Vilca & 21 Ors v Xstrata Ltd & Anor

Disclosure must be approached by reference to what is reasonable and proportionate for a fair trial. The value of the claims and the parties’ costs are relevant, but they do not determine proportionality. Recoverable costs, rather than the costs of an unnecessarily expensive litigation strategy, are the appropriate comparison. Serious allegations involving deaths or grave injuries weigh heavily in the balance. A staged process may be appropriate in complex electronic disclosure. Email searches should ordinarily precede wider searches where relevant documents are likely to be attached to, or referred to in, emails.

The claimants, 22 Peruvian protestors, brought claims concerning deaths, serious injuries and alleged police violence connected with protests at the Tintaya mine. They alleged that the defendants incurred legal responsibility through participation, facilitation, negligence or vicarious liability. At a case-management hearing, the claimants sought extensive further disclosure, including electronic searches, additional custodians, hard-copy searches and documents held by companies within the Glencore group.

The central issues were whether the requested searches were relevant and proportionate, whether disclosure should proceed in stages, and whether unresolved questions concerning the defendants’ control of documents should first be addressed.

1. Disclosure and proportionality. The applications were determined pragmatically in the context of the impending trial. The comparison between claim value and costs was relevant, but should use likely recoverable costs. A disproportionate result should not be created merely because a multinational defendant chose an expensive legal service. The loss of two lives and serious injuries were also weighty considerations, despite the modest damages said to be recoverable under Peruvian principles (paras [23]-[30]).
2. Electronic searches. A simple percentage analysis was inadequate where potentially seriously culpable conduct might be revealed by only a small number of documents. Searches for terms suggesting protest, shooting or arrest were therefore justified. The court also directed searches concerning “Hormigas” and the alleged “Team HA”, and searches of relevant custodians’ emails. Wider searches of fileservers were generally premature where the likely relevant material would emerge from email traffic (paras [41], [54]-[57], [61]-[70], [103]-[104]).
3. Scope of disclosure. The court allowed or accepted searches concerning relevant contingency planning, sustainability documents, administrative offices and the “Ants in Action” team. It declined, at that stage, searches of secretaries’ documents, certain senior custodians’ shared folders and some BURRT material where relevance or proportionality had not been established (paras [52]-[53], [77]-[78], [85]-[97]).
4. Control issue and trial date. The unresolved applications involving documents held by other companies were adjourned so that the corporate entities could reconsider whether the control issue would be maintained. The June trial was not fit to proceed because disclosure remained incomplete. A further trial date was deferred until the electronic disclosure process and the control issue had been clarified (paras [99]-[107]).