Court watch: preliminary discovery

In most jurisdictions the court can make an order for preliminary discovery if a party reasonably believes it may have a right to relief against an identified person but does not have sufficient information to decide whether to sue. This note discusses whether an order for preliminary discovery in the federal Court extends to documents that not only may assist the applicant to decided whether it may have right to relief but ask whether it may be worthwhile to sue to discover that relief. This issue follows from the Full Federal Court decision in Pfizer Ireland Pharmaceuticals v Samsung Bioeps AU Pty Ltd (Pfizer) and the subsequent decisions of Charlesworth J in BCI Media Group Pty Ltd v Corelogic Australia Pty Ltd (BCI) and Markovic J in Manolo Blahnik Worldwide Ltd v Estro Concept Pty Ltd (Manolo). These decisions illustrate some equivocation about whether Pfizer limits preliminary discovery in the Federal Court to documents relevant to the applicant's belief that it may have a right to relief and precludes discovery that is limited to quantum or whether it is worthwhile for the application to pursue a claim.