CHINA MEDICAL TECHNOLOGIES, INC. (IN LIQUIDATION) AND ANOTHER v. PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP (a firm) AND ANOTHER

HCCL 3/2023

[2026] HKCFI 3509

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMMERCIAL ACTION NO. 3 OF 2023

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(Transferred from HCA 577/2015 and HCA 3272/2016 (Consolidated) pursuant to the Order of
the Honourable Mr Justice Anthony Chan dated 3 August 2023)

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D E C I S I O N

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1.  This is the Defendants’ application for specific discovery against the Plaintiffs in respect of four categories of documents. The factual background of the dispute has sufficiently been set out in the decision of G Lam J (as he then was) of 25 October 2019 ([2019] HKCFI 2631) at [4] to [40] and will not be repeated in this decision.

2.  The legal principles on specific discovery under RHC O.24 r.7 are well-established and are not in dispute. They were summarised in the Court of Appeal’s decision in Deak and Co (Far East) Ltd v NM Rothschild and Sons Ltd [1981] HKC 78 at 80H-81G (Barker JA) and in Hong Kong Civil Procedure 2026 at §24/7/2.

3.  The four categories of documents in respect of which the Defendants seek specific discovery are (A) KPMG documents, (B) investigation documents, (C) court filings and (D) covenants not to sue.

4.  In Mr Borrelli’s 7^th affidavit (in respect of which I give leave to file and serve), he confirms that no covenant to sue, or any equivalent arrangement or agreement, has been entered into between the Plaintiffs/liquidators and Mr Bruce. With this confirmation and the prior confirmations given by Mr Borrelli, the Defendants accept that they do not need to pursue with disclosure of the Category D documents.

5.  I shall deal with each of the first three categories in turn.

A.  KPMG DOCUMENTS

A1.  Pleadings, Witness Statements, Expert Reports, Transcripts and Written Submissions in the KPMG Action

6.  Under Category A, the Defendants seek disclosure of 3 sub‑categories of documents. The first sub-category consists of the pleadings, witness statements, expert reports, trial transcripts and opening/closing submissions in HCCL 7/2020 brought by the Plaintiffs against KPMG (“KPMG Action”). The trial of the KPMG Action commenced in September 2022 but was eventually settled.

7.  The Defendants’ basis for seeking these documents is that Plaintiffs’ allegations against KPMG in the KPMG Action, and the evidence underlying them, are relevant to the claims in the present proceedings against the Defendants. First, the Defendants contended that the Plaintiffs’ pleaded case in these proceedings put KPMG’s role, knowledge and actions into issue. The Defendants submitted that the assessment of what KPMG would have done in a counterfactual scenario cannot be assessed in a factual vacuum, and should take into account what KPMG actually did, its knowledge, and all the surrounding circumstances. Further, the Defendant gave examples to contend that the matters advanced by the Plaintiffs in the KPMG Action are “antithetical” to what the Plaintiffs have alleged in these proceedings. Finally, the Defendants submitted that there is no logical basis for the Plaintiffs to refuse disclosing these documents given they do not resist disclosure of the pleadings in the KPMG Action.

8.  The Plaintiffs do not oppose the disclosure of the KPMG Action pleadings because these documents are accepted to be relevant to the pleaded issue of double recovery. However, the Plaintiffs resist specific discovery of the remaining documents in this sub-category on the basis that they are irrelevant and unnecessary.

9.  I decline to exercise my discretion to order specific discovery in respect of the witness statements, expert reports, opening and closing written submissions and trial transcripts in the KPMG Action. My reasons are as follows.

