Vilca & 21 Ors v Xstrata Ltd & Anor

On 11 December 2015 I held a Case Management (‘CM’) hearing in this case where issues relating, in particular, to disclosure were raised by the claimants.

William Davis J had held a previous CM hearing in May 2015 when the main contested issue was the question of whether the claimants should be able to rely upon an expert in mining security and public order policing. He held that they were not so entitled and gave various directions concerning the preparations for trial which he decided should be in June 2016. Contested issues of disclosure were not before him.

During the hearing before me in December an agreement was reached between the parties about a practical way forward in anticipation of a further hearing on 11 February. In the event, the parties were not ready on that date and I was able to offer Thursday last week as the day for a 1-day hearing starting at 10.00 am. Thursday turned into Friday and the argument continued until 1 pm on Friday.

I am giving this judgment (which has been prepared over the weekend) today, Monday, 29 February. I would have preferred a little longer to consider some aspects, but it seemed to me important that I should give my decision as soon as possible otherwise any further delay would cause unwelcome uncertainty. I have, therefore, done the best I can to arrive at appropriate conclusions on the contested issues, some of which involve quite technical issues concerning IT. My conclusions should not, in my view, be cited in any other case: they are intended to resolve the issues placed before me in the context of the particular circumstances of this case as they have presented themselves. As will appear, I propose to adopt a pragmatic course in relation to what I will later describe as “the control issue”. Any proper consideration of the authorities referred to would have necessitated reserving the judgment for a while and that would have caused a delay which will not assist.

The hearing exposed the significantly different positions taken by each side on the issue of disclosure and prior to the hearing I was, frankly, deluged with witness statements and correspondence relating to the issue. All that written material on both sides was, as one might expect of the solicitors involved, of high quality and closely argued. So too were the Skeleton Arguments of Mr Charles Béar QC and Miss Maria Roche, for the claimants, and Ms Shaheed Fatima QC, for the defendants. I am grateful to Mr Béar and Ms Fatima for their helpful oral submissions which went a long way to making more digestible what, on endeavouring to pre-read for the hearing, seemed totally indigestible. Nonetheless, I have been left with a fair number of not entirely easy decisions and the material upon which those decisions are to be made is often to be found in a variety of places in the papers with which I have been supplied.

The hearing before me and the applications made within it are set against the background of the date currently fixed for the 15-day trial starting on or about 15 June, some 3½ months away. Whether that date can be retained is one of the issues for consideration. The defendants wish to retain the trial date and say that there are reputational issues arising from the publicity that this case attracts that they wish to bring to an end as soon as possible. The claimants, if I understand their position correctly, whilst not in principle wanting the trial to be delayed, say that to achieve the proper level of disclosure to ensure adequate time to prepare for the trial and for there to be a fair trial will require the trial to be vacated.

I start from the position that I would not wish to vacate the trial date for all the well-established reasons. However, if I am persuaded that it would be unfair and/or unrealistic to proceed then I will have to vacate the trial date.

I will set out the background to the case briefly since this judgment is primarily addressed to the parties.

The First Defendant (‘D1’) and the Second Defendant (‘D2’) were both part of a large multinational mining group called Xstrata. Since the material events Xstrata has itself since been taken over by another group, Glencore plc (‘Glencore’). That took place in May 2013.

A significant part of Xstrata’s business was its copper mining business. This was run by a Copper Commodity Business Unit (‘CCBU’) reporting to the board of the parent company, D1. One of Xstrata’s largest assets was the Tintaya copper mine in Espinar province, Southern Peru. Tintaya was owned and operated by D2.

As I understand it, the Tintaya mine has come to the end of its life as an active mine and a new copper mine at Antapaccay (some kilometres from Tintaya) has commenced mining operations. The operation in the area has been moved there which is why, for example, facilities such as the Antapaccay Fileserver are referred to in some of the material before the court.

It is, I understand, common ground that there can be considerable tension between members of the local community, the operators of the mine and local security forces in areas where a mine is set. Police suppression of protests occurs and again it is not unknown for that to involve considerable violence. As a result the “Voluntary Principles on Security and Human Rights”, which is a set of principles designed to guide companies in maintaining the safety and security of their operations within an operating framework that encourages respect for human rights, have been adopted by many mining companies over the years including Xstrata. The principles have the backing of the United Nations.

There was tradition of disturbances on 21 May each year around the Tintaya mine and in May 2012 community protests started building up over the preceding weeks. D2 engaged the Peruvian National Police (‘PNP’) to assist in dealing with the protests and paid the PNP for its services. There was, it is alleged, some previous history of violent suppression of such a protest by the PNP. On this occasion, it is the case of the claimants that protestors were subjected to extreme violence by at least the PNP and that others may possibly have been involved. It resulted in two deaths by shooting, one case of critical spinal injury, numerous other severe injuries and, it is alleged, beatings, arbitrary detention and other abusive actions by police, in many instances within the mine compound itself.

Each of the 22 claimants in this action complains of actions of this nature.

The essential allegation is that the excessive violence was perpetrated by the police, but what lies at the heart of the dispute is whether D1 and/or D2 have a legal responsibility for those acts if the evidence establishes that the acts complained of were perpetrated.

Various breaches of duty, both under English and Peruvian Law are alleged, but the validity or otherwise of the legal arguments is not relevant at this stage. Mr Béar summarised the pleaded case as involving allegations that the defendants incited, procured or participated in the police violence, facilitated the unlawful actions of the police by offering logistical support, facilities and information and also bore responsibility through a breach of a duty of care owed to the protesters. There is, as might be anticipated, an issue about vicarious liability. All these allegations are firmly denied by the defendants.

