Date/s of Hearing: 6, 9, 14, 15, 16, 17 April 1998

Equity - obligation of confidence allegedly owed by expert to a former retaining party - whether the expert and a subsequent retaining party should be restrained respectively from giving evidence and calling the expert to give evidence.

Evidence - expert witness - whether evidence inadmissible as a "protected confidence" - whether expert and party wishing to call the expert as a witness should be restrained by injunction respectively from giving evidence and calling the expert to give evidence.

Contracts Review Act 1980

Evidence Act 1995, Div 1A

Boyce v Goodyear Australia Ltd (CA (NSW), 16 September 1996, unreported)

Carindale Country Club Estate Pty Ltd v Astill [1993] FCA 218; (1993) 115 ALR 112

Castrol Australia Pty Ltd v Emtech Associates Pty Ltd (1980-81) 33 ALR 31

Coco v A N Clark (Engineers) Ltd [1969] RPC 41

Coulthard & Ors v State of South Australia [1995] SASC 4927; (1995) 63 SASR 531

Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VicRp 17; [1979] VR 167

Farrow Mortgage Services (in liquidation) v Clayton Utz (Supreme Court of

Farrow Mortgage Services Pty Ltd (In Liquidation) v Mendall Properties Pty

Ltd [1995] VicRp 1; (1995) 1 VR 1

Kennedy v Cynstock Pty Ltd [1993] NTSC 98; [1993] 3 NTLR 108

Mallesons Stephen Jaques v KPMG Peat Marwick (1990) 4 WAR 357

Murray v Macquarie Bank Ltd (1991) 33 FCR 46

Rakusen v Ellis Munday & Clarke [1912] 1 Ch 831

Re A Firm of Solicitors (1992) QB 959

South Blackwater Coal Ltd v McCullough Robertson (A Firm) (Supreme Court

Telstra Corporation Ltd v First Netcom Pty Ltd [1997] FCA 860; (1997) 148 ALR 202

The Uncle Toby's Co Pty Ltd v Trevor Jones Steele Publications Pty Ltd (in

liquidation) (Supreme Court of Victoria, Batt J, 12 October 1995, unreported)

Theakstone v McCann (Supreme Court of South Australia, Debelle J,

Torrington Manufacturing Company v Smith and Sons (England) Limited

[1966] RPC 285

Counsel for 2nd Defendant: M K Meek & S A Gregory

Solicitors: Booth Brown Samuels and Olney and P R Winney

In the primary proceedings, brought in the Common Law Division of the Court, the State Bank of New South Wales (hereafter "the Bank") as plaintiff sues members of the Elliott family for debt and for possession of mortgaged property. The Elliotts defend those proceedings in reliance upon cross-claims brought, inter alia, under the Contracts Review Act 1980.

The gist of the Elliotts' case under the cross-claims is that a property "Grove Hill", which adjoined the Elliotts' existing holding, "Ercildoune", was acquired in 1983, with the whole of the purchase price being provided by the Bank, allegedly in reliance upon encouragement and assurances of viability by the Bank, whereas the acquisition allegedly rendered the enterprise as a whole unviable.

In the present proceedings, brought in the Equity Division of the Court, the Elliotts as plaintiffs joined Mr R Ivey, an agricultural and a management consultant, and the Bank claiming the following orders. (The primary proceedings are referred to in the summons as "the common law proceedings".)

"1. An order restraining the Second Defendant from calling the First Defendant as a witness in proceedings no 11499 of 1994 in this honourable Court.

2. An order restraining the Second Defendant from tendering in evidence in the said proceedings a statement or report of the First Defendant in relation to the Plaintiffs.

3. An order restraining the First Defendant from disclosing to the Second Defendant any confidential communication by the Plaintiffs or any of them to the First Defendant relating to the Plaintiffs' farming business known as Ercildoune Partnership or their dealing or relationship with the Second Defendant."

At the time of the hearing the present proceedings the primary proceedings are part-heard before me.

Counsel have agreed that, for the purposes of the present proceedings, I could have regard to documents filed as of record in the primary proceedings and to everything that had happened in those proceedings, including the evidence given in those proceedings, but only as evidence of the fact that such evidence had been given as distinct from being evidence of the truth of what had been said in evidence. It has also been agreed that, in relation to any question as to the credit of any witness, I can bring to account in the present proceedings, any impression I have formed concerning witnesses called in the primary proceedings, and vice versa.