10.  First, it is well-established that where a claim to seek a class of documents is made, the class must not be defined or described so widely as to include documents which are not relevant to the issue: Molnlycke AB v Procter & Gamble Ltd (No 3) [1990] RPC 498 at 502 (Mummery J). Although pleadings have to be looked at broadly for discovery purposes, it is still necessary for the party seeking specific discovery by reference to a class of documents to demonstrate that the class is not defined so widely so as to include irrelevant documents. In the present case, the Defendants seek documents by reference to certain classes of documents in the KPMG Action. In my view, it is unclear how the Defendants can justify that each document sought in the classes of documents relates to the discrete matters mentioned in paragraphs 26 to 28 and 33 to 34 of the Defendants’ skeleton submissions. Specifically, it has not been demonstrated by the Defendants how each of the witness statements, expert reports, written submissions or transcripts in the KPMG Action may be relevant to each of the pleaded discrete matters. The KPMG Action was an action for negligence against auditors. It is not difficult to see that the documents sought by the Defendants under this sub-category would cover matters concerning auditors’ negligence, which cannot on any view be a relevant matter in these proceedings. It seems to me that the classes of documents sought by the Defendants under this sub-category have been defined too broadly so that it may result in the disclosure of irrelevant documents. I am not persuaded by the Defendants’ submission that all classes of documents sought under this sub-category are relevant to the Defendants’ assessment of the counterfactual scenarios pleaded by the Plaintiffs.

11.  The Defendants submitted that whether or not a class of documents covers irrelevant materials is a question to be answered when determining whether the discovery order is necessary either for disposing fairly of the cause or matter or for saving costs, relying on what McWalters J said in Toeca National Recourses v Baron Capital (unreported, HCA 1913/2009, 31 May 2011) at [38]. I am not convinced that this question should only be considered at the necessity stage. If the class of documents is defined so widely so as to include irrelevant documents, that in my view is also a legitimate objection to refuse discovery.

12.  Secondly, if (contrary to my view) the Defendants can justify that all classes of documents sought under this sub-category are relevant, it is my view that their discovery is neither necessary for disposing fairly of the cause or matter nor for saving costs.

(1)  Documents of which discovery is necessary for the fair disposal of a matter in issue must at least have a demonstrable evidential materiality: O Company v M Company [1996] 2 Lloyd’s Rep 347 at 352 (Colman J).

(2)  I am unable to see how the various classes of documents sought under this sub-category can be said to have a demonstrable evidential materiality on the matters identified by the Defendants in paragraphs 26 to 28 and 33 to 34 of their skeleton submissions. In those paragraphs, the Defendants have only made an assertion that the parties’ pleaded cases put into issue “KPMG’s role, knowledge and actions”. However, it has not been sufficiently demonstrated by the Defendants that each class of documents sought are expected to yield information of evidential materiality to the pleaded claim or the pleaded defence in the broad sense, even in relation to issues of liability, causation and contributory/comparative negligence. Further, I am not persuaded that the underlying objectives of costs effectiveness, proportionality, and ensuring fairness between the parties in RHC O.1A r.1 are met if the court were to accede to the Defendants’ specific discovery application for this sub-category of documents.

(3)  The Defendants submitted that the evidence and submissions in the KPMG Action are necessary to ascertain whether the Plaintiffs’ positions taken in these proceedings are inconsistent with those taken in the KPMG Action. Specifically, the Defendants submitted that “the evidence and submissions in the KPMG Action (from both sides) may contain statements which undermine the position taken by [the Plaintiffs] in the present action”. However, it is well‑established that discovery should not be ordered on matters which would go solely to cross-examination as to credit: Thorpe v Chief Constable of Greater Manchester Police [1989] 1 WLR 665 at 669A-C (Dillon LJ). Insofar as the Defendants seek to rely on matters in the KPMG Action to show that the Plaintiffs had taken a position different to or inconsistent from that taken in these proceedings, it seems to me that the Defendants are essentially trying to undermine the credibility of the Plaintiffs’ case, which would need to be put to the Plaintiffs’ witnesses in cross-examination at the trial. To this extent, the Defendants are seeking specific discovery of documents which would go solely to cross-examination as to credit. This is an additional reason why the discovery of the requested documents under this sub-category cannot be said to be necessary for disposing fairly of the cause or matter or for saving costs.