The disclosure issues that arise relate, in general terms, to the issues thus raised. Again in very general terms, what was known, discussed and planned at a relatively senior level within D1 and D2 and between those companies and the PNP and any other security personnel before the anticipated protest would be potentially relevant, as would any documents emerging during the events themselves. Anything that represented some kind of analysis of the events that occurred thereafter could also be relevant.

As I have indicated, the actual protest started on 21 May 2012 and continued for a number of days thereafter – possibly about a week, maybe a little longer. On 28 May a state of emergency was declared by the Peruvian Government and one imagines that the protest will have come to an end very soon thereafter.

The relevant period for disclosure has been taken to be from 1 April until 31 August 2012, the start date being one that I directed on the last occasion the case was before me.

The defendants assert that the claimants’ requests for disclosure go beyond what is necessary and proportionate for a fair trial of the issues. The claimants assert that the position taken by the defendants is unduly narrow. As I have indicated, there is a considerable divergence of view.

I will not extend this ruling unnecessarily by reciting the relevant provisions of CPR 31 or the relevant parts of the applicable practice directions. The potential relevance of documentation that may have been created is obviously of central importance to the question of disclosure, but the principle of proportionality also has a part to play.

I will address in a very broad way aspects of that principle which are said, particularly by the defendants, to have a significant impact on the outcome of the applications made by the claimants.

It is said, in the first instance, that the total value of the claims brought by the various claimants is, under Peruvian damages principles, only about US$250,000. The suggestion by the defendants is that their total costs by the end of the trial will be in the region of £5.2 million and that, accordingly, there is an obvious disproportion.

In the first place, I think it is right to say, as Mr Béar suggests, that the defendants have chosen, perfectly understandably, solicitors who will provide them with a Rolls-Royce service at a commensurate level of cost. Whether costs in that region would be held to be recoverable if the defendants were to succeed is, of course, a different matter. To the extent that it is relevant to look at the defendants’ costs by way of comparison with the total value of the claim, it should, in my view, be by reference to the likely recoverable costs. Unless that approach is adopted the engagement of expensive lawyers by a multinational company facing a claim by a group of those alleging injury or damage at a modest level will invariably result in the suggestion that “the game is not worth the candle” and disproportion will become a self-fulfilling prophecy.

Secondly, whilst I do not suggest that the kind of comparison to which I have just referred is irrelevant, when it comes to weighing the balance of proportionality it must not be forgotten that two human lives were lost in what occurred during the disturbances and a number of individuals were severely injured. Whilst it is quite right to say that this case is not a public inquiry into what took place, the very fact that lives were lost and serious injuries occurred is enough to weigh heavily in the balance even if the damages recoverable are relatively modest. Mr Béar is right to say in this connection that the defendants subscribe to the Voluntary Principles to which I have referred and (not his words, but mine) something more than lip-service to those principles is demanded.

That said, the claimants have apparently been advised that, under Peruvian law, their claims are worth over £5.2m. I am not in a position to say whether the defendants are right about this or the claimants are right about it.

In this context as well, it is said on behalf of the defendants that a large part of the overall cost so far has been incurred as a result of the disclosure investigations. Whilst there may be an argument about the quantum of the potentially recoverable costs incurred, it is not surprising, in my view, that disclosure is a time- and cost-consuming process in this case: it is the way in which the claimants may secure sufficient evidence to be able to proceed with the case. Again, that is a factor to be considered.

Those giving Linklaters instructions on behalf of the defendants, and who are doubtless concerned about reputational damage associated with this case, may need to bear in mind that a generally accommodating response to disclosure may play better in the reputational stakes than a perceived narrow and unforthcoming approach. The end result of an unforthcoming approach may be that the trial judge draws adverse inferences against the party being unforthcoming.

However, the other side of the picture is that, whilst it is entirely appropriate for the claimants’ advisers to seek disclosure of potentially relevant documents, it does not require pursuit of the electronic equivalent of every conceivable piece of paper that might tell, one way or the other, about the nature of the involvement of the defendants with the PNP. A comprehensive “no stone unturned” approach cannot be justified. Some sense of balance must be retained.

I propose to keep both of those broad factors in mind, together with other relevant considerations, when trying to carve a path through the competing submissions on the matters presently in dispute.

I will turn to the various disputed areas.

Emails of D2

The defendants’ advisers have engaged in the customary process in e-disclosure matters of running keyword searches over, in particular, the emails recovered from the email archives of various custodians. The initial keywords were agreed by the claimants’ advisers. I will turn to that shortly, but it needs to be noted that there had to be a significant retrieval effort before the searches were conducted. By the time the process started the defendants had been taken over by Glencore and the IT systems had changed.

Emails are ordinarily stored on an exchange server, but they are also backed up and in due course archived. In the case of D2 the emails became archived under an archiving programme called ‘Enterprise Vault’. It is, I think, common ground that when an exchange server is regularly backed up and made the subject of an archiving process, the contents of the backup and the archive for the corresponding period will be largely duplicative.

When a document containing the keyword is identified, there is said to be a “hit” and the document will in due course be the subject of a manual review. The “document” may, of course, consist of a series of emails so that the word might, for example, appear on one page only of several pages. The additional pages are often called “family documents”.

