In Nord Anglia Justice Kawaley made directions orders regarding the use of keyword searches, the number and scope of information requests, and the conduct of management meetings consistent with the orders made in Xiadu Life Technology (for further details please see "Dissenting shareholders: judicial management and e-discovery"). Further, the judgment provided welcome safeguards for companies facing appraisal litigation in the Cayman Islands if adopted on a wider basis.
The company, which operates international schools, expressed concern about the confidentiality of both proprietary research and employees' personal information. Accordingly, it sought specific protection of highly sensitive documents. While the directions granted do not go as far as the company originally proposed, they:
- expressly allow the redaction of highly sensitive documents;
- strictly limit those who can view unredacted highly sensitive documents (experts and counsel, not dissenter clients); and
- provide that where the dissenters' expert wishes to refer to highly sensitive documents in a memorandum or draft report to be shared with dissenter clients, only the redacted versions of the relevant documents may be mentioned.
Addressing the issue of management meetings, Kawaley acknowledged the problematic history of and inconsistent approaches to management meetings to date,(1) whereby some meetings have been held on a without prejudice basis and others have been open. Having put safeguards similar to those set out in the Xiaodu ruling in place, Kawaley went further and granted the company's request that only experts and local lawyers (not dissenter clients) attend the meetings, finding that "a 'professionals only' attendance restriction is more likely to be conducive to the free flow of information".
While there is no set of standard directions in Cayman appraisal proceedings, Kawaley expressed the need "to strive for a consistent approach to similar issues on the part of the various judges" of the Grand Court. The Xiaodu and Nord Anglia directions are likely to form the basis of an improved suite of standard directions – subject to any necessary fact-specific issues – for the future.
For further information on this topic please contact Ian Mann or Fleur O'Driscoll at Harney Westwood & Riegels' Hong Kong office by telephone (+852 5806 7800) or email (firstname.lastname@example.org or email@example.com). Alternatively, contact Nick Hoffman at Harney Westwood & Riegels' Grand Cayman office by telephone (+1 345 949 8599) or email (firstname.lastname@example.org). The Harneys website can be accessed at www.harneys.com.
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