June 20, 2019 court of first instance - Orders
Claim No: CFI-048-2018
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
SKAT
(The Danish Customs and Tax Administration)
and
(1) ELYSIUM GLOBAL (DUBAI) LIMITED
(2) ELYSIUM PROPERTIES LIMITED
Defendants
CONSENT ORDER
UPON the Claimant’s application by application notice issued on 9 April 2019
AND UPON the parties agreeing the terms of this Order
BY CONSENT IT IS ORDERED THAT:
1.In this Order:
(a) “the 31 July Order” means the Order of Justice Sir Jeremy Cooke dated 31 July 2018;
(b) “the 12 August Order” means the Order of Justice Sir Jeremy Cooke dated 12 August 2018;
(c) “the Deloitte Unsegregated Documents” has the meaning given in paragraph 14 of the 31 July Order;
(d) “the TAR Program” means Deloitte’s predictive coding software operated through the Relativity document review platform;
(e) “the Claimant’s TAR Review Team” means: (1) Chris Rees-Gay; (2) Alasdair Unwin; and (3) Safia Nasir;
(f) “the Defendants’ TAR Review Team” means: (1) Aarti Maharaj; (2) Michael Smith; and (3) Clare Groom;
(g) “the Deloitte TAR Supervision Team” means the Privilege Search Team as defined in paragraph 7 of the 31 July Order;
(h) “Privileged” has the meaning given in paragraph 2 of the 31 July Order as further defined in paragraph 5 of the 12 August Order;
(i) “Training Sample” means a stratified sample of documents in a batch generated by the TAR Program with a maximum sample size of 2,000 documents and a minimum seed influence of 25;
(j) “Quality Control Sample” means a statistical sample of documents in a batch generated by the TAR Program with a 99% confidence level and +/-2.5% margin of error;
(k) “the Sample Review Process” means the process for reviewing Training Samples and Quality Control Samples set out at paragraphs 11 to 13 of this Order;
(l) “Overturns” means each instance during the review of a Quality Control Sample when: (i) the TAR Program had coded a document as “Not Privileged”; and (ii) the final coding decision at the conclusion of the Sample Review process for that document was “Privileged”;
(m) “the Overturn Rate” is, in relation to any Quality Control Sample, a percentage calculated at the conclusion of the Sample Review Process as the number of Overturns divided by the number of documents in the sample which the TAR Program had coded as “Not Privileged” before the Sample Review Process;
(n) “the Overturn Threshold” is 2%; and
(o) “the Supervising Legal Representative” means Mr Philip Punwar of Baker Botts LLP.
2. Paragraphs 24 and 25 of the 31 July Order shall be replaced in their entirety by paragraphs 3 to 20 of this Order.
THE CLAIMANT’S TAR REVIEW TEAM
3. The Claimant’s TAR Review Team must comply with the information barriers and other restrictions set out in paragraphs 21 and 22 of the 31 July Order.
THE TECHNOLOGY ASSISTED REVIEW
Batch preparation
4. The Deloitte TAR Supervision Team shall forthwith divide the Deloitte Unsegregated Documents into batches of approximately 3.5 million documents. The allocation of documents to any particular batch shall be carried out solely by the Deloitte TAR Supervision Team and by reference only to what they reasonably believe will result in the expeditious review of the Deloitte Unsegregated Documents. Documents will not be batched by reference to their relevance to the issues in dispute.
5. The Deloitte TAR Supervision Team may in their discretion remove from the Deloitte Unsegregated Documents (whether before or after the creation of a batch) any documents which they reasonably consider to be: (1) manifestly irrelevant (such as junk or spam files); or (2) unsuitable because of their content (or absence of content) for a technology-assisted review. Any documents so removed will be held by the Deloitte TAR Supervision Team pending further order.
6. In any batch prepared under paragraph 4 above, the Deloitte TAR Supervision Team may include documents that have been coded in a previously completed batch, if the Deloitte TAR Supervision Team concludes that the inclusion of those documents will ensure a consistent review process across batches.