Any such document, with its “family”, is then subjected to a first level manual review to determine whether it is potentially disclosable. This tends to be carried out by a paralegal or other junior solicitor. Given that a large number of the documents generated by this process are in Spanish, it has been necessary to engage Spanish-speaking paralegals to conduct the first level review.

What Mr Greg Reid, the partner at Linklaters with overall responsibility for this case for the defendants, has said is that, following de-duplication, a total of a little over 21,000 documents (mostly in Spanish) have been identified by the currently agreed keyword search. There would need to be a first level manual review by Spanish-speaking paralegals, followed by a second level review by a Spanish speaking associate and finally a review at partner level prior to which there would have to be translation. All this is likely to cost, he says, in the region of £50,000.

He wishes to find a more proportionate approach, as he would put it, to this exercise given, as he says, that of the 45,000 or so documents already reviewed, only a little over 850 have been disclosable. Where a document is identified as the result of a keyword search by responding only to one search term rather than more than one, a “unique hit” is said to have occurred.

He says that 25 terms that generated unique hits within the 21,000 odd documents have been shown by previous experience to have required no documents to be disclosed. In relation to 4 particular terms that have generated unique hits, the same previous experience shows that less than 1% of the documents reviewed needed to be disclosed. His proposal is that all the documents that have given rise to a unique hit in the circumstances I have described should be excluded from the manual review with the result that approximately 13,000 documents would have to be reviewed in this way rather than 21,000. There would be a consequent saving of time and cost.

A helpful schedule has been prepared indicating the relevant search terms and the number of unique hits recorded by reference to the exchange data.

Mr Béar has agreed that all but 4 of the sets of documents generating a unique hit may be excluded from review, but contends that those generated by the words “protest”, “tiro” (one translation of which is “shot”), “arresto” and “arrest” should remain the subject of review. Equally, he submitted that the documents which returned some disclosable unique hits, although likely to be less than 1% of the documents reviewed, should remain the subject of renewal. He did so on the basis that there might, for example, be just one document within the disclosable documents that revealed something of significance to the claimants’ cases.

I sympathise with the position taken by Mr Reid, and as contended for by Ms Fatima, but the seriousness of the allegations concerning the death or serious injury of a number of the protestors does not justify a restriction of the disclosure exercise in the respects contended for. The words identified by Mr Béar seem to me to connote the possibility of a disclosable document and, on balance, I think the point he makes about the 4 sets of documents is a valid one also. It is difficult, in my view, to justify a simple percentage or other mathematical analysis to this kind of exercise. Where arguably seriously culpable behaviour has taken place, it is unlikely that it will be revealed in a significant number of documents. Morgan J made much the same point in Digicel v Cable and Wireless [2009] 2 All ER 1094 and I respectfully agree with his approach.

In my judgment, the disclosure sought in this respect is justified.

Documents other than emails

The focus of the aspect of the application that I have just been considering relates to the analysis of recovered emails. There can be little doubt that email traffic in the run up to and at or about the time of the material events represents a source of potentially relevant information. However, plainly that may not be the only source and other documents generated may also reveal material information although I accept that if documents have been created and made the subject of an attachment to an email, any such document is likely to have emerged in the email disclosure exercise. Because of the take-over of the defendants, the source of electronic versions of documentary material are the relevant electronic storage facilities. D2’s documents other than emails and attachments are stored in file servers and, in the events that have occurred, reliance has had to be placed on backup files servers. It appears that there are file servers for Lima and Antapaccay.

What has emerged, unsurprisingly, is that the backup file servers contained an immense amount of information with potentially many thousands, perhaps tens of thousands, of documents. The individual documents, usually stored in folders, would need to be accessed in such a way as to enable an appropriate keyword search to be applied to them. A “directory tree” report running to many pages, has been produced to demonstrate how many pathways would need to be pursued to enable such a search to be conducted. The advice apparently given to Linklaters by their IT advisers is that, without agreement from the claimants, a manual “cherry picking” exercise would not be defensible and, without other objective alternatives for excluding/including folders (such as “Last Modified” date), the entirety of a backup would have to be processed, an exercise said potentially to cost many thousands of pounds.”

Mr Reid has asserted in his fifth witness statement that “it has not been possible … to identify a reasonable and proportionate methodology for identifying potentially relevant documents within these files server backups.”

The Claimant’s advisers, including their IT expert, Mr Adrian Palmer, have only had the hard copy directory tree to work on until 11 February, just over two weeks ago, when the directory tree for the Lima server was supplied in electronic form. Mr Palmer has prepared a note which, in summary, suggests that the difficulties suggested by Mr Reid and those advising him are not as great as stated. He says that, with the assistance of a Spanish speaking solicitor from Leigh Day, it took just over an hour to identify eight folders that contained documents that might be of interest. The total files were just under 24,000, but they would be the subject of a keyword search initially. Seven of the files were contained in a folder named “Tintaya Conflict” and over 2,000 in a folder entitled “Community Relations”. I merely highlight these as they do, at first blush, seem to be the kind of files over which a keyword search should be run. The largest number of files appear in a folder entitled “JMARUN”. Mr José Marun was the Executive General Manager of D2 and the V-P of the CCBU and is an identified custodian for the purposes of e-disclosure.

The short point made through Mr Palmer’s note is that although the Lima file server contains approximately 122,000 files in 14,000 folders, a reasoned approach to their analysis reduced the potential candidates for a keyword search to approximately 34,000 files which were then further reduced to just under 24,000 files by reference to their titles.

