CFI 048/2018
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
SKATTEFORVALTNINGEN (the Danish Customs and Tax Administration)
Claimant
and
(1) ELYSIUM GLOBAL (DUBAI) LIMITED
(2) ELYSIUM PROPERTIES LIMITED
Defendants
CONSENT ORDER
UPON the parties agreeing the terms of this Order
AND UPON the parties recording their intention to complete (subject to any necessary application to Court) the review of the image files (currently estimated by Deloitte at c.423,000 documents) and the review of the Deloitte Segregated Documents (currently estimated by Deloitte at c.494,000 documents) provided for by this Order by the end of March 2021
BY CONSENT IT IS ORDERED THAT:
1. In this Order:
(a) “the 12 August Order” means the Order of Justice Sir Jeremy Cooke dated 12 August 2018;
(b) the “31 July Order” means the Order of Justice Sir Jeremy Cooke dated 31 July 2018;
(c) “Deloitte” means the Privilege Search Team as defined in paragraph 7 of the 31 July Order;
(d) “Image Files” means electronic documents of the following file types: Adobe Illustrator Artwork; Adobe Photoshop Image; AutoCAD DWG Drawing; Compuserve Graphic Interchange Format; GEM Draw Image; GIMP XCF Image; JPEG 2000 Image; JPEG; JFIF; Macintosh QuickDraw Picture; Microsoft HD Photo Image; Microsoft Visio Drawing; Microsoft Windows Enhanced Metafile; Microsoft Windows Icon Image; Microsoft Windows Metafile; Microsoft Word Picture; OpenDocuments Graphics; OpenDocuments Image; Portable Network Graphic; Scalable Vector Graphic; Tagged Image Format File; Targa Image File; Unix Portable Graymap Graphic; Windows Bitmap Graphic; Wireless Bitmap Graphic;
(e) “Occurrences” means in relation to any document, the number of identical versions of that document in the population;
(f) “Privilege Review Team” has the meaning given in paragraph 21 of the 31 July Order;
(g) “Privileged” has the meaning given in paragraph 2 of the 31 July Order as further defined in paragraph 5 of the 12 August Order;
(h) “Relativity” means Deloitte’s Relativity document review platform;
(i) “the Segregated TAR Order” means the Order dated 6 May 2020;
(j) “the Deloitte Unsegregated Documents” and “the Deloitte Segregated Documents” have the meanings given in paragraph 14 of the 31 July Order; and
(k) “the Supervising Legal Representative” means Mr Philip Punwar of Baker Botts LLP.
RELEASE OF UNSEGREGATED DOCUMENTS TO THE CLAIMANT
2. Notwithstanding the provisions of any prior order of the Court, Deloitte shall forthwith release to the Claimant’s lawyers any and all of the Deloitte Unsegregated Documents which have not hitherto been released to the Claimant’s lawyers save for:
(a) any documents which have been determined to be Privileged as a result of a concluded review (whether manual or technology assisted) pursuant to a prior Order of the Court, which documents Deloitte shall continue to hold pending further Order; and
(b) any documents which are Image Files.
REVIEW OF IMAGE FILES
3. The Defendants’ lawyers shall manually review and code as Privileged or Not Privileged on Relativity, and, where documents have been coded as ‘Privileged’, applying the relevant flag(s) as defined at paragraphs 5 and 6 of the 12 August Order, all those Deloitte Unsegregated Documents which have not been released to the Claimant and which are Image Files and which are:
(a) JPEG or JFIF files with a size equal to or greater than 30KB and with 30 or fewer Occurrences;
(b) Portable Network Graphic files with a size equal to or greater than 15KB and with 20 or fewer Occurrences;
(c) Compuserve Graphic Interchange Format files with a size equal to or greater than 20KB and with 5 or fewer Occurrences; and
(d) any other type of Image File with a size equal to or greater 30KB with 20 or fewer Occurrences.
4. The Defendants’ lawyers shall also manually review and code as Privileged or Not on Relativity, and, where documents have been coded as ‘Privileged’, applying the relevant flag(s) as defined at paragraphs 5 and 6 of the 12 August Order, a random sample of documents generated by Deloitte from the Deloitte Unsegregated Documents which are Image Files and which do not fall within paragraph 3. The said sample shall be no less than 5% of the total documents from which the sample is generated.
5. Deloitte shall continue to hold those Deloitte Unsegregated Documents which are Image Files which do not fall into paragraphs 3 or the sample generated under paragraph 4 pending further Order. For the avoidance of doubt, if the parties so agree in writing, Deloitte may release documents held pursuant to this paragraph to the Claimant, following the review of the sample ordered at paragraph 4.
