A leading City firm has been accused of ‘inadequate’ oversight which led to almost 85,000 documents being missed and a trial delayed by more than two years. Fieldfisher and its client, US toy maker MGA, were said to have failed to fulfil a pledge to the court to ensure proper disclosure in the build-up to a trial listed to commence last month.
MGA informed the court three weeks before trial that documents had been missed during the data collection process. Its opponent, toy developer Cabo, alleged that the review process had ‘serious flaws’ and was ‘characterised by poor choice of methods and inadequate supervision and oversight’. The trial is now listed for October 2024.
Ronit Kreisberger QC, for Cabo, told the High Court yesterday that MGA and Fieldfisher ‘turned a blind eye to warning signs’ and said the defendant and its solicitors were ‘passing the buck’ over who was to blame for the disclosure failures. Staff working on disclosure were ‘too junior, too inexperienced or reluctant to take charge’, Kreisberger told the court, suggesting these were ‘institutional failures which undermined the whole process’.
She added: ‘Even now the original problems have emerged, it is apparent that neither Fieldfisher nor MGA properly appreciate what full compliance with their disclosure obligations requires, with MGA’s IT team continuing to make basic errors and Fieldfisher continuing to maintain that the re-harvest process is robust.’
The case concerns an alleged secret campaign by MGA to stifle Cabo's launch of a new toy in competition with an MGA brand. It was alleged that MGA had threatened retailers who planned to stock the Cabo toy with black-listing on its own products.
At a case management conference last year, Recorder Douglas Campbell QC made an extended disclosure order after the defendant told the court it would deal with document capture internally and that the process would be supported and supervised by e-disclosure specialists including Fieldfisher.
The court heard that expert advice to ‘harvest’ documents without any filtering was not followed, and documents were filtered by date range at the point they were first collected.
Further oversights caused almost 400 documents to never be reviewed: Fieldfisher considered whether to separately review documents, but took the view this would be unnecessary. An email from a Fieldfisher partner set out that the firm was ‘not unduly alarmed’ by a particular email not being harvested as ‘reality is that disclosure is an imperfect process and errors occur’.
Victoria Wakefield QC, for MGA, argued that much of the preparatory work for the trial had been done. ‘MGA of course apologises for these errors and for being in front of you today,' she said. 'None of this should have gone wrong and we don’t for a moment underestimate the impact on the claimant.’
In a short oral judgment, judge Dame Joanna Smith ruled that costs by the adjourned trial date should be paid on an indemnity basis, with an order that MGA pay an interim 45% of the £1.5m claimed. Reasons will be published in due course.