
An early spat between Optus and Slater & Gordon over confidentiality arrangements for documents in a major class action case is “frankly ridiculous”, a Federal Court judge says.
Justice Jonathan Beach ruled on Friday Optus had not made good on its claim of privilege over a Deloitte report into the disastrous cyber-attack last year that saw millions of Australians’ data leaked.
It’s possible the report could now be used in evidence during the class action, which will argue Optus failed to protect its customers’ personal data.
During an administrative hearing of the matter on Tuesday, barrister William Edwards, KC, for Slater & Gordon, suggested the process for the proposed confidentiality regime — which in effect would outline how sensitive information is exchanged between the parties during discovery — could be referred to a judicial registrar.
“(Optus) have started with a very elaborate and onerous regime,” he said.
But Justice Beach said he could deal with issues about the confidentiality regime in “five minutes”.
“I am not the type of judge (who) flicks things to a judicial registrar,” he said.
“It seems to me frankly ridiculous to go through (this) process.”
The court heard Optus had suggested 14 days notice be given if a document containing sensitive information was to be filed with the court, while Slater & Gordon had proposed a period of two days.
Justice Beach asked why the parties could not sign a “vanilla” confidentiality agreement, given any documents shared would not yet be released publicly and with relevant solicitors and perhaps some external experts.
“(It is the) early stage of discovery … and the preparation of evidence. Why do we have to over engineer whether it is two days or 14 days before it even gets to open court,” he said.
“These are internal documents, nobody will get access to that material publicly.”
Mr Edwards said the parties were attempting to design a way to handle confidential information that was fit for purpose at all stages of the matter, but Justice Beach said that was “overly ambitious”.
Barrister representing Optus Katherine Richardson, SC, told the court one of the sticking points between the parties was that Slater & Gordon wanted some documents to go to the applicants and funders in the matter.
“This creates cyber security concerns,” she said.
Ms Richardson said “highly sensitive” material must be protected, for example playbooks about how Optus responds to data breaches.
The court heard there has already been one example in which sensitive information may have been released in court materials, the name of a “particular entity” that could flag to a potential hacker what type of information will be sent to the applicant’s solicitors.
Last week, Justice Beach ruled the embattled telco could not keep secret a report it commissioned into the huge data breach last year that saw Medicare numbers, driver’s licence and passport details stolen.
And in a further blow to the company owned by Singapore Telecommunications, last week its network melted down, paralysing Melbourne’s train network and blocking customers from calling Triple-Zero in some cases.
Issues about confidentiality are set to be sorted out by the end of the year, with a further hearing scheduled for December 14.
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