6. All documents coded “Not Privileged” as a result of the review ordered at paragraphs 3 and 4 shall be released to the Claimant’s lawyers forthwith.
7. All documents coded “Privileged” as a result of the review ordered at paragraphs 3 and 4 shall be reviewed by the Supervising Legal Representative. If the Supervising Legal Representative and the Defendants’ lawyers do not, after a reasonable period for discussion, agree on how the document or documents should be coded, the Supervising Legal Representative or the Defendants’ lawyers may apply to the Court to determine the same.
MODIFIED REVIEW OF SEGREGATED DOCUMENTS
8. Paragraphs 10 to 16 of this Order replace paragraphs 15 to 20 of the 31 July Order in relation to those Deloitte Segregated Documents which the Defendants have not reviewed and coded pursuant to paragraph 15 of the 31 July Order by the date of this Order.
9. For the avoidance of doubt, the review at paragraphs 10 to 16 of this Order shall also apply to those Deloitte Segregated Documents which are held by Deloitte under paragraph 15 of the Segregated TAR Order.
10. Deloitte shall give members of the Privilege Review Team (only) access to the Deloitte Segregated Documents on Relativity. The Privilege Review Team shall conduct a review of the Deloitte Segregated Documents by reviewing batches of those documents prepared by Deloitte. Deloitte shall prepare batches in such sizes as it considers conducive to the expeditious review of the Deloitte Segregated Documents.
11. The Privilege Review Team shall notify the Defendants’ legal team in writing (which may be by email) when it commences the review of each such batch. The Privilege Review Team shall code documents in each batch as either “Privileged” or “not Privileged”. Where documents have been coded as “Privileged”, the Privilege Review Team shall apply the relevant flag(s) as defined at paragraphs 5 and 6 of the 12 August Order.
12. When the Privilege Review Team has completed its review of each batch, the Privilege Review Team shall notify Deloitte who shall make the batch available (or otherwise identify the documents in the batch) to the Defendants’ legal team.
13. The Defendants shall by 4pm 14 days after the batch is made available or identified to them under paragraph 12 above inform the Supervising Legal Representative, by revising the coding (and, if necessary, any flags) applied by the Privilege Review Team, which documents in the batch they consider should be Privileged (“Privilege Flagged Documents”). Those documents which they do not consider Privileged shall be released to the Claimant.
14. The Supervising Legal Representative or appropriate persons appointed by him shall within 14 days review the Privilege Flagged Documents and determine whether the same are Privileged. The Supervising Legal Representative shall provide the Defendants’ legal representatives with a list of Privileged Flagged Documents which he considers are not Privileged (the “Deloitte List”).
15. In the event of a dispute between the Supervising Legal Representative and the Defendants as to whether any particular document identified on the Deloitte List is Privileged, there be liberty to apply within 7 days after provision of the Deloitte List.
16. After the deadline stated at paragraph 15 has expired, the Supervising Legal Representative shall provide the Claimant with access to the documents on the Deloitte List in respect of which no application has been made.
INADVERTANT DISCLOSURE AND IRRELEVANT MATERIAL
17. If, upon reviewing a document received pursuant this Order, the Claimant’s lawyers conclude that: (1) the document is Privileged; and (2) the document has been inadvertently provided to the Claimant’s lawyers, the Claimant’s lawyers shall:
(a) immediately notify the Defendants’ lawyers and provide a copy of the document;
(b) cause the document to be retained by Deloitte as if it had been determined to be Privileged;
(c) destroy any copies of the document in the Claimant’s lawyers possession; and
(d) not provide copies of the document to the Claimant.
18. If, upon reviewing a document received pursuant to this Order, the Claimant’s lawyers conclude that a document is irrelevant to these proceedings or any other civil proceedings in relation to the same or related subject matter to these proceedings, the Claimant’s lawyers shall not provide copies of the document to the Claimant and shall destroy forthwith any physical and electronic copies extracted from Relativity.
AGREED VARIATIONS
19. The parties may agree variations to this Order, provided such agreement is in writing signed by both parties’ legal representatives.
LIBERTY TO APPLY
20. The parties have liberty to apply.
COSTS
21. Costs in the case.
22. The Supervising Legal Representative shall be entitled to his costs of complying with this Order as Supervising Legal Representative.
Issued by:
Nour Hineidi
Deputy Registrar
Date of issue: 28 October 2020
At: 11am