This consent order formalizes the production of internal Deloitte Touche Tohmatsu policy documents within the ongoing professional negligence litigation, establishing strict confidentiality protocols to prevent public disclosure.
What specific documents were the Claimants seeking from Deloitte & Touche (M.E.) in the CFI-027-2016 proceedings?
The dispute arises from a professional negligence claim brought by Nest Investments Holding Lebanon S.A.L. and ten other claimants against Deloitte & Touche (M.E.) and Joseph El Fadl. The litigation, which has seen multiple procedural developments, including NEST INVESTMENTS HOLDING LEBANON v DELOITTE & TOUCHE [2017] DIFC CFI 027 — Procedural extension for jurisdiction challenge (03 January 2017), centers on the Claimants' efforts to secure internal documentation to substantiate their claims.
Following a formal request for documents dated 3 March 2017, the Claimants sought access to internal policy documents belonging to the global network entity, Deloitte Touche Tohmatsu ("DTT"). The parties eventually reached a consensus regarding the production of these materials, which are identified in the Schedule to the Consent Order. The core of the dispute at this stage was not the relevance of the documents, but the conditions under which such sensitive internal corporate policies could be disclosed without compromising the global firm's proprietary information.
Which judicial officer presided over the issuance of the consent order in CFI-027-2016 on 4 July 2017?
The consent order was issued by Judicial Officer Maha Al Mehairi of the DIFC Courts, Court of First Instance. The order was formally issued at 3:00 PM on 4 July 2017, following the agreement reached between the Claimants and the First Defendant, Deloitte & Touche (M.E.).
What were the respective positions of the Claimants and Deloitte & Touche (M.E.) regarding the disclosure of DTT policy documents?
The Claimants maintained that the production of DTT policy documents was essential for the progression of their case, arguing that these internal guidelines were necessary to establish the standard of care or the scope of professional obligations owed by the Defendants. Conversely, the First Defendant, Deloitte & Touche (M.E.), while agreeing to produce the requested materials, sought to impose rigorous safeguards to ensure that the documents remained protected from public scrutiny and third-party access. The resulting consent order reflects a compromise where the First Defendant provided the documents subject to stringent confidentiality and redaction requirements, effectively balancing the Claimants' need for evidence with the Defendant's interest in protecting internal corporate policies.
What was the precise legal question regarding the scope of RDC 28.64 that the Court had to address in this consent order?
The Court had to determine whether the standard protections afforded by RDC 28.64—which typically limit the use of disclosed documents to the purpose of the proceedings—were sufficient for the specific nature of the DTT policy documents, or if additional, bespoke restrictions were required. Specifically, the Court addressed whether the "implied undertaking" of confidentiality under the Rules of the DIFC Courts would persist even if the documents were read in open court or referenced in public filings. The legal question was how to reconcile the principle of open justice with the necessity of maintaining the confidentiality of sensitive internal corporate policies that were not intended for public consumption.
How did Judicial Officer Maha Al Mehairi apply the principles of confidentiality to the production of the DTT policies?
The Court adopted a restrictive approach to the handling of the produced documents, ensuring that the confidentiality obligations were explicitly extended beyond the standard RDC 28.64 requirements. The reasoning focused on preventing any "leakage" of the policies into the public domain, even in the event of a public hearing.
The restrictions requiring produced documents to be used only for the purpose of the proceedings under RDC 28.64 shall continue to apply to the Claimants in respect of the Policies even if any of them are read to or by the Court, or referred to, at a hearing which has been held in public, and the Claimants shall not provide the Policies to anyone other than the lawyers acting for them in these proceedings.
By formalizing these terms, the Court ensured that the documents remained "for eyes only" for the legal teams involved, effectively creating a "ring of confidentiality" that survives the public nature of court proceedings.
Which specific DIFC Rules of Court were applied to govern the production and confidentiality of the DTT documents?
The primary authority governing the production of these documents is RDC 28.64. This rule provides the framework for the "use of documents disclosed," stipulating that a party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed. The Court utilized this rule as the foundation for the consent order, while simultaneously expanding its application through the specific terms agreed upon by the parties to address the sensitive nature of the DTT policies.
How did the Court utilize the RDC framework to ensure the protection of the DTT policies from public record?
The Court utilized the flexibility inherent in the RDC to tailor the disclosure process. By incorporating the requirements of RDC 28.64 into a bespoke consent order, the Court mandated that:
1. The Claimants are strictly prohibited from sharing the policies with anyone other than their legal counsel.
2. Third parties are explicitly barred from obtaining copies of the policies.
3. Any public court documents, including judgments, must be redacted to omit references to the contents of the policies.
This approach demonstrates the Court's willingness to use its procedural powers to protect commercially sensitive information while allowing the litigation to proceed.
What was the final disposition of the application regarding the production of documents in CFI-027-2016?
The Court granted the consent order as requested by the parties. The First Defendant was ordered to provide the specified policy documents to the Claimants, subject to the aforementioned confidentiality and redaction restrictions. The Court made no order as to costs, meaning each party bore their own legal expenses associated with this specific procedural application. This order effectively resolved the document production dispute between the parties as of July 2017, allowing the case to move toward subsequent stages, such as the dismissal of strike-out and joinder applications (12 February 2018).
How does this consent order influence the handling of sensitive corporate documents in future DIFC professional negligence litigation?
This order serves as a practical blueprint for practitioners dealing with the disclosure of sensitive internal corporate policies. It highlights that parties should not rely solely on the general protections of RDC 28.64 when dealing with highly confidential materials. Instead, practitioners should proactively negotiate specific consent orders that explicitly address:
- The survival of confidentiality obligations after public hearings.
- The prohibition of third-party access.
- Mandatory redaction protocols for public filings.
This case underscores the importance of drafting precise confidentiality regimes at the disclosure stage to avoid future disputes over the public availability of sensitive evidence.
Where can I read the full judgment in Nest Investments Holding Lebanon S.A.L. & others v Deloitte and Touche (M.E.) & Joseph El Fadl [2017] DIFC CFI 027?
The full text of the consent order can be accessed via the DIFC Courts website: https://www.difccourts.ae/rules-decisions/judgments-orders/court-first-instance/nest-investments-holding-lebanon-sl-others-v-deloitte-and-touche-me-joseph-el-fadl or via the CDN link: https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/court-first-instance/DIFC_CFI_Nest_Investments_Holding_Lebanon_S_A_L_others_v_Deloitte_and_Touche_M_E_20170704.txt
Cases referred to in this judgment:
| Case | Citation | How used |
|---|---|---|
| N/A | N/A | N/A |
Legislation referenced:
- Rules of the DIFC Courts (RDC) 28.64