Discovery In Amalgamation Claims

Bermuda appraisal proceedings are treated as a quasi‑inquisitorial process. The Court must appraise "fair value" and ensure that the valuation experts and the Court have all relevant material. In practice, this produces a robust discovery regime with the company bearing the primary burden to give wide, early disclosure of valuation‑relevant information, tempered by proportionality and case‑management controls. Dissenters also have discovery obligations, but these are more limited. The courts have also addressed difficult issues around documents of subsidiaries, privilege, electronic communications and third‑party materials.

This article is the third in our series on Bermuda appraisal proceedings, following our earlier publication on The Duties of Independent Directors in Amalgamations and Mergers.