The beat goes on -- Sharman papers privileged?

Kazaa hearing day 14

The Federal Court today ordered the former lawyers of Sharman Networks to re-draft a list indicating which documents fall under legal professional privilege in the ongoing case against the peer-to-peer software provider.

Justice Murray Wilcox -- who is presiding over the case -- complained to Sydney-based firm Philips Fox and Sharman Networks parties, saying the list covered by privilege was "too broad". He said it even included invoices and bills.

"Not everything a solicitor does is [subject to] legal professional privilege.... I just don't understand how so many of these items are said to be privileged ... even who paid the bill ... amazing," Justice Wilcox said.

The applicants in this case -- a group of Australian music record labels -- said they had received only 16 documents which were not "covered by legal professional privilege".

Simone Tierney, senior associate from Philips Fox, was called to the witness stand today to justify why the indicated series of documents could be classified as privileged.

Tierney said that various internal e-mails and other documents between Philips Fox and its former client, Sharman Networks were irrelevant to the case, having nothing to do with any legal advice given on whether or not the distribution or operation of the Kazaa software involved copyright infringement.

Tierny added that several of the documents contained legal advice given to Sharman parties about intellectual property protection, ownership and "the incorporation of a management company for the Sharman parties".

Phillips Fox had been ordered by the Federal Court to hand over any documents "recording or evidencing any advice given ... in relation to the infringement of copyright arising from the distribution or operation of the Kazaa software".

The whole issue of determining which documents are to remain confidential will be further debated on 31 January. Sharman's chief technical officer Philip Morle has been told to appear in court again on the same day to justify claims of confidentiality.

Barristers for the applicants are pushing to get documents that have anything to do with the legal advice Sharman got regarding setting up an office in Vanuatu. The applicants' argument is that the respondents deliberately set up their company offshore to avoid prosecution for infringing copyright. The music record companies believe that Philips Fox was giving advice to Sharman Networks regarding their incorporation in Vanuatu.

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