In 1994, Mr Ivey was retained through the New South Wales Rural Assistance Authority to advise concerning the Elliotts' farming business. He attended their property on 26 May 1994, spoke with members of the Elliott family, was shown certain documentary material and inspected the property. He sent his report dated 1 July 1994 to the Elliotts and to the Authority.

During 1997, Mr Ivey was approached by the Bank to provide a report for the purposes of the primary proceedings. He agreed to do so. In the course of correspondence prior to acceptance of such instructions, Mr Ivey provided the Bank's solicitors with a copy of his report of 1 July 1994.

Mr Ivey produced a report from the Bank which is dated 30 April 1997. Later, a report by Mr R J Pattison, an agricultural management consultant who had been retained by the Elliotts for the purposes of the primary proceedings, was submitted to Mr Ivey for comment. Mr Ivey produced a further report dated 23 June 1997 in which he provided a critical appraisal of Mr Pattison's report.

Mr Ivey introduced his report of 30 April 1997 as follows (par 1.1):

"This report compares the estimated net asset position of the Elliott family at July 1990 had they not purchased the property `Grove Hill' in December 1983, with their actual net asset position at July 1990.

In addition, the factors which would have caused a deterioration in the partnership's financial position from December 1983, even if it had not purchased `Grove Hill', are identified and discussed."

Then followed a section (being par 1.2) headed "Assumed facts". Mr Ivey said in that section:

"The following facts have been assumed in the course of preparing this report:

* The financial statements provided for CJ & M Elliott for 1983/84 and Ercildoune Partnership, for 1983/84 to 1989/90 inclusive, correctly record the partnerships financial position.

* The relevant information on the Elliott families' involvement in the ownership, management and operation of `Ercildoune' and `Grove Hill' is as set out in the Witness Statements of Crawford Jack Elliott and David Hewison Elliott.

* The costs of purchasing `Grove Hill' were as set out in the Purchaser's Settlement statement dated 2 December 1983 prepared by Palmer MacCallum & Akon, Solicitors of Forbes. Stamp duty costs on transfer were as set out in Ercildoune Partnership's farm cash book for 1983/84.

* The details on land utilization including crops sown on `Ercildoune' and `Grove Hill' at the time of purchase reflect instructions given to Mr Whitworth for the purpose of the statement which Mr Whitworth has made and which has been filed and served on behalf of the defendants in the proceedings.

* Had the partnership not purchased `Grove Hill', they would have operated an enterprise mix consistent with that which was undertaken after the property was purchased.

* The appropriate interest rates which the partnership would have paid had the purchase of `Grove Hill' not occurred, is reflected by the average of the prime rates advertised weekly by the major trading banks in the Australian Financial Review, plus a margin of 1.5%.

* The valuations for `Ercildoune' and `Grove Hill' used by Mr Dobbin in his report dated 3 November 1993 represented the approximate market value of the properties at that time.

* The valuation stated by Mr Tully in his October 1991 valuation/review are reasonable estimates of the properties' market values at that time.

* The purchase price of the Hill Street residence ($85,000) is as detailed in the Settlement statement prepared for the Purchasers by Palmers, MacCallum and Akon, Solicitors of Forbes, dated 21 February 1983.

* The value of machinery is as given in the `Application for Advance' prepared by Mr J Barton of the State Bank in November 1983.

* The valuations given in Table 9 of the current report, are reasonable estimates of the market value of the stock and `Other' assets of the partnership.

* Rainfall records for Forbes as supplied by the Bureau of Meterology are representative of the rain which fell on the properties during the relevant period.

* Gross margin budgets for 1984 published by the Agricultural Business Research Institute (ABRI) in Armidale are representative of expected returns from irrigated crops grown on `Ercildoune' and `Grove Hill' during that period."

It may be noted that a number of the assumptions related to what was shown in documentary material. It was not suggested that any of that material came otherwise than from the Bank or that any of it had been improperly obtained by the Bank. In particular, it was not suggested that any of that material was in Mr Ivey's hands only as a result of his activities in 1994.