It is quite easy in the assertion and counter-assertion climate of the disclosure issues in this case to misunderstand what is being said. I had understood Mr Reid’s recent statement and Ms Fatima’s submissions to be to the effect that this aspect of the claimants’ application was resisted. However, if I understood the position correctly, Ms Fatima drew my attention to an email sent late in the evening of 24 February from Linklaters to Leigh Day which is said to convey the message that a keyword search had been carried out on the contents of certain manually identified folders contained on a backup of each of the Lima and Antapaccay file servers (the Lima backup comprising the shared folders of the file server and the “JMARUN” user folder, and the Antapaccay backup comprising the shared folders of the fileserver). It is said that, following a manual review of the 74 documents identified from the Lima file server, no disclosable documents were found and that in respect of the Antapaccay file server 5 unique disclosable documents were found.

It is not clear to me whether this satisfies the claimants. I suspect not. Since certain other work will have to be done in any event following this ruling, I think the only sensible course is for the IT experts on each side to see if they can agree a modus operandi for dealing with this exercise: apparently, it was not a subject they discussed when they met recently. If they cannot agree a way forward, I will endeavour to reach a final position on the basis of further written submissions.

D1’s Fileserver

The custodians of D1 are Claire Divver (General Manager, Group Corporate Affairs), Sir John Bond (Chairman) and Mick Davis (CEO). None, I believe, are now working for Glencore.

The search conducted in relation to these custodians has been limited to the “home folders” and not to any “shared folders”. The claimants submit that the shared folders should be searched.

Mr Reid has averred that it is unlikely that any of these custodians would have used shared folders for the retention of documents relating to the events of May 2012: such documents would be more likely to have been retained on their home folders. I agree with the observation of Mr Matthews that this is somewhat speculative and is not directly evidenced. However, the points made about each of these custodians by Mr Reid in paragraphs 127-132 of his fifth witness statement seem to me to be more compelling. The short point is, as one might expect for those at the “top end” of the parent company, the evidence of their involvement in the kind of issues that arose in 2012 concerning the mine is either scant or non-existent. Of the three, Mr Davis appears to have received 35 disclosable emails and sent 14. To my mind, any documents or communications which might support the claimants’ case are likely to emerge at a lower level than the level of these three individuals within D1.

I am not persuaded that this is an avenue worth pursuing further on the basis of the material currently available. The defendants will be under a continuing obligation to review the question of disclosure generally as preparations for the trial continue and if any documents emerge from other sources which suggest that this avenue should be revisited, then, of course, that must take place.

Further keywords

The Spanish expression “hormigas en acción” translates into “ants in action” which has recently been acknowledged to be an expression used by some within the defendants’ organisation to refer to the protesters. The significance of the expression emerged on or about 19 February, a few days before the hearing. It certainly has a derogatory sound to it (arguably at odds with the approach foreshadowed in the Voluntary Principles) and, in my judgment, is plainly a proper addition to the keyword search given the nature of the case advanced. Ms Fatima acknowledged this and she, with Mr Reid’s support, sensibly offered on the second day of the hearing to include “Hormigas” as a search term albeit, as she put it, on a “pragmatic” basis. In oral submissions, in response to a suggestion from Mr Béar, it was acknowledged that a keyword search could also be performed for the acronym “HA” in conjunction with the word “equipo” if “equipo” appeared five words on either side of HA. I will return to this shortly.

As I understand it, the reason the expression has been identified is that it appears in the third item of a document entitled ‘Plan de Contingencia Tintaya – 21 de Mayo’ – which translates to ‘Tintaya Contingency Plan – 21 May.’ The third item (in Spanish) is “Implementar y Activar Equipo HA (Hormigas en Acción)” which translates to “Deploy and Activate Team HA (Hormigas en Acción)”. This conveys the impression that there was a “Team HA” just as there was an “Equipo CM” and “Equipo FT” whatever they were. That there was a team has been denied by Mr Luis Lanque (Head of Security at the mine), but the claimants are not, at this stage, obliged to accept that assertion and this is obviously an area that the claimants are entitled to investigate as I think Ms Fatima’s offer implicitly recognises. If her approach does not acknowledge the legitimacy of the inquiry then, with respect, I think it is wrong.

The practical difficulty is that if such an expression was used regularly, or a team bearing the same name existed, there is a likelihood that an acronym of “HA” was used from time to time. Unfortunately, ‘ha’ is a very common word in Spanish and any keyword search would generate countless “hits” particularly given that no case-sensitive keyword search can be implemented.

As foreshadowed above, I detected in the oral exchanges towards the end of the hearing on Friday that a consensus on the way forward in this regard might be emerging in the sense of the way the keyword search might take place, though not necessarily in relation to the acronym ‘HA’. I hope that might be the case – the court is ill-equipped to make determinative rulings on issues of this nature. However, if a consensus cannot be reached, I will have to decide. It needs to be understood that what will guide me in such a situation is my perception that this is a legitimate area for disclosure and investigation on behalf of the claimants for the reasons I have given.

Further custodians – non-secretaries

The claimants submit that the following should be characterised as custodians and appropriate disclosure given:

a.

Enrique Velarde;

b.

Mary Taipe;

c.

Sonia Avalos;

d.

Heynar Loaiza;

e.

Jael Diaz;

f.

Fredy Figueroa.;

g.

Graciela Velasco;

h.

Froilan Mollepaza;

i.

Yrma/Teresa Charca;

j.

