CLAYTON UTZ has rejected suggestions that its lawyers acted inappropriately in exchanges with one of its expert witnesses who gave evidence in the recently concluded action by major record companies in the Federal Court.
In Universal Music Australia Pty Ltd v Sharman License Holdings Ltd, the case against Sharman Networks, distributors of the Kazaa online file sharing software, Professor Keith Wimberley Ross gave expert evidence for Sharman Networks.
He was one of two witnesses called by counsel for Sharman, in December last year to give their opinion on how much control the company could have over any pirated works exchanged between users of its file sharing software — Kazaa Media Desktop.
However, Justice Murray Wilcox said in his judgement handed down last week that he had been forced to conclude Professor Ross of the Polytechnic University in Brooklyn, New York, “was prepared seriously to compromise his independence and intellectual integrity” and that it would be unsafe to rely on his evidence in relation to any “controversial matter”.
Under cross-examination by counsel for the applicants, which included about 25 record companies, Professor Ross was shown a draft of his report showing exchanges between Ross and solicitors at Clayton Utz.
Justice Wilcox said the draft shows Ross initially wrote: “The Altnet Topsearch Index works in conjunction with the Joltid PeerEnabler to search for Gold Files.” Justice Wilcox noted the solicitor crossed out this sentence and suggested the substitute sentence: “TopSearch searches its own Index file of available Altnet content and PeerEnabler is not needed or used for this, other than to assist in the periodic downloading of these indexes of available content.”
Professor Ross replied to the solicitor: “I was not aware of this, even after our testing. But if you say it is so, then fine by me.” The solicitors wording was left in the draft, according to the judgement.
The solicitor had then responded: “Keith, we want to try to avoid you being exposed to criticism…” and suggested a sentence to Ross that later appeared in the final report.
Under cross-examination, Ross said further conversations with the solicitors were carried out over the phone where Ross had asked for “additional explanations or justification”. Referring to his “fine by me” comment, Ross said: “What I am saying there: ‘Fine with me, once you give me additional proof’.”
However, Justice Wilcox said he “could not accept” Ross’s explanation and after the cross-examination had “formed the view it might be unsafe to rely upon Professor Ross in relation to any controversial matter”.
Clayton Utz said it would not comment further than two statements, released on Wednesday and Thursday last week.
On Wednesday the firm said: “As you know, with the judgement subject to appeal, the matter is not concluded. In these circumstances it is obviously inappropriate to enter into any discussions in relation to the proceedings.
“I can however tell you that Clayton Utz rejects any suggestions that any of its lawyers have acted inappropriately in the conduct of these proceedings.”
On Thursday, the firm stated: “Professor Ross had published a number of books and periodicals on Kazaa, which is why he was approached to give evidence. His affidavit reflected the content of his published works, which were already in the public domain prior to this litigation.
“Clayton Utz complied with the obligations imposed on solicitors by the Federal Court in relation to the preparation of expert evidence and there was no findings in the judgement to the contrary, nor was there any criticism of the firm’s conduct.”
Andrew Ross, chair of the Forensic Accountants Special Interest Group, members of which regularly prepare expert witness reports for court, said Federal Court guidelines make it clear lawyers and experts should work together to ensure expert’s reports are of the “appropriate form”. “But [lawyers] commenting on the content is where the difficulty arises.”
“In my view, it is quite appropriate for a lawyer to raise issues as to the form of the report, because there is no point putting into a report something that a court is not going to be able to accept because it is in the wrong form legally.” Although he agreed this could involve re-working the content of a report, Ross said it should not involve “instructing the expert on what the expert’s opinion should be”.
A NSW Law Reform Commission report on expert witnesses tabled in Parliament this week stopped short of proposing that existing “sanctions” for inappropriate or unethical conduct by expert witnesses should be toughened.
The Commission said the existing “sanctions” are “appropriate and sufficient” and “attempting to adopt a more punitive approach would be unlikely to be effective, and may have the unintended consequence of discouraging suitable experts from giving expert evidence”.
But the report made several recommendations for changes to The Uniform Civil Procedure Rules 2005 (NSW) to allow a court to order that parties choose a joint expert witness.
The Commission recommends that if the parties can’t agree on a joint expert, then the court would choose a joint expert itself.
The report also proposes that civil procedure rules should be amended to require that “fee arrangements with an expert witness be disclosed”.
The Uniform Civil Procedure Rules were passed in June by the NSW Parliament as a schedule to the Civil Procedures Act 2005. For the first time, the Act introduced one set of rules to govern the civil proceedings in the Supreme Court, District Court, Local Court and Dust Diseases Tribunal.