Eurasian Natural Resources Corporation Limited v Dechert LLP & Ors

Under the Disclosure Pilot, disclosure must remain directed to the issues and be reasonable and proportionate. A Model D order requires a reasonable and proportionate search for documents likely to support or adversely affect a party’s case. Search terms and connectors should therefore be assessed against the issues, the likely evidential value of documents, and the burden of searching.

Paragraph 16.2 of Practice Direction 51U ordinarily requires a list identifying each redacted document and the basis of redaction, although documents may be grouped and coded. A further order will be made only where it is reasonable and proportionate. The court may decline to require further particularisation where the exercise would be costly and of little practical value.

The defendants sought specific disclosure in proceedings brought by Eurasian Natural Resources Corporation Limited against its former solicitors and a former partner. The application concerned the adequacy of search terms and connectors, and the sufficiency of the claimant’s explanations for redactions and withheld material.

The proceedings were subject to a pre-existing standard disclosure order, later treated as an order for Model D disclosure under the Disclosure Pilot. The court also considered whether paragraph 16.2 of Practice Direction 51U applied to the redaction process and what level of particularisation it required. The judgment determined the search-term and privilege issues; further matters were reserved for a subsequent written judgment.

1. Search terms. The defendants had not generally shown that the claimant’s use of connectors made its searches unreasonable or disproportionate. The court took account of the issues for disclosure, the extensive disclosure already undertaken, the large common pool of documents, and the fact that the trial did not require a reinvestigation of alleged underlying wrongdoing.
2. Two search terms had to be run without the Board Terms connectors: “Protector Services” and “PSG”, because encrypted devices might have been used to obstruct the investigation; and “Shawn McCormick”, because the connectors reduced the results substantially and his involvement had been treated as a red flag. “Falsify”, “falsification” and “forge” also had to be searched on a stand-alone basis, subject to excluding documents sent to or from Tess Forge. The search for “Hollingsworth” was to be conducted without restricting it to the specific name previously used.
3. The court rejected the proposed additional or extended searches for “magic”, “magician”, “Findlay”, “Trevelyan” and other terms, and declined to extend the relevant period beyond June 2013. The searches already conducted, together with manual review, were adequate and further searching would not be reasonable and proportionate.
4. Disclosure Pilot. The Pilot applied in principle to extant proceedings even where the disclosure order pre-dated its commencement. Paragraph 16 did not generally disturb the earlier order, but its requirements were relevant when assessing whether there had been adequate compliance. The court followed the approach in UTB LLC v Sheffield United [2019] EWHC 914 (Ch), including the need to interpret the Pilot so that it operated effectively where disclosure had already been ordered.
5. Ordinarily, paragraph 16.2 required a list of redacted documents identifying the reason for each redaction, namely irrelevance and confidentiality or privilege. Documents could be grouped, numbered and assigned codes, provided that a legal representative with control of disclosure confirmed the applicable basis. A further clear explanation might be required where the basis was not apparent.
6. The defendants had not established a systematic failure in the claimant’s privilege review. Although some mistakes existed, they were proportionate to an exercise involving approximately 260,000 reviewed documents. Requiring a further redaction schedule would be expensive and of limited utility. The order sought under paragraph 11 was therefore refused.