Deysi Espinoza;

k.

Henry Lopez;

l.

Domingo Drago;

m.

Oscar Delgado;

n.

Emily Russell;

o.

Bridget Bleakley;

p.

Markus Noethiger

I will refer to them by the letters given. (a) to (f) inclusive were members of the Community Relations Team (‘CRT’). When the role of members of the CRT had been questioned on behalf of the claimants, the response from the defendants in September 2015 was that they “played no active part in dealing with the May 2012 disturbances” and that searching any documents associated with them would not serve any useful purpose. However, the contingency plan referred to above (see paragraph 55) indicates that included amongst the tasks of the CRT was the monitoring of opposition leaders, the neutralising of “extremist and politicised groups” and “forming a ‘trust team’ to manage information and make decisions in connection with Enrique Velarde.” The disclosure so far indicates that members of the CRT were communicating with people at a more senior level at the mine during the disturbances. Nonetheless, in his response to this application, Mr Reid, on the instructions of the defendants, said that the reporting role of members of the CRT “was passive and simply involved passing on what they learnt of events taking place away from the mine, rather than coordinating any active response by [D2] to the protests.”

The application was, therefore, resisted, but Ms Fatima offered (effectively on a “without prejudice”, pragmatic basis and not conceding that any achieved the status of “custodian”) to conduct a search of the email communications of these 6 individuals for the period from 21 May to 31 May 2012 by using the full list of agreed keyword searches.

Mr Béar argued that the period should be the full relevant period. Whilst, on the information currently available, it would seem that the period suggested by Ms Fatima was the “active” period for the CRT, it is likely that they would have received briefings in the run-up to 21 May and possibly debriefings in the period thereafter and, accordingly, it seems to me that a review of the emails during the whole of the relevant period ought to be conducted.

Where I differ from Mr Béar is in connection with his contention that there should be a Fileserver search as well. On the basis of the current information, it seems to me much more likely that anything of potential relevance to this claim, certainly at the level of these individuals, will be in email traffic rather than in dedicated documents. I am not, therefore, proposing to accede to the suggestion that there should be any further document search at this stage (save in relation to the matters referred to in paragraphs 83-98 below). I emphasise the words “at this stage” because it is just possible that something might be revealed in an email which leads to the conclusion that there may be a document that ought to be disclosed. However, that stage has not yet reached and what I propose to do is simply make no order on this aspect of the application at present. I make it plain that I am not positively encouraging any further application in this regard, but I would not wish it to be thought that the door is completely closed if there is an obvious further avenue to pursue.

Ms Fatima’s offer was to perform this search by use of the Antapaccay Exchange Server backup only from 1 July 2012. I presume that to ensure that the full relevant period is covered, a backup after 31 July 2012 would need to be used. I am, of course, assuming that the Antapaccay Exchange Server backup is the appropriate source for all emails to and from these individuals.

Individuals (g) to (k) were not CRT members. However, (g) – (i) were identified on the contingency plan in roles on, if I understand it correctly, a permanent basis. On those grounds it seems to me that each may have documentary material in electronic form of potential relevance to the issues in this case. For that reason their email communications should, in the first instance, be reviewed.

The current evidence relating to the roles of (j) and (k) is, so far as I can judge, very sparse. I should be most surprised if any document to which they were a party (either by creation or by association) is not revealed elsewhere in the disclosure process.

I do not propose to make any order in respect of them.

Mr Drago and Mr Delgado ((l) and (m)) were employed by Xstrata Peru Servicios Corporativos SA (Xstrata Peru Corporate Services Ltd) – ‘XPSC’. Mr Drago is alleged to have been General Manager of Corporate Affairs at Xstrata Copper (which is not admitted) and Mr Delgado was Deputy Manager for Public Affairs for XPSC (and acted “as agent of [D2]”). It is said that they were both in Lima and not at the mine during the protests.

It is, in fact, suggested that both are affected by the “control issue” (see below), but again, Ms Fatima offered (on the same basis as indicated above) that their email communications for the full relevant period would be searched using all the agreed keywords. It was put forward with a particular machinery identified (reference being made to the Arequipa Exchange Server backups). Provided it covers all their email communications during the relevant period, I do not think that the machinery matters.

The sense one obtains from the current information is that they were physically remote from what occurred during the protests, but there is evidence that Mr Delgado was present at a meeting with the police on 30 April 2012 and that he had communications with the PNP during the disturbances. I consider that would have justified his inclusion in the list of custodians. The position of Mr Drago is less clear, but he was a member of BURRT (see paragraph 84 below) and he did have some involvement from a distance during the protests.

Mr Béar says that the search should at this stage include documents on Fileservers. For the reasons given in relation to the first six (see paragraph 62 above), I disagree.

During the relevant period Emily Russell (n) was Global Communications Manager of Xstrata Copper (the CCBU), Bridget Bleakly (o) was Senior Communications Consultant of Xstrata Copper (the CCBU) and Markus Noethiger (p) was General Manager and Group Head of Sustainability at Xstrata plc. However, their formal employers were Xstrata Chile Servicios Corporativos in Santiago for (n) and (o) and Xstrata (Schweiz) AG in Zug, Switzerland for (p).

The issue here is whether these three individuals must effectively be excluded from review because of the “control issue” to which I will refer below. As I understand it, but for that issue they would be recognised as custodians because each may have or have had custody of disclosable documents. On the basis of the contents of Mr Matthews’ 6^th witness statement, it does appear that each (particularly (n)) had a material interest in the events at the mine.

