Wednesday, 11 March 2020
By Jonathan Prideaux and Roman Barbera

ASIC’s New Document Production Guidelines have opened the door to a much greater level of consultation with companies that they issue with a statutory notice. The technical guidelines should also bring a higher degree of standardisation and ultimately efficiency to the process of responding to ASIC’s requests.

ASIC has powers to compel the production of originals and copies of documents (that it still defines as “books”) whether in hard copy or electronic form. It can issue a notice to do so under various sections of the ASIC Act 2001, most commonly s30 and s33, as well as various other Acts detailed in the new document production guidelines. ASIC may also request the voluntary production of documents.

A notice may request specific documents, such as “the minutes of the board meetings on [DATE]” or a category of documents such as “all internal and external correspondence relating to [SUBJECT]”, or both. A notice may request multiple categories of documents. ASIC may specify a time frame and even other criteria such as the people within the organisation who sent or received the correspondence, or they may leave those criteria open. 

ASIC has circulated various versions of a production protocol in recent times and has consulted with the legal industry on its content. The new guidelines go much further than any of the previous versions and should be seen as a positive step to providing clarity and standardisation to the way in which organisations respond to these requests. The main points to be aware of in the new guidelines are:
  • ASIC’s preferred production methods are discussed and there appears to be a preference for recipients to use a litigation support system of the type typically used by eDiscovery experts. The bulk of the content of the guidelines are dedicated to review methodologies and production specifications that relate to the use of these systems. Where a recipient does not follow the guidelines ASIC may process the documents itself in accordance with the guidelines and later seek to recover the costs of doing so.  Alternatively, it may ask that the documents be re-produced in accordance with the guidelines or that the original device where the documents are stored be produced. The latter may not always be practical in today’s digital world.  

  • Recipients are required to “carefully document” their review methodology that gave rise to the set of documents produced. This might include decisions about what data sources to collect (or not collect), how the documents were processed and filtered and what review methodology was used. The use of specific keywords and other search criteria, de-duplication methodology, instructions given to reviewers, quality control processes and any metrics form the use of Technology Assisted Review (TAR) processes, should all be carefully recorded. An eDiscovery expert will be able to assist with implementing a process that is properly defensible.

  • Where a litigation support system is used, ASIC requires documents to be produced in both native file and PDF image formats. There are some exceptions to this, such as where part of a document is redacted is required to be produced in PDF form only. This requirement may be onerous for some and lead to additional expense depending on the workflow that is used.

  • There are extended requirements for the provision of metadata. For example, five different date values are required to be produced although four of them only need to be produced “where the metadata is available”. The interpretation of this phrase is likely to create some disagreement.
  • De-duplication has always been a standard part of the methodology when using litigation support systems and is still allowed by the guidelines. ASIC does require duplicate ’contextual’ information to be preserved at least and possibly provided.

  • The guidelines require the production of data that identifies the “notice section” (i.e. the numerical category) which the document is responding to. Many lawyers may argue that this information is part of their work product and therefore privileged. ASIC could theoretically issue a separate notice for each category to get around this problem so it would be worth considering this requirement closely.

  • One of the major additions and improvements in these guidelines is the open invitation to consult with ASIC on both the scope of the request and the format for production. Whereas a unilateral response used to be common, early consultation with ASIC is likely to resolve any ambiguity and help to alleviate any of the problems caused by the points above.
ASIC’s notices are legal instruments so recipients should always consult a lawyer, whether internal or external, and an eDiscovery expert regarding any response.  It is expected that these new guidelines will be referred to with any notice issued but this may not always be the case. In turn, having some awareness of the protocol regardless should be of significant value to those receiving, or likely to receive, an ASIC notice or request for voluntary disclosure.