Experts give opinion evidence based on assumptions. In this instance Mr Ivey recorded the assumptions made for the purposes of his report of 30 April 1997. In an affidavit, sworn on 20 March 1998 and read in these proceedings Mr Ivey confirmed that he had adopted that approach in this instance. He said:

"The material that I relied upon for that report (that is, the report dated 30 April 1997) is set out in paragraph 1.2 of that report."

Mr Ivey's subsequent report of 23 June 1997 does not specify assumptions. It consists of a critical analysis of Mr Pattison's report. It joins issue with Mr Pattison's reasoning. It does not introduce new factual considerations.

The Elliotts put their case for orders preventing Mr Ivey from giving evidence for the Bank in two ways. First, they say that to do so would be in breach of an obligation of confidentiality owed by Mr Ivey to the Bank. Secondly, they rely on Div 1A, Professional Confidential Relationship Privilege, of the Evidence Act 1995. I will deal with these approaches in turn.

An obligation of confidentiality arises when a reasonable person in the shoes of the recipient of the information would have realised that the information was being provided in confidence : Coco v A N Clark (Engineers) Ltd [1969] RPC 41 at 48 per Megarry J approved and applied in Telstra Corporation Ltd v First Netcom Pty Ltd [1997] FCA 860; (1997) 148 ALR 202 at 208 per Lockhart, Beaumont and Hill JJ; Coulthard & Ors v State of South Australia [1995] SASC 4927; (1995) 63 SASR 531 at 534 per King CJ and Smith Kline & French Laboratories (Australia) Ltd and Ors v Secretary, Department of Community Services and Health [1991] FCA 150; (1990) 99 ALR 679 at 691 per Sheppard, Wilcox and Pincus JJ.

The content of the duty of confidentiality is that use and disclosure of information obtained in confidence is limited to the purpose for which the information was provided: Torrington Manufacturing Company v Smith and Sons (England) Limited [1966] RPC 285 at 301 per Ungoed-Thomas J, applied and approved in C_astrol Australia Pty Ltd v Emtech Associates Pty Ltd_ (1980-81) 33 ALR 31 at 47 per Rath J.

In his book "Breach of Confidence", F Gurry has a chapter entitled "Common classes of obligation". After reviewing the authorities in relation to certain commercial and professional relationships (which do not include an agricultural and/or management consultant), Mr Gurry says (at 158):

"It would also seem apparent from the character of professional adviser that any confidential information which he learns will have been imparted to him for the limited purpose of enabling him to give advice, and thus cannot be used for any extraneous purpose."

That statement accords with the principles to which I have referred.

(a) Mr Ivey was retained by the Elliotts in 1994 as a professional consultant to advise them in relation to their farming business.

(b) That Mr Ivey thereupon became bound by an obligation of confidentiality concerning all information obtained by him in the course of the consultancy, to the extent that such information was particular to the Elliotts' business or to their personal affairs and irrespective of whether such information was obtained either by communication or by observation. (I mean to exclude, in point of principle, matters otherwise known to Mr Ivey or readily ascertainable, such as prevailing commodity prices, the history of weather conditions in the district, and so on.)

(c) That the confidential nature of such information has not been waived or otherwise lost.

I was referred to authorities relating to solicitors being precluded from acting against a previous client in a matter touching an earlier retainer. The principle stated by Cozens-Hardy MR in Rakusen v Ellis Munday & Clarke [1912] 1 Ch 831 at 835 is that a solicitor is precluded from acting if the complainant proves that -

"real mischief and real prejudice will in all human probability result if the solicitor is allowed to act...."

