Don’t get caught failing to comply! ASIC requires all books to be produced in accordance with its complex 2020 Information Sheet (INFO 242)
On 2 March 2020, ASIC published a new Information sheet, INFO 242, containing it’s Document Production Guidelines. The guidelines are relevant for anyone producing books to ASIC, either in response to a notice or voluntarily.
Importantly, if a producing party fails to comply with the guidelines, ASIC can:
- Request that the books be reproduced, complying with the guidelines;
- Serve a notice requiring production of the device on which the documents are stored; and/or
- Serve an order under s91 of the ASIC Act requiring payment of ASIC’s investigation costs.
What does this mean, in a practical sense, for a company that has been served with a Notice to Produce books or has been requested to produce books voluntarily?
It is important to be aware that the guidelines will impact all phases of a response to an ASIC request/notice. There is a need for in-house teams and external legal teams to implement procedures and processes to accommodate the requirements, specifically Section D which relates to those working with a litigation support system. For example:
- Document Collection phase:
- Preservation of the original file path of the data (not the file path of where the files have been saved, or extracted to);
- Where available, preservation of the Custodian information for any electronic data. This is the owner of the mailbox or names of the individuals or departments from whose files the document originated; and
- Retention of specific date information for chat data, text messages and telephone conversations.
- Document organisation phase:
- Organisation of documents so that source information is preserved; and
- Retention of metadata and file path information for any duplicate documents that were excluded from the review phase.
- Document review phase:
- If advanced searching strategies are used to review the documents prior to production (keywords, concept searching, technology assisted review), there must be documentation that sets out the steps of the process, the workflow, and the outcome of the review.
- Document Production phase:
- Production of document families in full, not just the relevant member of that document family;
- Production of native file and the stamped PDF version
- Production of decrypted password protected files; and
- Exclusion of junk attachments (such as logos and email footers).
Do in-house or external legal teams have the resources / procedures to meet these requirements? If not, Sky Discovery can help.
The guidelines place a heavy burden on in-house and external legal teams with added obligations to ensure technology is deployed to meet the ASIC guidelines. Some teams will be set up and ready for the complex requirements, some will not. Teams who are not ready, must weigh up the high risk of non-compliance with the guidelines and the high risk of additional costs of non-compliance (involving financial, people resources and reputation) against the cost of seeking help and freeing up their front line and support teams from the heavy lifting.
At Sky Discovery, our experienced consultants see these types of production guidelines on a daily basis and Sky Discovery has developed workflows and production templates to best meet these requirements. Sky Discovery’s consultants also regularly liaise with ASIC in relation to notices to produce and can offer guidance when it comes to negotiating elements of the production format.
From the document collection, the electronic management, review and production process, it is important that the process is seamless and specifically designed to ensure compliance with ASIC’s document production guidelines. The alternative could result in higher costs and penalties if the production is not in the correct format.
For further information on Sky Discovery’s eDiscovery services, please contact your Sky Discovery Consultant on telephone: +61 2 9293 2999 or email: firstname.lastname@example.org
About the author
Leonie Taylor, Head of Projects, NSW
At Sky Discovery, Leonie consults directly with lawyers in developing best practice eDiscovery strategies and workflow solutions for their matters. Leonie has also recently started working with Sky Discovery’s Business Development team as a Client Relationship Consultant to network with clients and build strong and lasting relationships with key Sydney based clients.
Leonie has been integral in developing Sky Discovery’s eDiscovery training programs for clients and regularly presents CLEs for law firms discussing the best use of technology in legal matters. Leonie has multiple Relativity certifications including the Relativity certified user, Relativity Technology Assisted Review Specialist, and a Relativity Certified Sales Professional.
Leonie has significant experience in the eDiscovery space (5 years in the UK and over 8 years in Australia), having worked on some of the largest litigation projects in the industry. Leonie was previously a litigation lawyer in both Australia and the UK.
Sky Discovery is a leading independent Australian eDiscovery firm. We focus on building strategic relationships with leading mid-tier, specialist and international law firms in Australia that require outstanding eDiscovery services to achieve successful outcomes on disputes, investigations and regulatory matters. We are renowned in the Australian market for having one of the largest teams of eDiscovery experts, a 24/7 service model and, technological and service innovations that underpin speed and quality whilst providing demonstrable cost savings.