(4)  The Defendants further contended that the evidence and submissions in the KPMG Action do not solely go to credit, and could be deployed to support the Defendants’ own evidence. One example may be given to illustrate this contention. The Defendants have pleaded in the present action that Paul Weiss LLP updated KPMG on a regular basis and received KPMG’s input on its investigative steps. The Defendants’ position is that the documents sought may corroborate the evidence to be adduced by the Defendants on this matter (that Paul Weiss LLP did in fact update KPMG on a regular basis and received KPMG’s input on its investigative steps). Insofar as the updates and inputs were in writing and recorded in contemporaneous documents, such documents should already have been disclosed by the Defendants. Insofar as the updates and inputs were oral, the Defendants would need to establish those facts by adducing evidence in these proceedings through their own factual witnesses. For the reasons given in the next paragraph, it does not assist the Defendants to contend that the oral updates and inputs may be found in the witness statements or trial transcripts in the KPMG Action. Accordingly, insofar as the documents under this sub-category are sought to corroborate the Defendants’ own evidence, it seems to me that their disclosure is not necessary for disposing fairly of the cause or matter or for saving costs.

(5)  The Defendants further submitted that the witness evidence and submissions filed in the KPMG Action are necessary documents to enable the court to ascertain the truth where KPMG witnesses will not give evidence at the trial in these proceedings. However, the evidence from KPMG witnesses in the KPMG Action is not automatically admissible in these proceedings. Even if becomes admissible, such evidence is subject to the weight to be attached by the trial judge. Therefore, I am unable to agree with the submission that the witness evidence and submissions filed in the KPMG Action are necessary to be disclosed in these proceedings.

13.  Thirdly, I am unable to agree with the Defendants’ submission that the Plaintiffs’ non-opposition to disclose the pleadings in the KPMG Action is inherently contradictory to their position taken in respect of the other documents under this sub-category. As explained in the Plaintiffs’ submissions, the pleadings in the KPMG Action are regarded as being relevant to the pleaded issue of double recovery. This is why the Plaintiffs confirmed in correspondence that they do not oppose an order requiring them to produce the pleadings. They also explained that a court order is required in order to avoid the consequences of breaching the restrictions of confidentiality to which the pleadings are subject. It seems to me that there is a rational explanation for the Plaintiffs to adopt a different stance in relation to the discovery of the pleadings in the KPMG Action. I am not persuaded that the Plaintiffs have adopted an inherently contradictory position as regards the documents sought under the current sub-category.

14.  For these reasons, as far as paragraphs 1 and 2 of the Schedule to the Defendants’ summons (“Defendants’ Schedule”) are concerned, I order that only the pleadings in the KPMG Action should be disclosed by the Plaintiffs.

A2.  All KPMG Documents Relating to the Anonymous Letter, its Investigations and Resignation

15.  The second sub-category of Category A consists of (1) all documents generated or received by KPMG in respect of the anonymous letter received by KPMG on 10 February 2009 (“Anonymous Letter”), and in respect of the investigation conducted into the allegations in the Anonymous Letter, and (2) all documents relating to KPMG’s resignation as the 1^st Plaintiff’s auditor.

16.  The Plaintiffs have confirmed that they would not resist an order requiring them to disclose and produce any documents in their possession, custody or control falling within paragraphs 3 and 4 of the Defendants’ Schedule. The parties are also in agreement that there should be a date range for the documents sought, namely from 4 February 2009 (the date of the Anonymous Letter) to 31 August 2009 (the last day of the month in which KPMG resigned). The Plaintiffs’ position is that they are unable to voluntarily disclose the documents sought and would need a court order to avoid being in breach of the contractual confidentiality restrictions.

17.  I consider that the documents sought under this sub-category are relevant and necessary, and order them to be disclosed by the Plaintiffs with the date range as agreed between the parties.

A3.  Settlement Agreement in KPMG Action

18.  The third and last sub-category of Category A relates to the settlement agreement between the Plaintiffs and KPMG in the KPMG Action.

