Genius Sports Technology Limited & Ors v Soft Construct (Malta) Limited & Ors

In a specific disclosure regime, the identification of custodians must proceed on a deliberately low, over-inclusive threshold. The producing party must consider the range of possible custodians liable to hold relevant material, rather than only key custodians known to hold documents likely to be relevant. Material held by possible custodians should be included where this can be done electronically at minimal cost. Exclusion requires a reasoned and justified explanation that further searching would be disproportionately expensive and would not materially increase responsive disclosure, having regard to duplication, the nature of the documents and practical incorporation difficulties.

This further ruling supplemented an earlier ruling establishing a specific disclosure regime in proceedings concerning the parties’ dispute. The court was asked to resolve disagreement about how custodians, repositories and document collections should be identified for searching. The defendants relied on the approach in Goodale v Ministry of Justice, [2009] EWHC 841 (QB), while the claimants argued that it imposed too narrow a threshold.

The central issue was the proper interpretation and operation of the custodian-identification requirement within the disclosure regime.

1. The Goodale approach was too narrow. The court held that a requirement to identify only “key” custodians known to hold documents likely to be relevant did not fit the specific disclosure regime. The concept of “key” custodians had no place in that regime, and knowledge of the documents held could become material only after proper inquiry.
2. Possible custodians must initially be considered. Each producing party had to apply its mind to the range of possible, rather than merely likely, custodians liable to hold relevant material under the Peruvian Guano test. The threshold was intentionally low and required an approach erring on the side of over-inclusion.
3. Electronic inclusion was required where proportionate. If material held by possible custodians could easily and at minimal cost be incorporated into the electronically searched document universe, it should be included and the custodian issue would then be exhausted.
4. Exclusion required justification. Where the additional searching risked disproportionate expenditure of time or money, possible custodians could be excluded only with an explanation and justification, supported by the solicitor’s statement or affidavit, that the additional material would not materially add to responsive disclosure. The explanation had to address potential duplication, the nature of the documents likely to be held and the difficulties of incorporating the material into the searched universe.
5. The clarification was incorporated into the ruling governing the disclosure regime.

This was a further first-instance ruling supplemental to the court’s earlier ruling in the same proceedings, reported at [2022] EWHC 2637 (Ch). The present ruling resolved the remaining issue on the papers.