Preliminary Discovery: Identify a Claim or Defendant

What Preliminary Discovery Can Establish

Preliminary discovery can help establish who to sue or whether to sue, depending on the applicable rule. This article uses the Federal Court of Australia’s rules to explain that distinction. State court procedures require their own jurisdiction and rule analysis.

Under rule 7.22, the court can order a person with relevant knowledge or documents to help identify a prospective respondent. You must show the possible right to relief, the inability to ascertain the respondent’s description and the other person’s relevant knowledge or document control. The record holder can be someone other than the eventual defendant.

Rule 7.23 concerns discovery from an identified prospective respondent. It requires reasonable belief in a possible right to relief in the Federal Court. After reasonable enquiries, the applicant must still lack enough information to decide whether to start proceedings. The applicant must reasonably believe the prospective respondent has, likely has, had or likely had control of directly relevant documents. Inspection must assist the decision.

The Federal Court preliminary-discovery rules set out both routes.

In Pfizer Ireland Pharmaceuticals v Samsung Bioepis AU Pty Ltd [2017] FCAFC 193, the Full Court explained the reasonable-belief requirement. The applicant must reasonably believe a right to relief may exist. It need not prove that the right exists. That distinction preserves a useful pre-action process without turning the application into a trial of liability.

Choose a court with jurisdiction over the contemplated relief. A payment dispute does not become a Federal Court matter simply because a bank holds the records. Once substantive proceedings begin, financial discovery in civil litigation addresses a different procedural stage.

Show the Enquiries Already Made

Your evidence must explain what is known and why a material question remains unanswered. For a possible-right-to-relief application, a bare assertion that you need more documents does not establish insufficient information.

The court examined this issue in Pfizer v Samsung (No 3) [2021] FCA 1428. The applicant must disclose the relevant information already available so the court can assess its sufficiency. Production helps an informed decision about commencing proceedings. It is not a means of adding reassurance when the existing information already permits that decision.

Prepare the supporting material around distinct questions:

• Identify the transaction or conduct creating the possible claim and the evidence supporting that account.
• Describe the records the client already holds, including documents that weaken the proposed explanation.
• Document the reasonable enquiries made, the people contacted and their responses.
• Explain what remains unknown and how the requested documents would resolve it.
• Set out why the proposed recipient is likely to hold or have controlled those documents.

A Fictional Misdirected Payment

Suppose a business pays $48,000 against an invoice after receiving changed bank details. The supplier denies receiving payment. The business holds the original invoice, the changed-details email and its payment confirmation. Its bank has attempted a recall, but the business still cannot identify the recipient.

An identity request could focus on records identifying the holder of the specified receiving account when that payment arrived. The evidence would connect the account details to the payment confirmation and explain the recall enquiries. A demand for every transaction through every account at the bank would go well beyond that identity question.

If the recipient is already identified, the lawyer must assess the different possible-right-to-relief requirements. The remaining uncertainty might concern documents recording the recipient’s asserted entitlement to the payment. Identifying that question does not itself establish that an order will follow.

Draft a Targeted Production Request

Draft each category so the record holder can identify the documents and the court can see how they answer the missing question. Connect the account or entity to the relevant transaction. Define the period by the event and explain why that period is needed.

For the fictional identity application, the proposed category could concern account-holder identification records for the receiving account at the time of the $48,000 credit. Specify the payment reference and account identifier in the application. Seek only the identification fields needed for the proposed proceedings, with protection for unrelated personal information.

Identity production can carry safeguards. In Dallas Buyers Club LLC v iiNet Limited [2015] FCA 317, the court ordered identifying information with restrictions on its use and disclosure. The decision illustrates why access to identifying records and freedom to use them are separate questions.

Address the practical terms in the proposed orders. Explain the retrieval burden and proportionate scope, identify confidentiality protections and preserve privilege. Consider who can inspect the records and whether unrelated material requires redaction. Any undertaking must match the court’s requirements and the intended use.

The Federal Court procedure requires an originating application and supporting affidavit identifying the documents or categories as precisely as possible. Privilege remains protected. The record holder can seek security for costs and expenses or payment of them. Budget for production and review before seeking an order.

Use the Response to Decide the Next Step

Review the returned documents against the specific identity or claim question that justified production. Keep the originals and record where each relevant fact appears. Separate an account-holder name from evidence about who directed or benefited from a transfer.

For the fictional payment, compare the account-holder record with the invoice correspondence and payment confirmation. A matching recipient name could resolve identity while leaving authority to retain the funds disputed. An inconsistent name could require further lawful enquiries. Neither result establishes liability by itself.

Preserve the order and its use restrictions alongside the records. The High Court’s decision in Hearne v Street [2008] HCA 36 explains the legal obligation governing compulsorily obtained material. Before sharing documents for another investigation or purpose, determine whether the use is authorised or requires the court’s leave. Give any permitted analyst the restrictions that govern the material.

Record the resulting advice against the unanswered question. If the evidence supports proceedings, identify the proposed defendant and factual basis for the claim. Where a material issue remains, specify the next lawful enquiry and its purpose. If the records do not support a claim, advise the client accordingly instead of treating production as a reason to litigate.