I will return to the “control issue” below.

Further custodians – secretaries

The order I made following the hearing on 11 December 2015 (which was substantially agreed between the parties) required the defendants to identify their nominated custodians' secretaries and assistants. This was done and the list is as follows: Joyce Margarit was the secretary/PA to Mick Davis and was employed by Xstrata (Schweiz) AG; Linda Dagley had the same role in relation to Claire Divver and was employed by Xstrata Services (UK) Limited in London; Lida Moscoso acted in this capacity for Edgardo Orderique and was employed by D2; Monica Bernaola acted in this capacity for Jose Marun and was employed by D2; and finally Marina Casillhas acted in this capacity for Luis Rivera and was employed by D2. (Although there is reference in the documentation to Gina Fung, Sir John Bond’s secretary/PA, it does not appear that she is sought to be included. Nonetheless, her position would be the same as the others: see paragraph 77 below.)

Adding their names to the list of custodians is resisted primarily on the ground that, given the nature and context of the claim made and the disclosure exercise as it has been conducted so far, there is little likelihood that any of the named individuals would have been creating relevant disclosable documents in their own capacity which have not emerged elsewhere in the disclosure exercise. Ms Fatima says that the named individuals appear only in a handful of the 850+ documents that have been disclosed to date which suggests that there involvement is minimal. The “control issue” also, it is said, applies to Joyce Margarit and Linda Dagley since neither were employed by D1 and neither remain employed within the defendants’ group of companies.

The counter-argument is that all secretaries and PAs are likely to have generated unique documents that would not have been caught by the parameters of the searches undertaken to date.

This, as it seems to me, is a request for disclosure too far. I acknowledge the possibility that a secretary or PA may have created a document at the instance of the person for whom she was working, but it would be highly surprising if that document, or at least its existence, would not be revealed in the searches to be made of the communications of those for whom they were working. Given the nature of the document for which the claimants would seem to be searching in this case, it seems to me very unlikely that such a document would have been “parked” solely with a secretary or PA.

For those reasons I do not think the case has been made out for the inclusion of these names on the list of custodians.

Charles Sartain

Mr Sartain was global CEO of Xstrata Copper (the CCBU), a director of D2 and also a member of the Group Executive Committee which was a body of Xstrata Schweiz AG but, I am told, reported directly to the board of Xstrata plc. He was employed by Xstrata Queensland (now known as Glencore Queensland Limited). He continued to be employed by Glencore Queensland until May 2013.

His name surfaced during the hearing before me in December last and the order the parties agreed was that Xstrata Queensland should be contacted asking for “permission to search electronic documents that are or have been within its custody, control or possession, such electronic documents to be those within the relevant date range and which were previously within the control of” Mr Sartain. The reply was that Glencore was prepared to give Linklaters access to such email records as were retained for Mr Sartain over the relevant period “and to permit any such emails as may require to be disclosed in the proceedings to be produced to the other party.” Glencore indicates the source of the material that can be supplied as a backup at 31 December 2012 and conclude the letter dated 17 February 2016 with this sentence: “The voluntary identification and provision of this material should not be taken as any indication of our willingness to search for or to produce anything further in relation to Mr Sartain or any other person.”

This was, if I may say so, a helpful and constructive response. It suggests that if there is an arguable legal “control issue” concerning documents associated with Mr Sartain during the relevant period, it is not an issue that Glencore are seeking to raise, certainly in relation to his emails. This attitude may, perhaps, be derived from an appreciation by Glencore that, irrespective of any legal arguments, there may be a reputational issue if there is a perception that it is taking technical points to defeat an otherwise legitimate request for assistance in this litigation. Glencore has acquired Xstrata and will be seen to have acquired it with at least a moral responsibility to cooperate in litigation brought against its predecessor concerning the deaths and serious injuries occasioned to the protesters. However, that is speculative and there may be other, possibly additional, reasons for Glencore’s stance on this issue.

I am unclear as to why Glencore’s response is limited to the email traffic when the order (which I assume was conveyed fully to Glencore) related to “electronic documents”. This was not clarified during the hearing. I will return to this shortly, but the stance taken by Glencore is, in my view, a helpful start so far as Mr Sartain is concerned. As I have observed in relation to other custodians (see, e.g. paragraph 62 above), I consider that the email traffic is the correct starting point in the disclosure process. Subject to the specific documents referred to later, for my part I consider that the email traffic should be reviewed first and questions as to whether any emails revealed the existence of otherwise undisclosed and relevant documents can be left over until that process has taken place. At the moment, therefore, I am not proposing to make any further order concerning other documents with which Mr Sartain was associated. I am, however, going to require a further approach to be made to Glencore to clarify its position in relation to him and indeed more generally.

Hard copy disclosure

The claimants have sought an order for a search to be made for hard copy documents in “all administrative buildings inside the Tintaya and Antapaccay mine compounds save except where … already searched … and [D2’s] offices in Lima and, insofar as not included, the location of the BURRT crisis room in Santiago, Chile.”

BURRT stands for Business Unit Rapid Recovery Team. As its name suggests, this appears to be a team put together to enable a response to an event such as that which occurred at the mine. A “Crisis Room” was created in Santiago. What the documents already disclosed reveal is that the team was activated for a brief period between 29 and 30 May 2012, at about time the national state of emergency was declared.

