May 06, 2020 court of first instance - Orders
Claim No: CFI 048/2018
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
SKATTEFORVALTNINGEN (the Danish Customs and Tax Administration)
and
(1) ELYSIUM GLOBAL (DUBAI) LIMITED
(2) ELYSIUM PROPERTIES LIMITED
Defendants
CONSENT ORDER
UPON the parties considering paragraph 2 (b) of the DIFC Court Order dated 30 September 2019 agreed by consent
AND UPON the parties seeking an order to support civil proceedings in each jurisdiction which relate to the subject matter of the English Claim
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 Segregated 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 the following individuals: Alasdair Urwin, Christopher Rees-Gay and Stephanie Badrock;
(f) “the Defendant’s TAR Review Team” means the following individuals: Aarti Maharaj, Alena Adams and Bradley White;
(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 +/-1.5% margin of error;
(k) “the Sample Review Process” means the process for reviewing Training Samples and Quality Control Samples set out at paragraphs 10 to 12 of this Order;
(l) “the Segregated TAR Process” means the technology assisted review as applied to the Segregated Documents;
(m) “Overturns” means each instance during the review of a Quality Control Sample when: (i) the TAR Program has 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”;
(n) “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 has coded as “Not Privileged” before the Sample Review Process;
(o) “the Overturn Threshold” is 2%;
(p) “the Batch Completion Criterion” is the point at which 90% of documents in a batch are categorised and the batch can be closed; and
(q) “the Supervising Legal Representative” means Mr Philip Punwar of Baker Botts LLP.
2. Paragraphs 15 to 20 of the 31 July Order shall not apply to the Segregated Documents dealt with pursuant to paragraphs 4 to 15 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. Forthwith, the Deloitte TAR Supervision Team shall prepare one batch of the Segregated Documents to which the Segregated TAR Process is to apply. The allocation of documents to this batch shall be carried out solely by the Deloitte TAR Supervision Team and by reference only to what they reasonably believe will result in expeditious review. Documents will not be batched by reference to their relevance to the issues in dispute.
5. The Deloitte TAR Supervision Team may in its discretion remove from the Segregated TAR Process any documents reasonably considered to be: (i) manifestly irrelevant (such as junk or spam files); or (ii) because of their content (including the absence of content) or file type, unsuitable for the TAR Program.
6. The batch shall be reviewed in accordance with the directions at paragraphs 7 to 15 below.
Sample generation
7. 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.
8. Whether any sample generated is a Training Sample or a Quality Control Sample is in the Deloitte TAR Supervision Team’s discretion.
9. 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
10. 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.
11. 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’ Review Team have coded a document as “Not Privileged”, the Deloitte TAR Supervision Team shall first provide both the review teams with a list of all inconsistently marked documents to see if the differences can be resolved within 24 hours. Where the review teams are unable to reach an agreement on a document within 24 hours, 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 Supervising Legal Representative who shall as soon as reasonably practicable code the document as either “Privileged” or “Not Privileged”; and
ii. The TAR Program shall apply the Supervising Legal Representative’s coding decision.
12. 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 11 above in relation to each document in the sample.
Completion of batch
13. Once: (a) the Batch Completion Criterion is met; 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) Release to the Supervising Legal Representative 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.
14. Notwithstanding paragraph 13 above, the Deloitte TAR Supervision Team may in their discretion continue causing the TAR Program to generate Training Samples and Quality Control Samples if they reasonably believe that review of those samples will enable the TAR Program to code documents in the batch which it has hitherto not coded.
15. Any documents which the TAR Program has not coded shall be held by the Deloitte TAR Supervision Team pending their manual review.
INADVERTENT DISCLOSURE OF PRIVILEGED MATERIAL
16. If, upon reviewing a document received pursuant to paragraph 13 (b) above, the Claimant’s lawyers conclude that: (i) the document is Privileged; and (ii) 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) release the document to the Supervising Legal Representative as if it had fallen within paragraph 13 (a) above;
(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
17. If, upon reviewing a document received pursuant to paragraph 13 (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 the Relativity document review platform.
AGREED VARIATIONS
18. The parties may agree variations to this Order in writing signed by both parties’ legal representatives.
19. 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
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
Date of issue: 6 May 2020
At: 12pm