This test is probably too strict, that is, too difficult for the complainant to satisfy. The more recent authorities, which are collected by Muir J in South Blackwater Coal Ltd v McCullough Robertson (A Firm) (Supreme Court of Qld, 8 May 1997, unreported), appear to favour a more liberal test for a complainant to satisfy. Rather than requiring the complainant to prove that there is a reasonable probability of mischief and prejudice resulting if the solicitor is permitted to act against the former client the weight of authority in Australia favours adoption of a test which requires only that the complainant prove there is a real and sensible possibility that mischief and prejudice would result before relief will be granted : see Mallesons Stephen Jaques v KPMG Peat Marwick (1990) 4 WAR 357 at 362-3 per Ipp J; Re a Firm of Solicitors (1992) QB 959; The Uncle Toby's Co Pty Ltd v Trevor Jones Steele Publications Pty Ltd (in liquidation) (Supreme Court of Victoria, Batt J, 12 October 1995, unreported); Murray v Macquarie Bank Ltd (1991) 33 FCR 46 at 51; Carindale Country Club Estate Pty Ltd v Astill [1993] FCA 218; (1993) 115 ALR 112 at 118; Kennedy v Cynstock Pty Ltd [1993] NTSC 98; [1993] 3 NTLR 108; Farrow Mortgage Services Pty Ltd (In Liquidation) v Mendall Properties Pty Ltd [1995] VicRp 1; (1995) 1 VR 1 at 5; Theakstone v McCann (SC (CA), Debelle J, 27 February 1995, unreported); Farrow Mortgage Services Pty Ltd (in liquidation) v Clayton Utz (Supreme Court of Queensland , White J, 4 September 1995, unreported); and Boyce v Goodyear Australia Ltd (CA(NSW), 16 September 1996, unreported).

Mallesons (supra) is particularly instructive in identifying the reason for such apprehension in the case of solicitors. Ipp J said (at 362-3):-

"Accordingly I conclude that if, by a solicitor acting for a new client, there is a real and sensible possibility that his interest in advancing the case of the new client might conflict with his duty to keep information given to him by the former client confidential, or to refrain from using that information to the detriment of the former client, then an injunction will lie."

This and similar statements are made in the context that a solicitor is bound to employ all information at his or her disposal for the benefit of a client. The role of an expert witness is to be contrasted with that. The expert, as a witness, does not have a free wheeling brief to advance the interests of his or her client in the litigation. The expert witness' role is to provide an opinion having regard to assumed facts. Sometimes those facts may include facts observed by the witness, such as an inspection, a laboratory test or the results of a scientific experiment. Then the witness is also a witness as to fact. That is an ancillary function, when it occurs. The opinion evidence is still provided on the basis of a body of assumed facts, however ascertained or hypothesised.

It is further to be noted that expert witnesses who have provided an opinion on assumed facts are often asked to vary the assumptions, or to replace the assumptions entirely, and to state their opinion on the new assumptions as varied or substituted. That occurs frequently when the evidence as to fact of the party calling the expert has fallen short of the mark. It also occurs when expert witnesses are pressed in cross-examination for an opinion in favour of the opposite side - or at least to vary their prior opinion - on the basis of assumptions which accord with the facts as the opposite side contends the facts to be.

The capacity of a professional person to give an opinion based on an exclusionary set of assumptions is implicit in this process. The implication is reasonable because professional men and women are accustomed to forming opinions on assumed facts in the course of their ordinary professional work. It is part of their stock in trade, developed by training and by experience in the practice of their profession.

Thus it is that an expert witness has a much more limited role than that of a solicitor acting for a client. In particular, expert witnesses are not bound to use all information they might previously have obtained. On the contrary, expert witnesses are bound to confine their attention to specified factual assumptions which are made known to the court. The opinion is then only as good as the assumptions are established by evidence to be correct.

In the present case, Mr Ivey stated his assumptions in his report of 30 April 1997. Concerning those assumptions, Mr Ivey said in his affidavit sworn on 20 March 1988:

"I did not use any of the information provided by the Elliotts to me either documentary or oral in the meeting on 26 May 1994 in preparing and finalising either of my reports dated 30 April 1997 and 23 June 1997.......I have not used or relied upon any of the documents handed to me by the Elliotts or discussions with the Elliotts on 26 May 1994 in any other aspect of the court proceedings which are the subject of the relief sought in the summons."

This evidence was challenged by counsel for the Elliotts. At the least, it was submitted, there is a serious risk that Mr Ivey, consciously or unconsciously, used confidential information obtained in 1994 in forming the opinions expressed in his report of 30 April 1997.

For the present purpose I apply - in favour of the Elliotts - the test favoured by the weight of later authorities concerning solicitors rather than the test stated in Rakusen (supra) by Cozens-Hardy MR. Is there a real and sensible possibility that Mr Ivey will breach his duty of confidentiality owed to the Elliotts either by disclosing confidential information or using such information, either consciously or subconsciously, if he gives evidence for the Bank?

There was a direction in this case that the evidence in chief of all witnesses was to be in writing and notified in advance. I therefore proceed on the basis that Mr Ivey's evidence in chief will be his reports of 30 April 1997 and 23 June 1997. That is all I can assume. There is no basis for any other approach.

