Before : |
Advocate Matthew John Thompson, Master of the Royal Court |
|||
Between |
Voisin Executors Limited (as Executor of the moveable estate of the Late John William Neal) |
Plaintiff |
|
|
And |
John Daniel Kelleher (former Curator of John William Neal) |
Defendant |
|
|
Advocate S. J. Young for the Plaintiff.
Advocate A. Kistler for the Defendant.
CONTENTS OF THE JUDGMENT
|
|
Paras |
1. |
Introduction |
1 |
2. |
Background |
2-9 |
3. |
Decision |
10-20 |
judgment
the master:
1. This judgment represents my written reasons in relation to the application for an extension of time for the filing of discovery by the defendant. Ordinarily an application for an extension of time would not result in written reasons but there are matters of general importance which it is appropriate to record.
2. The background to the present proceedings is set out in my judgment Voisin Executors Limited-v-Kelleher [2016] JRC 051 reported at paragraphs 2 to 14.
3. Following this judgment, on 19th April, 2016, directions were given in respect of discovery, witness statements and expert evidence. Discovery was required to be produced by 29th July, 2016.
4. By an Act of Court dated 21st June, 2016, the timetable set out in the act of court dated 19th April, 2016, was varied and the obligation on the parties to provide discovery was extended to 30th September, 2016.
5. It is also right to record that the defendant has issued a security for costs application against the plaintiff. However, that application has not been determined because the plaintiff for some time appears to have been engaged in the process of looking for litigation funding and also seeking directions from the Royal Court in relation to its on-going conduct of the present litigation.
6. I however made it clear when issuing directions on 19th April, 2016, that I expected the parties to progress forward with the question of discovery because of the length of time that had already passed since proceedings were issued despite the matters referred to in paragraph 5 above.
7. On 19th September, 2016, Carey Olsen on behalf of the defendant wrote to the plaintiff and to the Court notifying that an extension of time would be required. At that stage Carey Olsen were unable to specify how much more time was required. Also no detail was provided as to why an extension was required.
8. On 27th September, 2016, a hearing date for the defendant's summons for an extension of time was fixed for 11th October, 2016.
9. On 6th October, 2016, an affidavit was sworn by Advocate Hoare on behalf of the defendant setting out the detailed steps taken to date by the defendant to comply with his discovery obligations.
10. For the purposes of the present application I was satisfied by reference to the affidavit of Advocate Hoare that the defendant had been taking steps to comply with its discovery obligations save in one respect. When giving directions to the parties on 19th April, 2016, I encouraged the parties to talk to each other to resolve any difficulties in relation to inspection. However, it is clear that no discussions between the parties had taken place in relation to inspection at all. Yet, this is a case where the defendant acted as curator from 1999 until at least 2010 when he ceased to act as curator. The defendant during much of this period also acted as trustee, which trust held underlining companies with significant interests in Jersey immovable property. On any view this background means that the material to be reviewed for the defendant to meet his discovery obligation was going to be extensive and the task of producing it would be time consuming and complex.
11. In Crociani & Ors v Crociani & Ors [2015] JRC 103, in giving directions I made certain observations in relation to electronic discovery in complex disputes at paragraphs 41 to 47 as follows:-
"41. In relation to electronic discovery, I start by reference to the direction given in January when I required the parties to meet. The rationale for this was to look to agree the process of electronic discovery. This is because in larger cases (and this is clearly a larger case), there are a number of different ways a party might provide discovery of documentation held in electronic form. It can be a complex process depending on where documents are stored, the systems used to store documents and the number of parties, witnesses and countries involved. . In England, Practice Direction 31B has been issued which sets out the guidance to be followed in that jurisdiction. While that guidance arises out of a different set of rules, it is helpful (although not perfect) because it illustrates the sort of issues in a reasonably large case that parties have to tackle. What is important from the questionnaire is that it requires parties to communicate with each other about the electronic data they hold and how they propose to provide it to the other party. It was because of the importance of such communication taking place before discovery that I ordered the parties to meet in advance of discovery being provided. This may well be necessary in other cases in the future.
42. In the present case, because of the delays that have already occurred as of a result of the jurisdiction challenge, and because this is a family dispute, there is a certain level of mistrust between the parties. This mistrust meant that the concept of a meeting to agree a process for electronic discovery only met with partial success because the parties through their advisers at times fell into error by debating the discovery process by correspondence. This should be avoided in the future as far as is possible.
43. The parties at times also confused the obligation to agree a process for providing electronic discovery with the ambit of the discovery required. Parts of the correspondence therefore read more like requests for specific discovery than how parties were going to gather and exchange information held in electronic form. Again parties should try to avoid such an approach.
