Clayton Utz’s Past Conduct — Part 2: The Kazaa Case and the Independence of an Expert Witness

In Part 1, I looked at the Rolah McCabe tobacco litigation and the ethics review Clayton Utz announced after the original trial judgement. The next case in the references I previously published on this blog concerns something different: the preparation of an expert witness’s evidence.

An expert is called to assist a court with matters outside ordinary knowledge. In the Kazaa copyright case, one of those matters was how the music sharing technology worked. Professor Keith Ross, a computer scientist, gave evidence for parties represented by Clayton Utz.

The question raised by his evidence was one I find deeply troubling: 

if lawyers help prepare an expert’s report, how can the court be sure the opinions remain the expert’s own?

——

What the court saw

On 5 September 2005, Justice Murray Wilcox delivered judgement in Universal Music Australia Pty Ltd v Sharman License Holdings Ltd. During the hearing, Professor Ross had been questioned about exchanges with a Clayton Utz solicitor concerning a draft of his expert report.

The judge described one exchange in particular. Professor Ross had written a sentence about how parts of the Kazaa system worked. A solicitor crossed it out and suggested a different technical explanation. Professor Ross responded that he had not been aware of that explanation, even after testing, but accepted it on the solicitor’s say-so. (See https://www.steptoe.com/a/web/1235/2051.pdf). 

That suggested wording didn’t simply appear unchanged in the final report. The correspondence showed a further exchange, and Professor Ross told the court that he would have needed more evidence before adopting the earlier suggestion. Justice Wilcox didn’t accept his explanation of what he had meant in the email.

The judge concluded that Professor Ross had been prepared to seriously compromise his independence and intellectual integrity. He considered it potentially unsafe to rely on Professor Ross’s evidence about a controversial matter, while expressly saying that his evidence shouldn’t be disregarded altogether. That was a finding about the expert witness’s reliability. It wasn’t a finding that Clayton Utz’s lawyers had fabricated evidence or committed professional misconduct (https://www.steptoe.com/a/web/1235/2051.pdf). 

That distinction matters, but so does the fact that the exchange happened at all.

——

What was reported about the lawyers

On 9 September 2005, Garth Montgomery reported in The Australian on the correspondence between Professor Ross and Clayton Utz. The article described lawyers supplying a starting draft, suggesting changes and discussing technical descriptions in the proposed evidence. It also reported Clayton Utz’s position that its suggestions were requests rather than directives, and that the firm denied wrongdoing.

On 16 September, The Australian reported that complaints concerning three Clayton Utz lawyers had been lodged with legal professional bodies and police over the preparation of Professor Ross’s evidence. The article also reported Clayton Utz’s response that the judgement contained no adverse finding about the firm’s conduct.

A further article in The Australian Financial Review on 23 September examined the email trail and the difference between testing an expert’s assumptions and improperly shaping an expert’s opinion. It noted that the disputed suggestion hadn’t made it into the final report and that Justice Wilcox’s adverse finding was directed at Professor Ross, not the firm.

Taken together, the reports raise a serious question while also showing why it can’t be answered by selecting only the most alarming email. The drafts, the final report, the expert’s own testing, the court’s reasoning and the firm’s response all matter.

——

Why this question stays with me

I have written about my own experiences with medico-legal “assessments” and reports. The Kazaa case is not evidence that the same thing happened in my circumstances, and I’m not suggesting the people involved in that case had any connection.

But it explains why the “independence” of a person presented as an expert matters so much to me. A report can carry authority because of the qualifications of the person whose name is on it. The court, the parties and the person affected need to be able to understand where that person’s own observations and conclusions end, and where suggestions from those instructing them begin.

Justice Wilcox was able to examine the correspondence and question Professor Ross about it in open court. That scrutiny exposed a problem with the expert’s willingness to accept a suggested technical assertion. It also allowed the court to make a careful distinction about what it had, and had not, found.

That’s the question I take from this case: 

when an expert report is used to influence a consequential decision, what access does the person affected have to the instructions, drafts and exchanges needed to assess whether the opinion is genuinely “independent”?

——

Sources

• Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 1242, Federal Court of Australia, 5 September 2005, especially paragraphs 226–231.

• Montgomery, G., “Clayton Utz in hot water over witness,” The Australian, 9 September 2005.

• Montgomery, G., “Clayton Utz trio facing inquiry,” The Australian, 16 September 2005.

• Priest, M., “Clayton Utz treads witness tightrope,” The Australian Financial Review, 23 September 2005.