19.  The parties are almost in complete agreement in relation to the discovery of this settlement agreement. There is no issue between them in relation to whether the document is the Plaintiffs’ possession, custody or control, the document’s relevance, or the necessity to disclose it. The parties further agree that some confidentiality restrictions are to be attached to the disclosure of the settlement agreement, namely (1) the settlement agreement is to be exhibited in a confidential affidavit from Mr Borrelli to be placed in a sealed envelope not available for inspection, (2) the confidential affidavit and its exhibits will not be referred to in open court and (3) the confidential affidavit and its exhibits will only be used for the sole purpose of these proceedings and must be returned or destroyed upon the final resolution of the proceedings.

20.  What the parties cannot agree upon is the aspect of the confidentiality restriction relating to the extent to which the settlement agreement should be made available to the Defendants and their legal representatives, and whether the individuals to whom it is made available should be specifically identified.

(1)  The Plaintiffs propose that the confidential affidavit and its exhibits be made available only to 2 members of the Defendants’ senior management, the legal team at Davis Polk assigned to the matter and counsel retained by the Defendants, and that the Plaintiffs are informed of the identity of the 2 individuals within the Defendants before they are provided with the confidential affidavit and its exhibits.

(2)  The Defendants consider that it is unduly restrictive to restrict access to the settlement agreement to only 2 members of the Defendants’ senior management. They suggest that access should be restricted to their in-house counsel, and other lawyers (including partners) designated by senior management to oversee the present litigation.

21.  I prefer the Defendants’ proposal of not limiting the number of individuals from the Defendants’ senior management who can have access to the settlement agreement. I agree with the Defendants’ submission that the Defendants, being reputable law firms, can be trusted to assign attorneys to read the settlement agreement and abide by the relevant confidentiality requirements. Nonetheless, I believe the Plaintiffs should be provided with the names of the individuals who have been provided with access of the settlement agreement so that they have some idea as to the identity of the persons to whom the settlement agreement is subsequently disclosed.

22.  I make an order that the document within paragraph 5 of the Defendants’ Schedule be disclosed subject to the confidentiality restrictions set out in paragraphs 17.1, 17.2 and 17.4 of the first letter from the Plaintiffs’ solicitors dated 10 February 2026 and paragraph 4 of the letter from the Defendants’ solicitors dated 8 May 2026, with a further requirement that the Plaintiffs and/or their solicitors be informed of the name and position of the individuals of the Defendants designated to oversee the present litigation to whom the settlement agreement is subsequently disclosed.

B.  INVESTIGATION DOCUMENTS

23.  As far as Category B is concerned, there are also 3 sub‑categories of documents sought by the Defendants. The first sub‑category, or paragraph 6 of the Defendants’ Schedule, seeks discovery of correspondence, interviews (formal or informal), and notes of discussions with Supreme Well’s representative(s), directors, putative beneficial owners and/or their associates.

24.  It is the Plaintiffs’ case that the Defendants ought to and could have identified, located, contacted and interviewed various individuals associated with Supreme Well, and ought to advise the Plaintiffs that Supreme Well was likely to the 1^st Plaintiff’s management and that the Plaintiffs should not make further payment to the Supreme Well Group. The Defendants therefore submitted that the documents sought under the first sub-category are relevant.

25.  The Plaintiffs’ position is that the requested documents are subject to litigation privilege, and are in any event irrelevant and unnecessary. In response, the Defendants contend that the Plaintiffs’ claim of privilege is defective and that in any event such a claim has been waived by the Plaintiffs when they disclosed certain documents in the same class.

26.  It is first necessary to determine whether the Plaintiffs’ claim for privilege has been properly made.

27.  RHC O.24 r.5(2) provides that “[if] it is desired to claim that any documents are privileged from production, the claim must be made in the list of documents with a sufficient statement of the grounds of the privilege”.

