The High Court proposed extending the deadline for discovery in three Madoff-related proceedings to 16 March 2012, with staged disclosure applying to all parties except Thema. The proposal remained subject to HSBC Institutional Trust Services (Ireland) (HTIE) filing affidavit evidence about its preparation for discovery, and the judge said counsel would be heard further on the timetable for staged disclosure.
Mr Justice Clarke delivered the judgment on 17 October 2011 in proceedings brought by Thema International Fund plc against HTIE, with Thema Asset Management Limited and 2020 Medici AG named as third parties. The application concerned discovery deadlines in the Thema, Kalix and UBI Banca proceedings, which were being managed together. A separate A.A. case had already received an agreed arrangement and was not part of the dispute addressed here.
HTIE sought more time to complete discovery. Kalix opposed the length of the extension, while Thema, Thema Asset Management and UBI Banca did not oppose HTIE’s application. Thema sought until the end of March. The judge considered HTIE’s estimate that it could finish by the end of February reasonable, given the remaining work and the cost of completing it faster. But he said he first needed evidence that HTIE had taken timely steps to identify, assemble and upload documents, and to begin any process needed to release documents held abroad.
The court also considered “rolling discovery”: providing non-privileged documents in stages before a final discovery affidavit. Thema said it lacked resources to participate. The judge proposed that the other parties exchange at least four tranches, each covering at least 25% of the anticipated discovery, with full discovery completed by 16 March 2012. Thema would provide and receive full discovery by that date, but would not take part in the staged exchange. Counsel were to address the precise timetable further.
The judgment set out general observations on managing large-scale discovery, including proportionality, reasonable preparation before a discovery order, and the costs of the method chosen. It did not determine the underlying claims or make a final order granting HTIE’s extension: the proposed extension depended on the further affidavit and the court’s consideration of it.