William Ralph Clayton, William Richard Clayton, Douglas Clayton, Daniel Clayton and Bilcon of Delaware Inc. v. Government of Canada, UNCITRAL, PCA Case No. 2009-04, Procedural Order No. 12 (May 2, 2012)
1. In this Order, the Tribunal addresses certain of the Disputing Parties’ contentions concerning their respective privilege claims in the document production process. As a preliminary matter, the Tribunal recounts the relevant procedural history.
II. Procedural History
2. In Procedural Order No. 3 dated June 3, 2009, the Tribunal set out the procedure for document production. The Tribunal ordered the Disputing Parties to exchange simultaneous document requests, following which the requested Party would have 30 days to state which documents it refused to produce.
3. On September 11, 2009, the Investors submitted their Application for Document Production in the form of a Redfern Schedule, a privilege log, general observations on the Respondent’s objections and a letter setting out their objections to the Respondent’s requests on grounds of legal privilege and/or political or institutional sensitivity.
4. On the same date, the Respondent submitted its Redfern Schedule, attaching an explanatory note on issues pertaining to document production, including privilege. 5. On October 13, 2009, the Disputing Parties provided the Tribunal with additional submissions regarding their privilege claims.1
6. Following a case management meeting with the Disputing Parties on October 16, 2009, the Tribunal issued Procedural Order No. 7 dated November 20, 2009, in which it defined the process for the further production of documents and considerations of privilege. Regarding the latter, the Tribunal determined that the Disputing Parties would prepare and submit privilege logs after having produced all documents for which no privilege is claimed.