7. Each batch shall be reviewed in accordance with the directions at paragraphs 8 to 16 below.
Sample generation
8. The Deloitte TAR Supervision Team shall cause the TAR Program to generate such samples as they consider necessary to enable the TAR Program to code the documents in the batch.
9. Whether any sample generated is a Training Sample or a Quality Control Sample is in the Deloitte TAR Supervision Team’s discretion.
10. Any Training Sample or Quality Control Sample generated by the TAR Program shall be reviewed in accordance with the Sample Review Process.
Sample Review Process
11. The Claimant’s TAR Review Team and the Defendants’ TAR Review Team shall each review the documents in the sample and code each document as “Privileged” or “Not Privileged”. The review teams must proceed expeditiously and each individual reviewer should use their best endeavours to review an average of 500 documents per working day.
12. When the Claimant’s TAR Review Team and the Defendants’ TAR Review Team have coded the sample, the Deloitte TAR Supervision Team shall compare the coding decisions of both teams. The final coding decision in relation to each document shall be established as follows:
(a) Where the Claimant’s TAR Review Team and the Defendants’ TAR Review Team have applied an identical coding to a document, the TAR Program shall apply that coding decision.
(b) Where the Claimant’s TAR Review Team have coded a document as “Privileged” and the Defendants’ TAR Review Team have coded a document as “Not Privileged”, the TAR Program shall apply the Defendants’ TAR Review Team’s coding decision.
(c) Where the Claimant’s TAR Review Team have coded a document as “Not Privileged” and the Defendants’ TAR Review Team have coded a document as “Privileged” and the review teams are unable to resolve the difference within 24 hours:
(i) the Deloitte TAR Supervision Team shall make the document available to the SLR who shall as soon as reasonably practicable code the document as either “Privileged” or “Not Privileged”; and
(ii) the TAR Program shall apply the SLR’s coding decision.
13. At the conclusion of the Sample Review Process, the TAR Program shall code or re-code (as the case may be) the documents in the batch applying the final coding decisions produced by paragraph 12 above in relation to each document in the sample.
Completion of a batch
14. Once: (a) the TAR Program has coded 90% of the documents in the batch; and (b) the Overturn Rate in the most recent Quality Control Sample was equal to or below the Overturn Threshold, the Deloitte TAR Supervision Team shall cease generating further samples. The Deloitte TAR Supervision Team shall then:
(a) retain until further order those documents in the batch coded “Privileged” by the TAR Program; and
(b) release to the Claimant’s lawyers those documents in the batch coded “Not Privileged” by the TAR Program.
15. Notwithstanding paragraph 14 above, the Deloitte TAR Supervision Team may in their discretion continue causing the TAR Program to generate Training Samples and Quality Control Sample if they reasonably believe that review of those sample will enable the TAR Program to code documents in the batch which it had hitherto not coded.
16. Any documents which the TAR Program has not coded shall be held by the Deloitte TAR Supervision Team pending further order, unless the Deloitte TAR Supervision Team reasonably believe that those documents may be coded if they were included in a subsequent batch, in which case the Deloitte TAR Supervision Team may include those documents in a subsequent batch.
INADVERTANT DISCLOSURE OF PRIVILEGED MATERIAL
17. If, upon reviewing a document received pursuant to paragraph 14(b) of 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 the Deloitte TAR Supervision Team as if it had fallen within paragraph 14(a) of this Order;
(c) destroy any copies of the document in the Claimant’s lawyers possession; and
(d) not provide copies of the document to the Claimant.
IRRELEVANT MATERIAL
18. If, upon reviewing a document received pursuant to paragraph 14(b) of 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 document review platform.
AGREED VARIATIONS
19. The parties may agree variations to paragraphs 1 and 3 to 18 of this Order in writing signed by both parties’ legal representatives.
20. In this Order, any decision or discretion of the Deloitte TAR Supervision Team is at all times subject to any contrary written direction signed by both parties’ legal representatives.
LIBERTY TO APPLY
21. The parties have liberty to apply.
COSTS
22. Costs in the case.
23. The Supervising Legal Representative shall be entitled to his costs of complying with this Order as supervising legal representative.
Issued by:
Nour Hineidi
Date of issue: 20 June 2019
Time: 1pm