44. The first to fourth defendants also fell into error by suggesting it was not appropriate for Deloitte on behalf of the plaintiffs and Grant Thornton for the first to fourth defendants to talk to each other. I disagree. While it is for lawyers to meet and agree search terms to be used by any experts retained by them, because the lawyers by reference to the pleadings will be able to define the search terms required (possibly with the help of their own advisers), the same does not apply to the mechanics of how information is to be gathered, from what electronic devices and by what means. These are matters that experts can discuss directly with each other.
45. However, equally as Advocate Kelleher fairly stated, the discovery meeting and related correspondence was useful both in understanding the plaintiffs' expectations and in reviewing whether or not discovery obligations had been met. Nevertheless in future cases, while it may be helpful to set out in complex matters where discovery may be found, and the process of electronic discovery inevitably involves some analysis of the sources of documents, care should be taken to avoid a debate in correspondence or pre-emptive or premature specific discovery requests if agreement cannot be reached.
46. If there is significant disagreement between parties on the process to be followed the matter should be returned to the court for directions. Other areas of potential dispute, for example on the extent of search terms, may also be referred back to the Court. However they may resolve themselves on discovery and inspection. Much depends on the extent of the difference, and its importance to an issue. If an issue still remains the matter can be addressed on a specific discovery application if it is necessary to do so.
47. Matters were complicated in this case by the parties not meeting earlier and by appropriate support not being retained by the first to fourth defendants until relatively late in the day. For a case of this complexity, it is almost inevitable that some form of third party assistance to provide electronic discovery is going to be required and the first to fourth defendants should have realised that earlier."
12. These paragraphs bear repetition both in relation to the present case and more generally.
13. The present case is not dissimilar to Crociani in that there are significant amounts of documentation to be reviewed and a large amount of mistrust between the parties and others involved on one side or the other in relation to this dispute. Yet notwithstanding the Crociani judgment there has been no discussion between the parties about the most effective manner within which to provide discovery.
14. While Advocate Hoare has described in detail (and helpfully) the process carried out so far it is clear that search terms have been applied to different parts of the present and past electronic platforms maintained by Carey Olsen without any consultation with the plaintiff. The failure to consult means that in the future there is a significant risk of the plaintiff suggesting that the search terms used were either incomplete or were too restrictive, thus leading to further applications and delaying completion of the discovery process. To try to avoid such applications before the discovery process was completed, I therefore ordered both parties to disclose to the other the details of any electronic searches carried out and the search terms used at this stage.
15. I further directed the parties to meet to discuss issues of inspection and any issues arising out of the search terms I ordered to be disclosed.
16. In respect of the obligation to exchange lists of documents, while I granted an extension of time because I was satisfied that efforts were being made by the defendant which required an extension, I granted a final order save in respect of one area to be searched. The effect of granting a final order means that I will be sympathetic to granting unless orders if any party is not ready to exchange documents within the timeframe permitted and seeks a further extension of time. I also granted a final order to ensure compliance with the timetable I had set, bearing in mind the slow progress of this case to date.
17. The one exception related to a search of Carey Olsen's email archive system called Mimecast. I accepted the defendant's submission that this email archiving system was being searched out of an abundance of caution due to the length of time the dispute covered and because it could not be guaranteed that all of the relevant e-mails, which should be manually saved to the specific client matter file on Carey Olsen's document management systems, were so saved. As the Mimecast system was being searched out of an abundance of caution, I did not consider it appropriate to make a final order in respect of this search.
18. I also gave longer to carry out this search because I wanted the defendant to focus on the primary sources of documents which it intended to produce namely hard copy files and files held on Carey Olsen's current electronic document management system. I also encouraged the defendant to provide discovery in tranches rather than providing everything on 2nd December, 2016. This required the defendant to consolidate the hard copy documents it had found (which had all been scanned onto a system designed to identify documents for the purposes of making discovery of electronic documents) so that a chronological list of documents could be then reviewed in stages and released in tranches to the plaintiff. The reviews to be carried out concern checking whether documents identified to be listed had been correctly identified, reviewing any questions of privilege or where there was a question as to whether or not the particular document or category of documents should be disclosed.
19. Finally in respect of costs, I ordered the defendant to bear his own costs of the application between 19th September and 6th October, 2016, including the costs of the preparation of the affidavit of Advocate Hoare because the defendant was seeking the indulgence of the court for an extension of time and because the defendant had not previously communicated with the plaintiff in respect of discovery. In respect of the plaintiff's costs, for the same period, I ordered plaintiff's costs in the cause.
20. In respect of costs after 6th October, 2016, until the hearing on 11th October, 2016, I ordered costs in the cause. While I had granted the extension sought, given the defendant was seeking the indulgence of the court it was not right at this stage for the defendant to recover its costs. Likewise I did not feel it appropriate to deprive the plaintiff of its costs although it had lost the application for an extension of time, but it was ready to exchange its list of documents. Rather I felt the justice of the case in respect of costs after 6th October, 2016, should depend on who was ultimately successful at trial.
Authorities