This order formalizes a structured Technology Assisted Review (TAR) process for the "Segregated Documents" in the ongoing litigation between the Danish Customs and Tax Administration (SKAT) and the Elysium Global entities, ensuring a supervised, objective methodology for privilege and relevance filtering.
How did the parties in SKATTEFORVALTNINGEN v ELYSIUM GLOBAL define the scope of the "Segregated Documents" review process?
The lawsuit involves a massive, multi-jurisdictional asset recovery claim brought by the Danish Customs and Tax Administration (SKAT) against Elysium Global (Dubai) Limited and Elysium Properties Limited. The core of the dispute concerns allegations of a complex tax fraud scheme, necessitating the review of millions of documents. The "Segregated Documents" represent a specific subset of materials previously identified as requiring heightened scrutiny due to potential privilege claims. The parties sought this order to establish a rigorous, technology-driven workflow to resolve these claims without further delaying the underlying civil proceedings.
The order mandates a specific administrative structure, including the appointment of a Supervising Legal Representative, Mr. Philip Punwar, to oversee the process. As specified in the order:
Forthwith, the Deloitte TAR Supervision Team shall prepare one batch of the Segregated Documents to which the Segregated TAR Process is to apply.
This process is a continuation of the procedural evolution seen in earlier stages of the litigation, such as SKAT v Elysium Global [2019] DIFC CFI 048 — Enforcement of disclosure and rejection of unsubstantiated privilege claims (29 January 2019). The current order ensures that the "Segregated TAR Process" operates under defined parameters, effectively bypassing previous, less efficient disclosure mechanisms.
Which judge and division oversaw the consent order in CFI 048/2018 on 6 May 2020?
This consent order was issued within the DIFC Court of First Instance. While the order references the foundational 31 July 2018 and 12 August 2018 orders of Justice Sir Jeremy Cooke, the 6 May 2020 order itself was issued by the Court by consent of the parties to facilitate the ongoing document review process.
What specific legal arguments and review team structures did the parties adopt to resolve privilege disputes in CFI 048/2018?
The parties, represented by their respective legal teams, agreed to a bifurcated review structure to mitigate the risk of bias and ensure compliance with the court’s previous directions on privilege. The Claimant (SKAT) appointed a specific TAR Review Team (Alasdair Urwin, Christopher Rees-Gay, and Stephanie Badrock), while the Defendants appointed their own team (Aarti Maharaj, Alena Adams, and Bradley White).
The parties argued that a predictive coding approach, supervised by Deloitte, would provide the most efficient and defensible method for handling the "Segregated Documents." The Claimant’s team was strictly bound by existing information barriers. As noted in the order:
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 structure ensures that the review process is not only technically sound but also adheres to the strict confidentiality and privilege protocols established early in the case.
What was the precise doctrinal issue the court had to resolve regarding the application of the 31 July Order to the Segregated Documents?
The court had to determine whether the existing, cumbersome disclosure protocols established in the 31 July 2018 order were appropriate for the specific subset of "Segregated Documents." The parties sought a departure from the general disclosure rules to implement a more specialized "Segregated TAR Process." The doctrinal issue centered on whether the court could authorize a deviation from the standard document review workflow in favor of a predictive coding model while maintaining the integrity of the privilege claims. The court resolved this by explicitly carving out these documents from the previous regime.
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.
How did the court establish the final coding decision for documents under the TAR Program?
The court adopted a rigorous "Sample Review Process" to ensure that the predictive coding software (Relativity) produced accurate results. The process involves generating "Training Samples" and "Quality Control Samples." The Deloitte TAR Supervision Team acts as the arbiter of the final coding, comparing the inputs from both the Claimant’s and Defendants’ review teams.
The methodology for resolving coding discrepancies is clearly defined:
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.
If the teams disagree, the order provides a 24-hour window for the teams to resolve the conflict themselves before further escalation.
Which specific DIFC RDC rules and prior orders were applied to the Segregated TAR Process?
The order relies heavily on the procedural framework established by the 31 July 2018 order (Justice Sir Jeremy Cooke) and the 12 August 2018 order. These foundational documents define the meaning of "Privileged" and set the information barriers for the Claimant’s review team. The current order functions as a specialized procedural overlay, utilizing the Relativity document review platform to manage the "Segregated Documents." It also incorporates the "Overturn Threshold" of 2%, which serves as a quality control metric for the TAR Program’s performance.
How did the court use the 31 July 2018 order to govern the conduct of the TAR review teams?
The 31 July 2018 order serves as the "constitution" for the document review in this case. The 6 May 2020 order utilizes it to define the roles of the "Privilege Search Team" (now the Deloitte TAR Supervision Team) and to enforce strict information barriers. By referencing the 31 July Order, the court ensures that the new TAR process does not inadvertently waive privilege or violate the confidentiality of the documents. The court specifically mandates that the review teams code documents as either "Privileged" or "Not Privileged," a binary classification that mirrors the definitions established in the earlier orders.
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”.
What was the disposition of the court regarding the costs and the handling of irrelevant documents?
The court granted the consent order, which includes specific instructions for the destruction of irrelevant documents and the allocation of costs. If the Claimant’s lawyers identify a document as irrelevant to the proceedings, they are mandated to destroy all copies immediately. Regarding the Supervising Legal Representative, Mr. Philip Punwar, the order provides:
The Supervising Legal Representative shall be entitled to his costs of complying with this Order as supervising legal representative.
General costs of the application were ordered as "costs in the case," meaning the ultimate liability for these costs will be determined at the conclusion of the trial.
How does this order change the practice of electronic discovery in complex DIFC litigation?
This order serves as a blueprint for practitioners handling high-volume, document-heavy litigation in the DIFC. By formalizing a "Segregated TAR Process," the court has signaled a willingness to move away from manual, line-by-line document review in favor of supervised, technology-assisted workflows. Future litigants should anticipate that the DIFC Court will expect parties to agree on predictive coding methodologies early in the disclosure phase, particularly when privilege claims are extensive. The use of a "Supervising Legal Representative" to act as a neutral arbiter in the TAR process is a significant development that reduces the burden on the court to resolve every minor coding dispute.
Where can I read the full judgment in SKATTEFORVALTNINGEN v ELYSIUM GLOBAL [2020] DIFC CFI 048?
The full text of the consent order is available on the DIFC Courts website: CFI 048/2018 Order (06 May 2020). A copy is also available via the CDN: DIFC_CFI-048-2018_20200506.txt.
Cases referred to in this judgment:
| Case | Citation | How used |
|---|---|---|
| SKAT v Elysium Global | [2018] DIFC CFI 048 | Foundation for privilege definitions and information barriers |
| SKAT v Elysium Global | [2018] DIFC CFI 048 | Foundation for document review protocols |
Legislation referenced:
- Rules of the DIFC Courts (RDC)
- Order of Justice Sir Jeremy Cooke dated 31 July 2018
- Order of Justice Sir Jeremy Cooke dated 12 August 2018
- Order of the DIFC Court dated 30 September 2019