There is an issue about the disclosure of BURRT documentation generally and I will address it now. The defendants say that it would be unreasonable and disproportionate to search the crisis room and/or to look for electronic documents because of the limited period over which the team was activated and because there is no evidence that it played any active role in the events. There is also, it is suggested, a “control issue”.

On the evidence as it stands, I agree that this would seem to be an unnecessary request both for the reasons given in relation to the short period the team existed and on the more general basis that any action on the part of the defendants that could be said to have encouraged the PNP in its approach to the protesters is likely to have occurred before the two days to which I have referred.

However, it is just possible that some document might have been created in the context of the existence of the team and what it was planning that the door to disclosure ought not to be completely shut (subject, of course, to the “control issue”). Nonetheless, whilst what follows does not necessarily represent a complete audit of those who became interested in the actions of the team, the emails of Mr Sartain, Mr Marun, Mr Drago, Emily Russell, Claire Divver and others involved in emails about the BURRT are to be reviewed and, as I have indicated elsewhere in relation to other searches, if the existence of some document that has not emerged elsewhere is evidenced by that review and which appears to have some connection with the pleaded issues in the case, then it may be an avenue that can be pursued.

Ms Fatima agreed that there should be a search of the administrative offices of the mine and the only issue appears to be whether the order should refer to the Tintaya and/or the Antapaccay mine. If offices at the former no longer exist, then obviously there is no point in directing a search. Doubtless a suitable form of words can be agreed which gives effect to the need for there to be such a search.

The claimants seek disclosure of the following documentation:

First, sustainable development documents, namely, (i) documents reporting, presenting findings on, logging and/or escalating Critical Incidents and/or High Potential Risk Incidents that refer to the Second Defendant or its operations for the year 2012; (ii) sustainable development risk audit documentation relating to 2011 and 2012 that refers to D2 or its operations; (iii) sustainable development documents that refer to D2 or its operations for the year 2012 and (1) generated by the Copper Commodities Business Unit, including the Annual Sustainability Report; monthly reports on Health, Safety, Environment & Community; and Sustainable Development Reports to the Health, Safety, Environment & Community Committee of that Unit or (2) generated at Xstrata Group level, such as the Monthly Sustainability Report and the Sustainable Development Performance Report; and (iv) the Annual Review of Implementation of implementation of the Voluntary Principles for the years 2011 and 2012.

Ms Fatima offered to meet these requests to some extent by offering to “perform a reasonable search” for documents as follows: in relation to (i), she suggested that the search should be for “documents reporting or logging critical incidents and/or high potential risk incidents in respect of the May 2012 protests”. In relation to (ii) she offered a search in relation to “annual in-depth sustainable development risk audit documents relating to 2011 and 2012 which refer to the potential for protests to occur at or near the Tintaya mine site”. In relation to (iii), she offered a search in relation to “any of the following Sustainable Development documents which make reference to the May 2012 protests or the potential for protests to occur at the Tintaya mine site: Copper CBU Sustainability Report 2012; Copper CBU monthly reports on HSEC for the Relevant Period; Group Monthly Sustainability Reports for the Relevant Period; Group SD Performance Reports for the Relevant Period; CBU SD Report to CBU Board HSEC Committee and the Xcu Risk Management Common System.” In relation to (iv) she offered a search for any references to the May 2012 protests in the annual review of implementation of the voluntary principles for the years 2011 and 2012.

As I understood Mr Béar’s response he accepted the words “reasonable search” and (iii) as proposed, but did not accept the qualifications to or narrowing of all the other requests. My difficulty is knowing the precise implications of the proposed alterations other than to note Ms Fatima’s contention that they are more closely aligned with the pleaded issues than the formulation proposed by the claimants. She may be right, but I have to adopt a pragmatic solution given the time I have to consider this matter and I propose that the claimant’s formulations should stand for this purpose.

The claimants also seek the documents available to and/or generated by the BURRT Crisis Team between 29-30 May 2012 and/or otherwise relating to the establishment and subsequent operation of the BURRT Crisis Team. I have dealt with this above and, as things stand, I make no order in respect of these documents.

I am happy to record one fairly unique area of agreement: the defendants agree to disclose the Copper Commodities Business Unit Crisis Management Plan in place in 2012 if it exists.

The claimants seek each of the categories of document arising under or by virtue of D2’s contingency plans as set out in quite a detailed list in Appendix 4 to a letter from Leigh Day to Linklaters dated 2 February 2016. I need not set it out here. Initially the defendants questioned the relevance of these documents but, given the nature of the case advanced by the claimants, any documents evidencing contingent planning for the forthcoming and anticipated protests are plainly relevant and disclosable. Ms Fatima’s proposal (which I do not set out in full) narrows the scope of the disclosure. Given the potential significance of these documents I do not think it is right to do so. I am not really in a position to judge whether the claimant’s formulation goes beyond what is necessary, but I consider that it is better to err on the side of a wider definition than a narrower definition to ensure that any appropriate document is revealed.

Another area of agreement that I can record is that a reasonable search will be conducted for any documents relating to the protests and anticipated protests of May 2012 and referring to and/or produced by the “Ants in Action” team.

The claimants seek hard copy documentation of Xstrata Peru Servicios Corporativos SA relating to the material events. I am not sure that the precise relevance of any such documents have been made plain to me in the submissions I have received save that Mr Drago and Mr Delgado were employed by this corporate entity. However, given that the response of the defendants is that the “control issue” prevents any disclosure, I will assume in the claimants’ favour that a case for relevance may be made out. Since I propose that the “control issue” is deferred, I propose to make no order on this aspect of the application at the present time.

