The Federal Deposit Insurance Corporation v Barclays Bank PLC & Ors

Applications for further disclosure or disclosure-related information must be assessed by reference to proportionality, the present evidential state of the case and the likely costs and benefits of the proposed exercise.

The court will not ordinarily require defendants to audit their previous disclosure, formulate the claimant’s requests, or undertake open-ended searches before the claimant has reviewed the available material and made focused requests. In complex litigation, parties must co-operate substantively in correspondence. Expert-led discussions should precede applications concerning extensive transactional data where relevance, date range and burden remain disputed.

The claimant, as receiver for 19 closed US banks, brought claims alleging suppression of USD LIBOR, collusion, unlawful information exchange and related liability under competition law and US tort law. The proceedings involved extensive disclosure derived from US proceedings and regulatory investigations.

At the fourth case management conference the claimant sought orders concerning four key disclosure categories, identification of participants in voice recordings, transactional data, third-party disclosure from Refinitiv, and the disclosure date range. The judgment determined the disclosure-related applications and gave directions concerning future co-operation and a further specific disclosure hearing.

1. Key categories. The application for information about searches and possible further searches was refused. The claimant already knew the relevant custodians, their roles and the search terms used, and had access to a substantial body of disclosed material. It therefore possessed the necessary building blocks for focused, granular requests. Requiring the defendants to explain whether their disclosure was apt to capture all relevant documents and to formulate further proportionate steps would effectively require a costly audit of their disclosure. The alleged gaps were disputed and had not been resolved on the evidence. It was premature to impose that burden.
2. Voice data. The court refused both the original broad order and the revised open-ended order. Identifying every participant in tens of thousands of historic recordings, where metadata was limited and many employees had left, could be disproportionate. A best endeavours obligation did not cure the uncertainty about how far the exercise would extend. The claimant was not required in every case to prove the specific relevance of an audio file before seeking assistance. As guidance, the parties were to co-operate and make reasonable efforts to identify participants in 181 calls identified by the claimant, and to report their experience at the next hearing.
3. Transactional data. The application for information about data categories was premature. The relevance of many categories, their ranking, the appropriate date range and the burden of retrieval remained materially disputed. Some proposed categories were potentially vast or required reconstruction of data. Expert-informed discussions should first identify the data genuinely required, its likely availability, the appropriate date range and the costs of production. Any subsequent application should be supported by focused evidence.
4. Co-operation and future management. The parties were required to engage substantively and co-operate in correspondence. The court expected a high degree of co-operation before the further disclosure hearing. The Refinitiv application and the precise order were left for further consideration. The Date Range Application was not pursued at the hearing.

This was a first-instance case management decision. The judgment records earlier case management conferences before Miles J, Sir Anthony Mann and Zacaroli J, but no appeal from those decisions was determined here.