GENIUS SPORTS TECHNOLOGIES LIMITED & Ors v SOFT CONSTRUCT (MALTA) LIMITED & Ors

Where electronic filtering creates a real risk that relevant documents will be excluded without human review, the court may order a bespoke disclosure regime based on removing only unequivocally irrelevant and privileged material. Such an order is appropriate where it will not oppress a party, privilege can be protected to the level achieved by standard disclosure, and confidential information can be safeguarded. The receiving party may then review the wider document corpus using its own electronic processes. The court must address the scope of the searchable universe, privilege review, confidentiality, auditability and access controls. Standard disclosure remains the default under the Civil Procedure Rules 1998, but the court may direct otherwise where material developments show that the standard regime is unsuitable or disproportionate.

The ruling arose from a second case management conference in competition and intellectual property proceedings. A previous order had directed disclosure under the standard Civil Procedure Rules 1998 Part 31 and Practice Direction 51U model. The parties’ disclosure review documents remained disputed, and the court was concerned that electronic filtering based on issues and models could exclude relevant documents without qualified human review.

The claimants opposed a proposed bespoke regime and challenged the court’s jurisdiction to impose it. The central questions were whether the court could revisit the standard disclosure order and whether a broader electronic production process could be made proportionately while protecting privilege and confidentiality.

1. Order made. The court ordered a bespoke disclosure regime in place of the standard regime.
2. The regime was justified where there was a real risk that standard issue-based electronic disclosure would miss relevant documents; where the process would not oppress any party; where privileged material could be protected to the level achieved by standard disclosure; and where confidential material could be appropriately protected.
3. Each producing party was required to identify custodians, repositories, collections and relevant date ranges in an affidavit or witness statement. The searchable universe was to be defined inclusively, with unresolved disputes referred to the court. The disclosure review was to filter out documents irrelevant on the Peruvian Guano test, rather than attempt electronically to identify all relevant documents. The disclosure review documents were to guide the process informally, and any disputed formulation was to be resolved in favour of the wider formulation.
4. After the relevance filtering, the producing party was required to conduct a separate process directed solely to identifying and removing privileged material. Confidential material was not to be filtered out. It was to be disclosed subject to the obligations under Civil Procedure Rules 1998 rule 31.22, supplemented by auditable access records, undertakings, advance identification of users and approval by a King’s Counsel for access by persons other than external counsel and experts.
5. The court rejected the contention that the international location of parties made the protective regime ineffective. Any further inner confidentiality ring would require clear justification and should be confined to material requiring private court proceedings.
6. The court had jurisdiction to revisit its earlier direction applying Practice Direction 51U. Standard disclosure under Civil Procedure Rules 1998 rules 31.5(1)(a) and 31.6 was the default, but the court could direct otherwise where material developments demonstrated that the standard regime would be unsatisfactory or disproportionately costly.
7. The parties were directed to draw up an order reflecting the ruling.

The judgment records an earlier case management decision in the same proceedings under [2022] EWHC 2308 (Ch), followed by the second case management conference. No appellate history is stated.