As I understood the submissions on Friday, the final aspect of the order sought by the claimants has been agreed subject to one modification which I understand to be acceptable to the claimants.

As I have worked my way through the disclosure issues that have been raised it has become increasingly clear that it would be unrealistic for the trial to take place in June. It seems to me that there are further stages in the process of disclosure still to be undergone and I do not think that a fair trial can be conducted until it has been completed. I use the word “fair” in relation both to the claimants and the defendants. If there are documents that assist the claimants in establishing their case then, of course, they must be disclosed as is expected in every case. Equally, of course, if there are documents that demonstrate that the claims are misconceived or at least assist the defendants in resisting the claim, the better it is for the defendants to disclose them. The defendants have as much interest in seeking to defeat this claim as the claimants have in proving it.

At the moment, the instructions of those instructing Linklaters seem to be to limit disclosure as much as possible. There is, of course, a perfectly understandable costs element to instructions of that nature and also an understandable concern that sensitive documents that go beyond what it is reasonable or necessary to disclose should not be disclosed. However, whatever the legal or factual merits of the case advanced for the claimants, its nature is tolerably clear and the kind of document that is potentially relevant to it is also tolerably clear. The defendants would be ill-advised to give the appearance of being reluctant to cooperate in the process of making these documents available. It may be of assistance for a copy of this judgment to be made available to them. Some aspects of what has been sought on the claimants’ behalf have gone beyond what is reasonable or necessary (certainly at this stage), but there are a number of areas where appropriate requests have been made which have been rebuffed.

One reason given for denying some aspects of the disclosure sought is that the defendants do not have the requisite control over the documents requested. I have received competing legal submissions about the correct approach to issues of this nature. Should it be necessary to rule upon them I will do so. However, I am going to invite the corporate entities that would otherwise be involved in this issue to consider their position carefully and to communicate that position to Linklaters having read this judgment. It is not entirely clear to me from where the instructions given to Linklaters truly emanate. The defendants no longer exist as companies – or at least their names have been changed because they are all now subsumed under the “Glencore umbrella”. As I understand it, all the other companies that employed various people whose documents or emails are sought are also now under the same umbrella. Leaving aside any legal issues, I find it difficult to understand why the “control issue” argument is raised in such a situation. All these companies could cooperate in the disclosure process without the court having to compel them to do so either by way of an order in this action if it is justified legally or by a third party disclosure order brought by the claimants in another application.

I propose, therefore, to adjourn all the unresolved claimants’ applications to which a “control issue” response has been advanced to enable Linklaters to ascertain whether the various companies wish the point to be taken. It is already evident that Glencore has not sought to take the point in relation to Mr Sartain’s emails. It is possible that, on reflection, it will not seek to do so in relation to the others. However, that remains to be seen. If the point is not to be taken, I shall not need to decide on the legal submissions put before me.

It will be apparent that there is one area where I do agree specifically with the position taken by the defendants: the email traffic is the first place to start in relation to e-disclosure in this case. The very nature of the case suggests that anything that will go to assist the claimants or the defendants will probably emerge in email communications during the relevant period. I do not know whether a staged process of e-disclosure has ever been considered in this case, but viewing the framework of the case as it is now, it seems to me to be a case where that could have been considered and indeed can still be considered even now. I think that some of the requests for documents are premature and would result in unnecessary expenditure and time-consuming searches of many folders that may have no bearing on the case at all. This would be disproportionate at this stage. As I have observed at various stages, the probabilities are that any document of relevance will either have been attached to an email or referred to within it. I propose, therefore, that the email disclosure process should run its course before any consideration is given to further searches for electronic documentation. I should, perhaps, say that I do not see this as a return to the days of Peruvian Guano, but simply a recognition that in some cases a staged approach is the just and proportionate response to a major disclosure exercise.

I shall need a realistic estimate from the parties on how long it will take to complete the various aspects of the e-disclosure process that has either been agreed or made the subject of a decision by me in this judgment. As I have made clear, I am not positively inviting any further application for documentary disclosure thereafter, but the claimants should have the opportunity to consider what has been revealed and make any reasonable and proportionate request for further documentation the existence of which may have been revealed by the email traffic.

The claimants are also entitled to know whether the “control issue” remains a live issue.

Until these two aspects have been dealt with, it will be premature to try to fix a date for the trial. As will be understood, I am very reluctant to vacate an existing trial date, not just because of the interests of the parties in this case, but because of the effect that removing a case from the list has. It means that other parties who would have wished to have had their cases heard at the time allocated for this case have (unjustifiably) to wait longer to be able to get to court. Nonetheless, as Judge in charge of the QB Civil List, I want a case to be listed for trial when it is fit and ready to be tried and I do not think that I can say that this case will be fit to be tried in June. Both sides have an interest in getting the case ready as soon as possible, but there is more to be done before that is so. Ms Fatima hinted that the defendants wanted the case dealt with in October if it could not be dealt with in June. I suspect that may be too optimistic, but the solution lies largely in their hands.

I will not relinquish my personal responsibility for the case management of this case until I am satisfied that the disclosure process is as complete as possible and I will retain responsibility for directing when the trial should be fixed. The parties must understand, however, that if a further hearing is required I cannot guarantee a hearing date that is necessarily convenient to their retained Counsel.

I should be grateful if Counsel would endeavour to agree a form of order giving effect to the decisions contained in this judgment.