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Disclosure Pilot Scheme: meaning of control over third party documents | Allen & Overy LLP
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The proliferation of short messages falling into the scope of discovery or disclosure is unabated. These can be mobile SMS texts or instant messages from popular applications such as WhatsApp, Viber, Slack, Skype and MS Teams.
) is a prime example of the courts recognising the significance of short messages. When an application for Extended Disclosure under the Disclosure Pilot was made, Mrs. Justice Cockerill had to consider the control and ownership of personal mobile devices belonging to key witnesses, as well as the reasonableness and proportionality of ordering their review.
Facts
The Performing Right Society (PRS) Limited issued proceedings against Qatar Airways Group QCSC for global copyright infringement concerning the use of PRS s repertoire works in Qatar Airways in-flight entertainment system, including two associated apps.(1)
PRS claimed that the inclusion of its repertoire works in Qatar Airways in-flight entertainment system involved two acts which required PRS s licence as the copyright owner – namely:
public performance; and
communication to the public.
With respect to UK law, PRS relied on Sections 19 and 20 of the Copyright, Designs and Patents Act 1988. It sought injunctive relief to restrain such infringement and damages.
Procedure
Given the global nature of the dispute, the parties considered how to address the foreign law aspects of the claim in a proportionate manner. With that in mind, and in advance of the case and costs management hearing, the parties agreed that there should be a preliminary issues trial at which liabilit
Background
The underlying dispute involved an alleged plan by the defendant to seize control of a Georgian fertilizer plant that belonged to the claimant. The Court had previously made an Extended Disclosure order under the Disclosure Pilot Scheme, and the claimant subsequently applied to vary that to include a search of emails, text messages, and WhatsApp messages on the personal mobile phones of two of the defendant’s key witnesses its former CEO (Witness One) and the former General Counsel of its Georgian subsidiary (Witness Two) and emails held by the defendant.
The defendant admitted that both witnesses had used their personal phones to discuss matters that were central to the dispute. The issue was whether the documents were within the defendant’s control and therefore subject to disclosure under the Pilot Scheme. Although the two witnesses were not party to the proceedings and their phones were private property, the defendant had a contractual relationship with Witne
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