The data reduction process
4 In order to protect claims for LPP, the applicants instituted proceedings in this Court in April 2013. The matter came before Gilmour J in September 2013 and his Honour made orders, effectively by consent, as to what the parties refer to as a 'data reduction process' (DRP). The object of the DRP is to reduce the data on the electronic devices seized by the AFP to a manageable quantity based on relevance, so that a review for the purpose of identifying privileged communications must be conducted of only the remaining files.
5 The DRP is technical and has been developed by specialists. The AFP has specialised data forensic officers trained in its use. The applicants have appointed an independent expert to assist them. It is not in issue that the process is time consuming and the exercise expensive, as the amount of data to be considered, to put matters simply, is huge.
6 The DRP involves the following steps:
(a) forensic software is applied to each electronic device to expand the information, by expanding files such as ZIP files and emails
(b) there is then a grouping process to collate fields by images, documents and other files;
(c) that process results in a superset of documents;
(d) a filter is then applied to the superset to capture relevant files such as those in a DOC or PDF format and to also limit documents to a date range;
(e) the remaining files are then exported to disk media together with an index, with one copy to be provided to Bennett + Co (who then acted for all applicants), and one copy to be retained but uninspected by the AFP pending further orders.
7 It was agreed that the DRP would be carried out by digital forensic officers of the AFP (DFOs). The DRP is an automatic process and it was understood at the time of the orders that under the DRP no DFO is required to look at the content of the documents or examine them in order for the DRP to proceed.
8 Gilmour J also made orders programing the inspection regime for LPP. The processes with respect to claiming LPP over the hard copy documents and the electronic files were programmed to proceed concurrently.
9 I note from reviewing the transcript of the hearing before Gilmour J that concurrent inspection of the hard copies and the electronic files was favoured because of the potential for difficulty in establishing claims if the parties reviewed, for example, the hard copy documents first and in isolation.
10 In April 2014 further directions were made which were of an uncontentious nature and involved extending the involvement of the AFP in the data reduction process to include representatives of the Australian Securities and Investments Commission (ASIC).
11 Despite the agreed DRP, its facilitation fell apart during a trial run. The applicants made numerous claims of what they describe as breaches of the procedures agreed under the DRP. In summary, the applicants claim that documents or redactions were in fact viewed by the AFP and potentially made available for viewing by third parties. Both whether those breaches occurred as described and whether any disclosure was inadvertent is hotly contested by the parties, and it is not necessary for those disputes to be resolved in order to progress the matter (some 43 affidavits have been filed in that regard). However, that history is important because it is the reason for an identified lack of trust on the part of the applicants as to the involvement of certain persons in the DRP, a matter to which I will return.
12 Further orders were made on 18 August 2015 which required all the seized electronic and hard copy items and any copies to be held in secure storage by the Australian Government Solicitor (AGS) until further orders. I am told that all the data and hard copy documents have been held by the office of the AGS in accordance with those orders since then, and there has been no access to the material by the AFP. Accordingly, the DRP has not been progressed and no orders have since been made permitting the AFP access to those documents.
13 On 23 September 2016 there was a substantive hearing before Gilmour J during which the parties attempted to formulate a new DRP. Central to the hearing was a proposed modified program whereby a specified DFO (DFO Wheeler) would complete the reduction process for six only of the electronic devices and on particular terms. The AFP also addressed a concern raised by the applicant as to the potential for documents to be viewed on a computer screen while the software was running by proposing modifications to the system which ensured that a person who viewed a screen would see codified content only.
14 Having read the transcript of that hearing, it is apparent that the parties were close to agreement and that it appeared that the only outstanding issue to be resolved was that the applicants' solicitors should have an opportunity to discuss the revised DRP with their independent technical expert.
15 Gilmour J adjourned the hearing so that the parties could confer and finalise a set of proposed orders to encapsulate the matters that had been addressed at that hearing.
16 Regrettably, despite attempts at conferral no revised DRP was ever agreed between the parties and the documents have simply stayed in storage at the office of the AGS, and have not been accessed by any party.