LOL Surprise! There are still 800,000 documents under wraps
A judge has lambasted Fieldfisher for its "continued failure" during a disclosure process, which has resulted in a trial being delayed for over two years.
Fieldfisher is representing toy retailer MGA Entertainment, in its defence of a £170m dispute. MGA's products include LOL Surprise! dolls. The claimants, a toy-start up company called Cabo Concepts, had planned to launch its 'Worldeez products' in the UK but alleges it was forced to abandon the market because of an anti-competitive campaign by MGA.
A trial had been set to start in June 2022. But the court has had to adjourn it until October 2024, as MGA confessed that thousands of documents have been missed during the disclosure process. Over a million documents were harvested, but around 800,000 were missing. And nearly half of all potentially relevant documents were not reviewed.
The judge had said that proper disclosure was of "utmost importance" in this case, as it involves allegations concerning possible unlawful conduct recorded in emails.
"MGA’s disclosure exercise took the wrong course from the outset,” said Mrs Justice Joanna Smith in her judgment.
Cabo Concepts had originally requested that the disclosure was independently supervised, but this had been rejected by the case managing judge last year, as MGA gave assurances that the process would be overseen by e-disclosure specialists, including Fieldfisher lawyers and its document review provider.
However, Fieldfisher partner Nick Pimlott told the court that the firm had relied on MGA's IT team for the disclosure, as Fieldfisher did not have the expertise to supervise the harvesting of the documents.
Smith J said the "lack of supervision appears to lie at the root of the problems that then occurred", as MGA's IT team lacked the expertise for such a mammoth disclosure exercise. And Fieldfisher did not question the information that MGA provided, or consider whether it had adopted best practice.
In one cock-up where a key email was overlooked; the court heard that Pimlott was "not unduly alarmed" and commented that disclosure was an "imperfect process and errors occur."
The judge criticised the approach. “There was no sound basis" for Pimlott to "conclude that the missing email, described by MGA as ‘a mystery’, was of minimal significance and could effectively be ‘parked’ without further investigation,” said Smith J. "It was plainly a red flag and it should have been investigated".
Pimlott also provided an inaccurate witness statement, as he claimed an independent e-disclosure specialist had redone the exercise. However, his comments were contradicted by the specialist - which resulted in Pimlott having to retracting parts of his statement.
“It is hard to understand how the partner with joint conduct of the proceedings on behalf of MGA could have made such an error, regardless of the pressurised circumstances in which Mr Pimlott was no doubt operating,” said Smith J.
In a chastising conclusion, Smith J said: "This conduct (by which I mean the deficient re-harvesting and the subsequent evidence of Mr Pimlott) is perhaps best seen as part of a continuing failure adequately to grapple with the need for proper supervision and oversight of the disclosure process."
She continued: "Belatedly Mr Pimlott appears to have appreciated that need, but failed to put in place adequate measures to provide for it. I consider that this conduct was unreasonable (and unreasonable to a high degree) and...it was out of the norm."
Smith J ordered MGA pay costs of the aborted trial on an indemnity basis, with 45% of the claimant's £1.3m costs awarded on account.
“No client should ever have to see their case come to a shuddering halt when it could have easily been avoided," said Cabo's solicitors.
Fieldfisher declined to comment.