28.  Further, in Documentary Evidence in Hong Kong (2^nd ed, 2020), Mr Hollander KC explains at [14-001] to [14-003] the difference between making a claim for privilege in the list of documents, and the provision of further information on the documents in the privileged part of the list when a challenge to the privilege claim is made:

“Under O.24, the list of documents disclosed on discovery provides for the making of a claim for privilege under Sch.2 Pt 1. It was traditional permissible to list privileged documents by type or category rather than listing them individually, although such an approach was not permissible for non-privileged documents. This was because a detailed description of the documents for which privilege was claimed might be capable of undermining the privilege by revealing information ...

There was well-established authority to the effect that no detailed description of the documents for which privilege was claimed was necessary lest it might be capable of undermining the privilege by revealing information. The authorities on the specificity required in relation to a claim for privilege were reviewed in Derby v Weldon (No 7). ...

Whilst there is no difficulty in a generalised description of the claim for privilege in the standard case, there is Hong Kong authority[1] followed in England to the effect that where there is a challenge to the claim it may be necessary to provide more detail as to the documents in the privileged part of the list. ...”

29.  In Schedule 1 Part 2 of their lists of documents, the Plaintiffs have claimed privilege, amongst other things, in respect of:

(1)  “Communications and documents passing between the Plaintiffs and their solicitors ... for the dominant purpose of litigation either instituted or reasonably anticipated and documents and correspondence prepared by the servants and agents of the Plaintiffs for the sole use of the Plaintiffs’ solicitors and counsel to enable them ... to conduct this action, including memoranda drawn by the solicitors in each case being confidential communications passing between solicitor and client for the purpose obtaining legal advice or directly incidental thereto.”

(2)  “... statements and proofs of witnesses and legal opinions.”

(3)  “Communications and documents brought into existence, prepared or obtained for the dominant purpose of (i) litigation either instituted or reasonably anticipated ...”

30.  The Plaintiffs contended that all the documents sought in paragraphs 6, 7 and 8 of the Defendants’ Schedule are subject to the privilege claim asserted in their lists of documents. I note that prior to the taking out of the Defendants’ specific discovery summons dated 11 July 2025, the parties were already in correspondence in relation to the Plaintiffs’ claim for privilege. In their letter to the Defendants’ solicitors dated 12 June 2025, the Plaintiffs’ solicitors said:

“The Plaintiffs maintain a claim of privilege in respect of correspondence between them / the Liquidators and each of the independent directors. All such correspondence came into existence for the sole or dominant purpose of obtaining legal advice with regard to legal proceedings that had been commenced or were in contemplation at the time. That correspondence is therefore protected by litigation privilege.” [paragraph 17(a)]

“... the Plaintiffs have asserted a blanket claim of privilege over all documents created for the sole or dominant purpose of seeking legal advice with regard to proceedings that had been commenced by the Liquidators, or were in contemplation. The basis of that claim is axiomatic, and has been explained in our letter dated 2 November 2023.” [paragraph 41]

“To be more specific, the documents with respect to the Liquidators’ investigations over which they assert a claim of litigation privilege, include the following:

a. chronologies of events prepared by the Liquidators’ team based on reviews of documents, investigations and / or interviews;

b. Excel spreadsheets prepared by the Liquidators’ team recording receipts and payments as part of the fund tracing exercise;

c. notes of findings and observations prepared by or for the Liquidators’ team on certain issues;

d. the Liquidators’ correspondence in respect of their investigations; and

e. transcripts and notes of examinations and interviews conducted by the Liquidators.” [paragraph 42]

31.  In her 4^th affirmation to support the Defendants’ application for specific discovery, Ms Martin focused on the waiver of privilege on the part of the Plaintiffs. Nonetheless, at paragraph 49, Ms Martin said that the “documents over which privilege is claimed, and the basis on which the Plaintiffs are claiming and waiving privilege, remains unclear” and that the “Plaintiffs have not identified the documents over which litigation privilege is claimed save to state that they include the following categories [in paragraph 42 of the Plaintiffs’ solicitors’ letter dated 12 June 2025].”

