IBM United Kingdom Limited v LzLabs GmbH & Ors

Applications to vary or supplement an extended disclosure order require a focused, evidence-based justification. A party seeking further searches for alleged non-compliance must show that the order is appropriate, reasonable and proportionate. A party seeking to vary a compliant order must additionally show that the variation is necessary for the just disposal of the proceedings.

The court should generally respect an agreed and approved disclosure review document. A later preference for wider searches is insufficient. Further disclosure may nevertheless be ordered where the existing approach is too narrow and the documents are within the disclosing party’s control and materially capable of supporting an issue.

The claimant brought contractual and related claims concerning the alleged misuse of IBM mainframe software in developing the defendants’ software platform. The proceedings were listed for a lengthy liability trial.

The defendants applied to revise the trial timetable, obtain further disclosure from specified custodians and repositories, require clarification of privilege claims, and restrict the claimant’s sharing of material with a person involved in related proceedings. The judgment determined those procedural applications, including the applicable thresholds under the disclosure provisions.

1. Timetable. The court revised the procedural timetable to accommodate the claimant’s extended time for technical particulars while retaining the trial date. The defendants’ factual and expert evidence was rescheduled, with staged expert discussions and joint statements.
2. Further disclosure. Under paragraph 17 of PD57AD, the court may require further searches where there has been, or may have been, inadequate compliance. Under paragraph 18, variation of a compliant order requires a more onerous showing: the variation must be reasonable and proportionate and necessary for the just disposal of the proceedings. The distinction was explained in Agents’ Mutual Ltd v Gascoigne Halman Ltd [2019] EWHC 3104 (Ch).
3. The claimant’s approach to Mr Anzani’s documents was too narrow. Once those documents were within the claimant’s possession, custody, power and control, relevant responsive documents were disclosable regardless of the capacity in which Mr Anzani acted. Further review was therefore ordered for disclosure issues 4 and 21. Agreed searches concerning specified former employees were also ordered.
4. The applications to extend the Issue 4 date range, search the central server and other repositories, add further custodians, and obtain further privilege information were dismissed. The agreed disclosure order was presumed to reflect a reasonable and proportionate process. Speculation, a desire to test the claimant’s case beyond the material limitation date, or a general suspicion about privilege did not justify variation.
5. The application restricting disclosure to Mr Anzani was dismissed. The alleged breaches concerning collateral use and confidentiality were regrettable but did not establish a justifiable concern warranting the proposed order.