This consent order establishes a technical protocol for the handling of "Composite Documents" within the Relativity review platform, allowing for the partial disclosure of non-privileged information while maintaining strict confidentiality over privileged segments.
How does the consent order in SKATTEFORVALTNINGEN v ELYSIUM GLOBAL [2020] DIFC CFI 048 define and manage the disclosure of 'Composite Documents' containing privileged information?
The order addresses the practical challenge of managing electronic files that contain multiple distinct parts, such as email chains or scanned bundles, where only some portions are protected by legal professional privilege. By defining these as "Composite Documents," the court provides a mechanism to avoid the binary choice of either withholding an entire document or waiving privilege over the whole. The protocol mandates that reviewers flag such items as “Privilege – Redacted,” apply redactions via the Relativity platform, and then treat the remaining non-privileged content as standard disclosable material.
Documents that are coded “Privilege – Redacted” shall be treated as if they had been coded “Not Privileged” and Deloitte may release such documents to the Claimant on the same terms and in the same manner as it releases documents coded “Not Privileged”.
This approach ensures that the Claimant, SKATTEFORVALTNINGEN, receives relevant, non-privileged information without delay, while the Defendants, Elysium Global (Dubai) Limited and Elysium Properties Limited, maintain the integrity of their privileged communications. The order further specifies that the release must be executed with technical precision to prevent the Claimant from accessing the underlying redacted content.
When Deloitte releases a document which contains redactions to the Claimant, Deloitte must ensure that the document is released in such a way and such a manner that the Claimant is unable to see the contents of any redacted part of the document.
For further context on the procedural history of this complex asset recovery litigation, see SKAT v Elysium Global [2019] DIFC CFI 048 — Enforcement of disclosure and rejection of unsubstantiated privilege claims (29 January 2019).
Which judicial authority or oversight mechanism was established to manage the redaction process in the CFI 048/2018 consent order?
The order was issued by the DIFC Court of First Instance on 07 December 2020. While the order itself is a consent-based procedural instrument, it relies heavily on the ongoing oversight of the "Supervising Legal Representative," identified as Mr. Philip Punwar of Baker Botts LLP. This role is central to the dispute resolution mechanism established by the order, ensuring that if the parties cannot agree on the extent of redactions or the classification of a document as a "Composite Document," the Supervising Legal Representative acts as the primary arbiter before any formal application to the Court is required.
What specific legal arguments and procedural safeguards did the parties negotiate regarding the handling of inadvertently disclosed or irrelevant material?
The parties sought to mitigate the risks associated with large-scale electronic disclosure by including specific "claw-back" and destruction provisions. The Defendants argued for, and the Claimant accepted, a strict protocol for instances where privileged material might be inadvertently released. Under paragraph 10, if the Claimant’s lawyers identify a document as privileged that was provided in error, they are obligated to immediately notify the Defendants, return the document to the control of Deloitte (the Privilege Search Team), and destroy all copies.
Furthermore, the parties addressed the issue of irrelevant material. To protect the privacy and commercial interests of the Defendants, the order mandates that if the Claimant’s lawyers determine a received document is irrelevant to the proceedings or related subject matter, they must refrain from providing it to the Claimant and must destroy all physical and electronic copies.
If, upon reviewing a document received pursuant to 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 Relativity.
What was the precise doctrinal issue the court had to resolve regarding the intersection of privilege and electronic disclosure in this case?
The court was tasked with resolving the tension between the duty of full and frank disclosure and the absolute right to maintain legal professional privilege in the context of high-volume electronic discovery. The doctrinal issue centered on whether the DIFC Court could mandate a "redaction-first" approach for documents that are technically indivisible in a database but legally divisible in content. By formalizing the treatment of "Composite Documents," the court clarified that the duty to disclose does not extend to privileged segments of a document, even if the document as a whole is not privileged. This effectively prevents the "all-or-nothing" approach that often leads to excessive withholding of documents or, conversely, the accidental waiver of privilege.
How did the court apply the existing TAR (Technology Assisted Review) framework to the new redaction protocol?
The court explicitly limited the scope of this order to ensure it did not interfere with the established Technology Assisted Review (TAR) protocols previously ordered by the court. By excluding "Training Samples" and "Quality Control Samples" from the redaction protocol, the court preserved the statistical integrity of the TAR process.