Relevantly, there were two opinions expressed by Mr Ivey in his report of 30 April 1997. The first was that, without the purchase of "Grove Hill", the Elliotts' financial position would have been no better. This goes to the causation of damage in relation to the Elliotts' cross-claim for negligent misstatement. It also goes to the exercise of the Court's discretion in relation to other aspects of the cross-claims, such as the claim for relief under the Contracts Review Act 1980.

The second conclusion related to management ability. The conclusion at the end of the report was in terms that "management inputs may have been below that required to achieve returns commensurate with the potential of the property". However, there were observations in the body of the report which were in more definite terms. In a section entitled "Discussions of actual performance", Mr Ivey explored possible explanations for the failure to achieve expected returns. Under a subheading "Management ability", Mr Ivey criticised the level of drawings, and the level of expenditure on plant and machinery, repairs and maintenance, soil and water conservation, and wages. This was an adverse opinion as to management ability, at least in those respects.

I assume that the Bank intends to rely on this evidence as explaining, in whole or in part, how the Elliotts came to be in such a bad financial position after the acquisition of "Grove Hill". It is part of the process of endeavouring to disassociate the acquisition of "Grove Hill" as a cause of that financial position. At all events, it is reasonable to suppose that the opinion will be relied on by the Bank as material evidence one way or another.

The Elliotts' case in the present proceedings is that confidential information was obtained by Mr Ivey at the time of his visit to the farm in May 1994, which was or might have been used by Mr Ivey in forming the opinions which he provided in his reports of 30 April and 23 June 1997.

The information falls into various categories. The first is data to do with farm finances. The second is information to do with farm management. The third is information concerning the state of mind of various members of the Elliott family in relation to past events and present circumstances, other than information in the first and second categories. The three categories give rise to somewhat different considerations but largely the categorisation does not matter. I will say why this is so.

The following is an extract from the cross-examination of Mr Ivey (Tr 868):

"Q. To be perfectly fair to the Elliotts, you would agree with me that you simply don't know the extent, if any, to which the conversations with the Elliotts on the 26th of May may have influenced the conclusions expressed by you in your report?

A. Can I answer that by saying that that general proposition was, I think, put to me by Dr Brown (the Elliotts' solicitor) some months ago, to which I replied to him, and I stand by that answer, that I have considered it, I have thought about it very sincerely and honestly, and in my heart of hearts I do not believe there is any information gained in 1994 that in any way influences or is part of my report in 1997."

The distinction drawn by Mr Ivey between having information but not taking it into account is readily appreciable by reference to the role of an expert witness. Mr Ivey specified in his report what he was going to assume for the purpose of the report of 30 April 1997. He said in his affidavit sworn on 20 March 1998, as I have recorded, that these were the assumptions in fact relied upon for that report. He now said, in the passage I have quoted from his cross-examination, that he did not bring to account at all what he was told in 1994 when writing his report in April 1997.

Having regard to the way in which an expert witness is expected to confine his or her consideration to a body of assumed facts, this evidence is not difficult to accept, and I accept it. Nor am I satisfied that there is a real and sensible possibility that Mr Ivey has brought to account what he was told in 1994 when writing his report in April 1997. In fact, I am affirmatively satisfied that Mr Ivey did not bring any information to account which was not specified in the assumptions listed in his report of 30 April 1997.

This is confirmed when one has regard to the three categories of information to which I have referred.

There appears to have been financial information - the first category of information - provided by the Elliotts in 1994, which was duplicated in whole or in part by financial information provided to Mr Ivey by the Bank in 1997. To that extent, Mr Ivey might have had regard to some information supplied to him in 1997 which had also been provided to him in 1994. That would not involve any breach of confidence. Nor does that consideration give rise to any substantive inconsistency with Mr Ivey's evidence.

As to the third category, information relating to the state of mind of members of the Elliott family, allegedly communicated to Mr Ivey in relation to various matters, had no conceivable relevance to the opinions formed by Mr Ivey as embodied in his reports of 30 April and 23 June 1997. Because of the confidentiality claimed in relation to such communications, I do not specify them here. They are recorded in the written outlines of argument and in the transcript of argument if it should be necessary for an appeal court to examine them.