32.  In his 5^th affidavit, Mr Borrelli referred to the Plaintiffs’ solicitors’ letter dated 12 June 2025 to reiterate the Plaintiffs’ claim for privilege over the Category B documents.

33.  In their skeleton submissions filed shortly before the hearing, the Defendants submitted that the “law requires the party claiming privilege to state its case with specificity and provide an adequate description of the documents”, citing K&L Gates v Melco Crown (unreported, HCA 1061/2011, 27 November 2017) at [24] (Lok J) and Re Kong Wah Holdings (above) at [62] (Kwan J). They further submitted that because inadequate particulars have been provided, the Plaintiffs have failed to discharge the burden to establish their claim for privilege.

34.  I am unable to agree with the Defendants’ submissions that the law requires a party claiming privilege to state its case with specificity and to provide adequate description of the documents at the outset.

(1)  I agree that the general manner for claiming privilege is as described in the above quotations from Mr Hollander’s book. The learned editors of Hong Kong Civil Procedure 2026 are also of the same view. At Note 24/5/50, the following is stated:

“As a general rule the list should specify the class of documents (eg ‘letters passing between the defendant and the defendant’s solicitors’) as well as stating the ground of privilege (eg ‘for the purpose of taking legal advice’) so that the court may see for itself on what ground privilege is claimed and that the class of documents is one to which that ground may properly apply.”

See also the commentary at Note 24/5/5.

(2)  Further, I respectfully agree with the following suggestions made by Mr Hollander at [14-006]:

“(a) Claims for privilege are invariably made in lists of documents in generic terms. That has always been the practice and nothing has changed.

(b) The court has power, when justified on the particular facts of the case to require a further and more detailed listing or supporting witness statement which requires particular of documents for which privilege is claimed.

(c) Where such an order is made different forms of order are possible, but nothing in the order must undermine the claim for privilege (by requiring the setting out of privileged details such as “letter to client advising settlement”).

(d) It will always be implicit in the order that it is not intended to undermine the claim for privilege so it must be answered in such a way that does not undermine privilege, and to the extent that it cannot be complied with without undermining privilege, the party would be entitled so to state by way of answer whilst complying with it so far as possible.”

(3)  In K&L Gates (above), Lok J followed an English decision and said at [24(i)] that “the court must be particularly careful to consider how the claim for privilege is made out and affidavits should be as specific as possible without making disclosure of the very matters that the claim for privilege is designed to protect”. However, that was clearly said in the context of a claim for privilege being challenged where an affidavit would have to be filed. This case does not assist the Defendants as regards the general position on how a party may claim privilege over documents.

(4)  The Defendants further relied on what Kwan J said in Kong Wah Holdings (above) at [65(4)] for the propositions that “it is not appropriate ... for a claim for privilege to be made simply en globo and by reference to classes of documents” and that the “appropriate method of describing privileged documents is to enumerate them ... and then to identify the bases upon which the privilege is claimed”. I note that her Ladyship simply noted the propositions from other authorities without expressly endorsing them. Importantly, Kong Wah Holdings was a case where the court had to deal with a claim for legal professional privilege in the context of an order made under the repealed s.221 of the Companies Ordinance (Cap 32). Kwan J at [51] recognised that s.221 did not have a procedure to deal with a claim for legal professional privilege, and held at [70] that there could be a “middle ground in requiring an adequate description of the privileged documents to enable the other side to assess the propriety of the claim that stopped short of a disclosure, directly or indirectly, of the contents of the document” in the s.221 context. I do not believe what Kwan J said at [65(4)] was intended to change the general practice of how a party should make a claim for privilege under RHC O.24 r.5(2).

35.  Nonetheless, it is necessary to consider whether there is scope for the Defendants to challenge the Plaintiffs’ claim for privilege of the classes of documents listed in Part 2 of Schedule 1 of their lists of documents in the present specific discovery application.

36.  At the hearing, the Plaintiffs accepted that it would be open to the Defendants to challenge a claim for privilege of documents in an application for specific discovery.

