Federal Republic of Nigeria v JP Morgan Chase Bank, NA

Extended disclosure must be directed to the issues in the proceedings and must remain reasonable and proportionate. The court may require searches of additional custodians where their knowledge or documents are likely to bear materially on the issues, including knowledge held by personnel in different offices or compliance functions. Seniority may be relevant where senior personnel could hold distinctive summaries of organisational decisions or possess authority to act. The cost of further disclosure is assessed against the importance and value of the claim, together with the likely evidential benefit. Where a category of documents falls within the original disclosure order, the court may order further searches under the compliance provisions of the Disclosure Pilot.

The Federal Republic of Nigeria sought further disclosure from JP Morgan Chase Bank in proceedings concerning payments totalling approximately $875 million from a Nigerian government depository account to Malabu Oil and Gas Limited. The underlying claim alleges breach of the Quincecare Duty in relation to a 2013 payment.

The application concerned documents relating to compliance investigations, watchlist and interdiction recommendations, compliance policies, and concerns held by senior bank personnel. The central questions were whether the requested material fell within existing Issues for Disclosure 12 and 13 and, if so, whether further searches and production were reasonable and proportionate.

1. Application granted in part. The court held that the requested material had to be considered by reference to Issues for Disclosure 12 and 13, namely what the bank knew and what it did in response.
2. The Disclosure Pilot required disclosure to be focused on the issues and no wider than reasonable and proportionate. The relevant factors included the complexity and importance of the case, the likelihood that documents would have probative value, the volume and accessibility of documents, cost, the parties’ financial position, and the need for a fair and efficient trial.
3. The sources underlying the watchlist and interdiction recommendations were materially relevant. They could show both the bank’s knowledge and the extent of its enquiries, which was relevant to the alleged gross negligence. The existing search had focused on the EMEA database and had not adequately searched the relevant US compliance sources.
4. The documents of Dawn Edwards and Matthew Willard were to be searched as additional custodians. Dawn Edwards had played an active compliance role, while Matthew Willard had approved a recommendation and participated in later compliance meetings. Jessica Gomel was not added because the evidence did not show that a further search of her documents was likely to produce material not captured elsewhere.
5. Pamela Johnson and Lester Pataki were also to be added as custodians. Their senior positions and contemporaneous involvement in reviewing the transaction and compliance concerns made it likely that they held relevant documents. John Gibbons, whom the bank accepted should be a custodian, was to be searched for the full date range sought.
6. Policies and procedures relating to the watchlist and interdiction systems were relevant to breach and causation and fell within the original disclosure order. The bank was required to search the relevant document population using appropriate keywords.
7. The bank agreed to disclose two readily available reports attached to an already disclosed email. No order was therefore required on that part of the application. The previously disclosed document also required no further order. The additional disclosure costs were proportionate in light of the value and importance of the claim.