I come then to the third category of information, the matter of management ability. Here, I need not be circumspect. The evidence in this category did not reveal anything of particularity that was adverse to the Elliotts or which could conceivably be used against them. The evidence relating to Mr Ivey's visit to the farm on 26 May 1994 is that the discussion took a number of hours (Tr 811). Apart from deferral of one topic, the level of indebtedness, there was no restriction on what Mr Ivey was free to enquire into (Tr 848). His terms of reference covered every aspect of the farm (Mr Ivey's affidavit, 20 March 1998, par 25). Virtually every aspect of the farm was covered in discussion (the same affidavit, par 29). It was easier for a consultant to talk to the farmer to obtain information (Tr 804). The property was inspected with Mr D Elliott (Tr 811). During the time he was with Mr D Elliott, Mr Ivey formed "an impression about aspects of his management of the property (my emphasis)"(Tr 811). He formed an opinion about "management of the property", although that was not an opinion specifically about Mr D Elliott because he understood there were other management inputs (Tr 812). It was not "an opinion about management ability as such (my emphasis)"; he did not undertake the sort of analysis that would have been required for that (Tr 812).

So Mr Ivey drew a distinction between, on the one hand, forming an impression about aspects of management (whether that of Mr D Elliott or of whoever was managing the property) or an opinion about management of the property and, on the other hand, forming an opinion about management ability. The first he did. The second he did not. I accept that evidence.

The distinction is apparent when one notes the sort of things that contributed to Mr Ivey's impression or opinion about management. He said the improvements were well maintained, the irrigation system was functioning, there were no erosion or noxious weed problems; in those respects, physical resources were good (Tr 812). These points, it may be noted, were all favourable. They were about management, but they could not have contributed to an adverse opinion about management ability such as appears in the report of 30 April 1997.

Mr Elliott was asked specifically about any relationship between his observations concerning management ability appearing in his report of 1 July 1997 and the opinion he formed in 1994:

"Q. Was that opinion (a reference to the 30 April 1997 report) consistent with the opinion you formed of the Elliotts after speaking with them in 1994?

A. It's completely independent. It was nothing - there was no information from 1994 which was incorporated in that conclusion."

I accept that evidence. I am not satisfied that anything seen or heard in 1994 concerning management influenced or might have influenced the views reached by Mr Ivey in 1997 concerning management ability. I am satisfied it did not. Mr Ivey gave his reasons for his 1997 observations on this topic in his report of 30 April 1997. They related to what appeared to him to be a failure to contain expenditure. There is no reason to suppose that the opinion as to management ability formed in 1997 by reference to financial information placed before the witness at that time, has been influenced by any earlier impression or opinion. Indeed, nothing has been disclosed as having been seen or heard in 1994 concerning management which might have influenced Mr Ivey to form a more adverse view in 1997 than he would otherwise have formed on the material placed before him at the later time. Mr Ivey said there was no such influence. I accept that evidence.

I turn now to the way the Elliotts put their case in reliance upon Div 1A of the Evidence Act 1995. This division is operative from 1 January 1998 and applies to the present hearing of the primary proceedings.

By s 126B, the court may direct that evidence not be adduced in a proceeding if the court finds that adducing that evidence would disclose (so far as is relevant) a "protected confidence" or the contents of a document recording a protected confidence. A protected confidence is defined by s 126A as meaning a communication made by a person in confidence to another person.

Assuming, as I do for the purposes of the argument, that Mr Ivey obtained confidential information at the time of his visit to the Elliotts' farm in 1994, that information would be a protected confidence within the meaning of the Act.

It may be doubted that a court is empowered to give a direction pursuant to s 126B otherwise than in the proceedings in which it is intended to adduce the evidence. It follows that it may be doubted that a direction pursuant to s 126B concerning Mr Ivey's 1997 reports can be made by way of injunction as is sought in the present proceedings. However, if the court would, in the primary proceedings, direct that the evidence not be adduced, that would provide a strong argument in favour of granting the injunction that is sought. It has been appropriate, therefore, to entertain the argument advanced in reliance upon the provisions of Div 1A of the Act.

The argument may be dealt with shortly. For the reasons I have given, I am not satisfied that adducing the evidence - that is, Mr Ivey's reports - would disclose a protected confidence or the contents of a document recording a protected confidence. That is fatal to the approach.