37.  Further, although Mr Borrelli has mentioned the matters referred to above on the Plaintiffs’ privilege claim in his 5^th affidavit, I note that Mr Borrelli has not said that the documents generated during the period from July 2012 (the date when the liquidators were appointed in the Cayman Islands) and July/August 2013 (the date when the Plaintiffs issued their writs in the Cayman Islands and Hong Kong) were brought into existence, prepared or obtained for the sole or dominant purpose of litigation.

38.  In my view, given that the Defendants have mounted a challenge on the Plaintiffs’ claim for privilege, I believe it would be incumbent on the Plaintiffs to file a further affidavit (“Further Affidavit”) to verify the various lists of documents where the claims for litigation privilege have previously been made. Further, in view of the broadness of how the various classes of documents have been described in Part 2 of Schedule 1 of the Plaintiffs’ lists of documents, I would, on the facts of this particular case, exercise my power to direct the Plaintiffs to provide in the Further Affidavit (a) a brief description of the nature (with some specificity) and date range(s) of the classes of documents in respect of which privilege is claimed (and specifying the type of privilege being claimed), and (b) a brief explanation of how the classes of documents in respect of which privilege is claimed relate to following classes of documents which I understand are being sought by the Defendants in this specific discovery application:

(1)  Correspondence, interviews (formal or informal), and notes of discussions between the 1^st Plaintiff’s liquidators and the various individuals associated with Supreme Well, namely the individuals identified in paragraph 148A of the Re‑Re‑Amended Statement of Claim.

(2)  Correspondence, interviews (formal or informal), and notes of discussions between the 1^st Plaintiff’s liquidators and the 1^st Plaintiff’s former independent directors (including Mr Iain Ferguson Bruce, Dr Lawrence Arthur Crum, Dr Li Yuedong and Mr Cole R Capener), in respect of the acquisition of the FISH and SPR technologies.

(3)  Correspondence, interviews (formal or informal), and notes of discussions between the 1^st Plaintiff’s liquidators and the 1^st Plaintiff’s professional advisors (including Credit Suisse, BMI Appraisals, Morrison & Foerster, Ernst & Young, A.T. Kearney, PwC and Deloitte) in respect of the acquisition of the FISH and SPR technologies.

39.  I should add that I do not agree with the Defendants’ suggestion that the Plaintiffs should identify in the Further Affidavit each of the documents over which they claim privilege. The Plaintiffs’ claim for privilege is in respect of classes of documents. It would in my view be sufficient and proportionate to require them to give a brief description of the nature of the classes of documents which are claimed to be privileged. I also disagree that it is necessary for the Plaintiffs to set out the identity of each of the individuals involved in the documents in the Further Affidavit.

40.  In preparing the Further Affidavit, the Plaintiffs should bear in mind what is set out in paragraphs 34(2)(c) and 34(2)(d) above.

41.  The Plaintiffs are to file and serve the Further Affidavit within 21 days from the date of this decision.

42.  In the light of the above, the court cannot proceed to determine the remainder of the Defendants’ specific discovery application as regards the Category B documents. I adjourn the Defendants’ summons dated 11 July 2025 in relation to paragraphs 6, 7 and 8 of the Defendants’ Schedule sine die with liberty to restore. When the parties are ready to restore the remainder of the Defendants’ summons, they should submit a joint letter to propose further directions for the court’s consideration.

C.  COURT FILINGS

43.  The Defendants seek discovery of documents under two sub‑categories in Category C. The first relates to the evidence and written reports provided by the 1^st Plaintiff’s liquidators to the winding up and bankruptcy courts in Hong Kong, the Cayman Islands, the United States reporting on or relating to the liquidators’ investigations into the FISH and SPR transactions, and the allegations made in respect of them in the Anonymous Letter.