This Order does not apply to the review of any document as part of a Training Sample or Quality Control Sample under the TAR Orders.
This reasoning ensures that the machine-learning models used to categorize the vast volume of documents in this case remain consistent. If redactions were applied to the training sets, it could skew the predictive coding results. Therefore, the judge (via the consent order) created a clear boundary: the redaction protocol applies to the manual review and final disclosure stages, but not to the algorithmic training phase.
Which specific DIFC Court orders and procedural definitions were incorporated into this consent order?
The order incorporates several foundational documents from the CFI 048/2018 litigation, specifically:
- The Order of Justice Sir Jeremy Cooke dated 31 July 2018 (which defined the Privilege Search Team and the scope of privilege).
- The Order of Justice Sir Jeremy Cooke dated 12 August 2018 (which further defined "Privileged" and relevant flags).
- The TAR Consent Orders dated 20 June 2019 and 6 May 2020.
These references ensure that the definitions of "Privilege Review Team," "Relativity," and "Privileged" remain consistent across the entire lifecycle of the case. By anchoring the new order to these specific prior rulings, the court maintains a unified procedural framework, preventing the parties from re-litigating definitions that were settled in earlier stages of the disclosure process.
How did the court utilize the role of the Supervising Legal Representative to ensure compliance with the redaction protocol?
The Supervising Legal Representative, Mr. Philip Punwar, is granted broad authority to oversee the redaction process. The order provides that the protocol applies regardless of who is performing the review—whether it is the Defendants, the Privilege Review Team, or the Supervising Legal Representative himself.
For the avoidance of doubt, this Order applies whether the document is being reviewed by the Defendants, by the Privilege Review Team or by the Supervising Legal Representative.
This ensures that the standard for redaction is uniform across all tiers of the document review process. Furthermore, the order provides for the costs of the Supervising Legal Representative, acknowledging the significant administrative burden of overseeing these complex redaction disputes.
The Supervising Legal Representative shall be entitled to his costs of complying with this Order as supervising legal representative.
What was the final disposition of the application, and how were costs allocated?
The Court granted the order by consent, effectively adopting the protocol proposed by the parties. The disposition confirms that the protocol is immediately effective for all future reviews on the Relativity platform. Regarding costs, the order specifies that costs are to be "costs in the case," meaning the ultimate liability for these costs will be determined at the conclusion of the substantive proceedings, depending on the final judgment. Additionally, the order includes a "Liberty to Apply" clause, allowing the parties to return to the court should the redaction protocol prove insufficient or if new disputes arise regarding the application of the redaction rules.
The parties may agree variations to this Order in writing signed by both parties’ legal representatives. LIBERTY TO APPLY
What are the wider implications of this order for practitioners managing large-scale electronic disclosure in the DIFC?
This order provides a blueprint for managing "Composite Documents" in complex litigation, which is a common pain point in document-heavy cases. By formalizing the redaction process for email chains and scanned files, the court has provided a mechanism that reduces the need for constant judicial intervention. Practitioners should note that the court favors a collaborative approach—using a Supervising Legal Representative to resolve disputes before they reach the bench. This case serves as a precedent for how to integrate manual redaction protocols into an existing TAR-heavy disclosure environment without compromising the statistical validity of the review. Future litigants should anticipate that the DIFC Court will expect similar protocols to be in place for any case involving significant electronic discovery.
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 official DIFC Courts website: https://www.difccourts.ae/rules-decisions/judgments-orders/court-first-instance/cfi-048-2018-skatteforvaltningen-the-danish-customs-and-tax-administration-v-1-elysium-global-dubai-limited-2-elysium-properties-2 or via the CDN link: https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/court-first-instance/DIFC_CFI-048-2018_20201207.txt.
Cases referred to in this judgment:
| Case | Citation | How used |
|---|---|---|
| SKAT v Elysium Global | [2018] DIFC CFI 048 | Procedural foundation for privilege and TAR definitions |
Legislation referenced:
- DIFC Court Rules (RDC)
- Order of Justice Sir Jeremy Cooke (31 July 2018)
- Order of Justice Sir Jeremy Cooke (12 August 2018)
- TAR Consent Orders (20 June 2019 and 6 May 2020)