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Message
From: Ben Foat} GRO. Hl
Sent: 20/10/2019 20:
To: Emanuel, Catherine I; Rodric Williams _ Veronica
Branton [¥
ce: Watts, Alan
Kenneth Garvey Lerner, Alex [/
Subject: RE: KEL documents [WBDUK-AC.FID26896945]
Thanks Kate
Rod / Veronica — this will need to go to the Board sub-committee for a decision on Tuesday. Just to be clear:
1. Audit — to be limited to the process of KELs extraction
2. Analysis — not to review the remaining 14000 scripts noting that the ones that were disclosed at trial where the
ones that were relevant to a fact in issue and therefore we only need to review the previous versions of those. If
the claimants’ solicitor request all then we need to have a position on that , which is?
Thanks
Ben
Ben Foat
Group General Counsel
und Floor
20 Finsbury Street
LONDON
EC2Y 9AQ
Mobile
From: Emanuel, Catherine
Sent: 19 October 2019 16:03
To: Rodric Williams &
Cc: andrew.parsons
Watts, Alan
Kenneth Garvey 7 ; Lerner, Alex ¢
Subject: RE: KEL documents [WBDUK-AC.FID26896945]
All,
{set out below a slightly revised version of Rod's draft update which has been discussed today between HSF, WBD and
Tony Robinson QC. As any voluntary review risks producing adverse material (feeding into the C's case that the bugs
disclosed thus far are the “tip of the iceberg"} we wanted to be clear on the scope of Post Office's current disclosure
duties before making any recommendations.
¢
These are deceptively complex questions so happy to discuss if anyone has comments or queries. lam ont
Kind regards
Kate
introductory Comments
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e The key legal risk underpinning these analyses is the ongoing duty in the GLO litigation to disclose adverse
documents which come to Post Office's attention as a result of any voluntary form of review work.
New KELs
¢ Past Office has approached its review of the back-versions of the KELs in light of its legal obligations. In that
regard, the KELs fall into twe categories: (4) those relied upon by the Claimants at trial (658); and (2) these
disclosed to, but not relied upon by the Claimants (14,000). The Claimants have requested back-versions of the
first category of KELs but not the second (the Claimants have asked whether Post Office will pay the costs of
reviewing the second category},
¢ WEBD has prioritised the review of the first category of KELs (ie. the 658):
© Of these, the majority (Le. 85%) contain no new information (or inconsequential new information). The
remaining 15% {L.e. 94 } do contain new information.
o WBD and counsel are assessing whether any of that new information could be of relevance to the
Horizon Issues trial and we expect to have an update on progress by Tuesday's Subcommittee
meeting.
o. if any of the new information is relevant (or the Claimants take the position that it is relevant), the risk is
that the Horizon trial is re-opened and/or the judgment is delayed. There is nothing that can be done to
mitigate that risk.
In relation to the second category of KE!
© Leading counsel has advised that Post Office presently has no obligation to review these documents.
o. The key risk of doing so before the Claimants have asked for them is that we identify adverse documents
amongst them which we are then obliged to disclose as adverse. This would be doing the Claimants’
work for them. (If the Claimants do ask for these KELs, we are entitled to provide them without
signposting which we consider to be adverse).
©. The legal advice therefore is that we should not review the 14,000 other KELs. We van revisit that
decision if the Claimants ask for the documents, or Counsel's review of the 94 reveals information which
warrants a wider review.
e = WBD and HSF will between them work together to deliver such a review if required as expeditiously as possible.
.
Audit
e The question of whether to do an audit and, if so, what its scope should be is a difficult question; all the
potential approaches create risk.
e The legal team consider that, as a practical matter, any such audit should in the first instance be confined to a
review of the process undertaken to extract the KELs.
e The results of that audit can then inform a decision as to what further steps (if any) should be taken.
From: Emanuel, Catherine
Sent: 19 October 201911:01
To: 'Rodric Williams’ ¢ GRO >; Ben Foat <
Cc: andrew.parsons Lerner, Alex <
‘Watts, Alan
Kenneth Garvey ¢ GRO
Subject: RE: KEL documents [WBDUK-AC.FID26896945]
Rod,
As promised I have been liaising with Alan this morning and we have a few comments.
I will send a revised draft shortly.
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Andy ~ are you around for a brief word?
Cheers
Kate
From: Rodric Williams
To: Ben Foat <"
Cc: Emanuel, Catherine
iLerner, Alex
Sherrill Taggart
; Tom Beezer
; Kenneth Garvey!
Subject: FW: KEL documents [WBDUK-AC.FID26896945]
Ben,
Please find attached an updated Board update. Set out below are the key notes to address the points from your email
n “what would it take to get all of [the KEL review] done by next week”, and “what is the scope [of a Fujitsu audit] that
would diminish the risk [of creating documents that would then need to be disclosed to the Claimants]”.
External Lawyers — please comment/amend as necessary asap so that Ben can update the Board this morning!
Generally
e {have stressed (firmly) to the HSF and WBD teams the importance of this workstream. It is being escalated to
Alan Watts at HSF and Tom Beezer at WBD to make sure our Board’s requirements are met (both cc’ed).
e The key legal risk here is the ongoing duty in the GLO litigation to disclose adverse documents, which may not
exist (or which we may not have been aware of) but for taking the action now contemplated, especially in the
context of material we had not previously seen.
New KELs
e WBD are assessing the risk over the weekend of the 94 newly disclosed high-risk KELs. By the middle of next
week, Counsel will have reviewed these KELs in detail and given a view on whether they are likely to cause the
Horizon trial to be recommenced / the judgment delayed (the Counsel team being best placed to identify the
impact they may have on the trial they conducted).
e Inrelation to the other KELs not used at the trial (i.e. the majority of the c.14,000 new KELs), the key risk of
reviewing these is that the Claimants have not yet asked for the documents, so by reviewing them now we are
doing the Claimants' work for them.
The legal advice therefore is that we should not review the 14,000 other KELs unless the Claimants ask for them,
or Counsel's review of the 94 high-risk KELs warrants a wider review.
e WBD and HSF will nevertheless confirm resources to deliver such a review as required.
e By way if further background since the last update, having now considered the previously undisclosed KELs:
© Many (maybe up to 50%) could be duplicates of previously disclosed documents, but because the KEL is
a live database, the KELs could not be extracted in a way to avoid this duplication. This means a
manual/slower “de-duplication” review is required.
If the new KELS are to be reviewed at pace (i.e. so that they are all reviewed by the end of next week),
the trade off will be quality/assurance. A paralegal team is less qualified than the smaller, elite team of
lawyers who ran the trial to assess the relevance of the new KELs to the matters in issue in the Horizon
Issues trial. Having paralegals undertake the review therefore creates the risk of inaccuracies in the
review process, which is compounded by the technical nature of the KELs.
Audit
e The best way to mitigate the risk of generating adverse/disclosable documents through an audit is to keep it
focussed on Fujitsu’s litigation support provided to date, with any operational audit to follow once the litigation
has been resolved and its associated disclosure duties concluded.
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Please let me know if you need anything further.
Kind regards, Rod
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