44.  In Mr Borrelli’s 5^th affidavit, he states that “the Plaintiffs were prepared to (and subsequently did) make limited discovery of the affidavit and affirmation evidence filed by the Liquidators and on behalf of the Plaintiffs, to the extent that they contained information relevant to the status of the Liquidators’ investigations and findings”. He further states that the Plaintiffs do not consider any of the liquidators’ reports contains relevant information.

45.  The Defendants submitted that Mr Borrelli has not stated on oath that all the documents sought under this sub-category have been disclosed. I agree that that is a fair reading of Mr Borrelli’s 5^th affidavit. If the Plaintiffs have already provided all documents falling within this category to the Defendants, it would be very simple for Mr Borrelli to confirm that unequivocally in an affidavit.

46.  Accordingly, I order that the Plaintiffs to file and serve an affidavit within 14 days from the date of this decision to confirm that all the documents sought under paragraph 9 of the Defendants’ Schedule have already been disclosed to the Defendants.

47.  The second sub-category C relates to pleadings and evidence in related proceedings (“Related Proceedings”) seeking to recover consideration paid or allegedly paid under the FISH and SPR transactions.

48.  The Plaintiffs have disclosed and produced the statement of claim filed in the Related Proceedings on the basis that they may be relevant to the issue of double recover. However, the Plaintiffs oppose the disclosure of the other pleadings, the witness statements and expert reports filed.

49.  The Defendants submitted that it is reasonable to expect that further discrepancies may be found in the other pleadings and the evidence filed in the Related Proceedings, which will be relevant to the assessment of the Plaintiffs’ case and their credibility. Further, the Defendants submitted that the documents sought are likely to cover aspect of the Defendants’ investigation.

50.  I disagree with these submissions on the ground that the request is too wide and unnecessary. My reasons are the same as those given in paragraphs 10 to 12 above, with the necessary changes having been made. As far as the disclosure of the pleadings other than statements of claim are concerned, it is true that the Plaintiffs have not adopted an identical approach in relation to those in the KPMG Action. However, the burden is on the Defendants to establish that the classes of documents sought are not too wide and necessary for the fair disposal of the cause or matter or for saving costs. The Defendants seek the other pleadings in the Related Proceedings on the grounds, amongst others, that they are necessary to “address aspects of Paul Weiss’ investigation” and information “which bears on what Paul Weiss LLP supposedly could or should have discovered at the time when they conducted the investigation into the Anonymous Letters”. For the reasons given, I am unable to accept these submissions.

D.  DISPOSITION

51.  Accordingly, the documents that the Plaintiffs are ordered to disclose to the Defendants are (1) the pleadings referred to in paragraph 1 of the Defendants’ Schedule, (2) the documents referred to in paragraphs 3 and 4 of the Defendants’ Schedule, and (3) the document referred to in paragraph 5 of the Defendants’ Schedule subject to the confidentiality restrictions mentioned above.

52.  I also order that the Plaintiffs are to file and serve an affidavit within 14 days from the date of this decision to confirm that all the documents sought under paragraph 9 of the Defendants’ Schedule have already been disclosed to the Defendants.

53.  In respect of the documents referred to in paragraphs 6, 7 and 8 of the Defendants’ Schedule, I make the following orders:

(1)  The Plaintiffs are to file and serve a further affidavit to deal with the matters set out in paragraph 38 above within 21 days from the date of this decision.

(2)  The Defendants’ summons dated 11 July 2025 in relation to paragraphs 6, 7 and 8 of the Defendants’ Schedule is adjourned sine die with liberty to restore.

54.  I give leave to the Plaintiffs to file Mr Borrelli’s 7^th affidavit.

55.  I make an order that the costs of and occasioned by the Defendants summons dated 11 July 2025 be reserved, given that the summons has not been finally disposed of.

56.  The parties are directed to agree on the precise terms of the order to reflect the orders made in this decision and the terms of paragraphs 1 and 2 of the Defendants’ summons dated 11 July 2025 within 14 days from the date of this decision. In the event of disagreement, the parties are to write a joint letter indicating the extent of their agreement and disagreement.

57.  I give the parties liberty to apply.