This Consent Order establishes a comprehensive, court-sanctioned technical protocol for Technology Assisted Review (TAR) to manage the disclosure of millions of documents in the ongoing litigation between the Danish Customs and Tax Administration and the Elysium entities.
How does the Consent Order in CFI 048/2018 define the procedural framework for the disclosure of Deloitte Unsegregated Documents?
The lawsuit involves a massive document disclosure exercise between the Claimant, SKAT, and the Respondents, Elysium Global (Dubai) Limited and Elysium Properties Limited. Given the volume of material—referred to as "Deloitte Unsegregated Documents"—the parties sought a structured, technology-driven approach to manage the review process. The Order replaces previous procedural directions from July 2018 to ensure that the disclosure process is both efficient and compliant with the Court’s requirements regarding privilege.
The Order mandates a specific workflow involving the Deloitte TAR Supervision Team, which acts as the neutral arbiter for the predictive coding software hosted on the Relativity platform. The core of the dispute resolution mechanism for document categorization is defined by the following provision:
Paragraphs 24 and 25 of the 31 July Order shall be replaced in their entirety by paragraphs 3 to 20 of this Order.
This replacement ensures that the technical methodology for batching, sampling, and coding is governed by the new, granular rules set out in the June 2019 Order, rather than the older, less specific directions.
Which judge and division oversaw the issuance of the Consent Order in SKAT v Elysium Global?
The Consent Order was issued within the DIFC Courts’ Court of First Instance. While the Order itself is a product of party agreement, it functions as a formal judicial directive, building upon the foundational case management orders previously issued by Justice Sir Jeremy Cooke in the same proceedings.
What were the specific roles and legal arguments assigned to the TAR Review Teams for SKAT and the Elysium entities?
The parties established dedicated "TAR Review Teams" to handle the manual coding of document samples, which then inform the predictive coding software. The Claimant’s team consists of Chris Rees-Gay, Alasdair Unwin, and Safia Nasir, while the Defendants’ team comprises Aarti Maharaj, Michael Smith, and Clare Groom. The legal teams agreed to a strict protocol to ensure that the review process remains objective and that information barriers are maintained.
The teams are required to code documents as either "Privileged" or "Not Privileged." To ensure the integrity of the review, the Order mandates:
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.
This ensures that the review process does not inadvertently waive privilege or breach the confidentiality constraints established earlier in the litigation.
What legal question did the Court address regarding the finality of coding decisions in a predictive coding environment?
The Court had to resolve the doctrinal issue of how to handle "coding disputes" between the parties when the TAR software is used to categorize millions of documents. Specifically, the Court needed to determine a tie-breaking mechanism that would satisfy both the Claimant and the Defendants without requiring judicial intervention for every individual document. The resulting protocol establishes a hierarchy of decision-making that prioritizes the Defendants' coding in specific instances of disagreement, thereby streamlining the disclosure process.
How does the Deloitte TAR Supervision Team apply the predictive coding software to ensure accurate document categorization?
The reasoning behind the Order relies on a statistical sampling methodology. The Deloitte TAR Supervision Team is tasked with generating "Training Samples" and "Quality Control Samples" to teach the TAR Program how to categorize the larger batch of documents. The process is iterative, relying on the human review of these samples to refine the software's accuracy.
The judge approved a rigorous comparison process to finalize the coding decisions:
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.
This logic ensures that where there is consensus, the software adopts the human determination. Where there is a conflict, the Order provides a specific fallback, as noted in the following provision:
(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.
Which specific authorities and DIFC procedural rules were applied to structure this TAR protocol?
The Order is heavily grounded in the previous case management orders issued by Justice Sir Jeremy Cooke, specifically the 31 July 2018 Order and the 12 August 2018 Order. These earlier orders define the core concepts of "Privileged" documents and the "Privilege Search Team" (now the Deloitte TAR Supervision Team). The Order also utilizes the Relativity document review platform as the technical infrastructure for the TAR Program.
How did the Court utilize the 31 July 2018 and 12 August 2018 Orders to define the scope of the current disclosure exercise?
The Court used the 31 July 2018 Order to establish the definitions of "Deloitte Unsegregated Documents" and "Privilege." By incorporating these definitions by reference, the Court ensured continuity in the litigation. The 12 August 2018 Order is used specifically to further refine the definition of "Privileged" material, ensuring that the TAR Program’s output aligns with the Court’s established standards for legal professional privilege.
What was the disposition of the application and the specific orders regarding costs and document destruction?
The Court granted the application by consent. The Order mandates that the Deloitte TAR Supervision Team generate necessary samples to enable the TAR Program to function effectively:
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.
Furthermore, the Order includes a safeguard for irrelevant documents. If the Claimant’s lawyers identify a document as irrelevant, they are instructed to destroy it. Additionally, the Order provides for the remuneration of the Supervising Legal Representative, Mr. Philip Punwar of Baker Botts LLP, noting:
The Supervising Legal Representative shall be entitled to his costs of complying with this Order as supervising legal representative.
How does this Consent Order influence the practice of document disclosure in complex, high-volume DIFC litigation?
This Order serves as a blueprint for practitioners managing large-scale disclosure in the DIFC. It demonstrates that the Court is willing to endorse sophisticated, technology-driven workflows provided they are underpinned by clear, party-agreed protocols. Future litigants must anticipate that the Court will prioritize efficiency through predictive coding, provided that the parties can agree on a "Supervising Legal Representative" and a clear hierarchy for resolving coding disputes.
Where can I read the full judgment in SKAT v Elysium Global [2019] DIFC CFI 048?
The full text of the Consent Order is available on the DIFC Courts website: https://www.difccourts.ae/rules-decisions/judgments-orders/court-first-instance/cfi-0482018-skat-v-1-elysium-global-dubai-limited-2-elysium-properties-limited-10
CDN link: https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/court-first-instance/DIFC_CFI-048-2018_20190620.txt
Cases referred to in this judgment:
| Case | Citation | How used |
|---|---|---|
| 31 July Order | Order of Justice Sir Jeremy Cooke (31 July 2018) | Defines Deloitte Unsegregated Documents and Privilege |
| 12 August Order | Order of Justice Sir Jeremy Cooke (12 August 2018) | Further defines Privilege |
Legislation referenced:
- Rules of the DIFC Courts (RDC)
- 31 July 2018 Order (CFI 048/2018)
- 12 August 2018 Order (CFI 048/2018)