By a decision dated 27 January 2026 in Unicorn Biotech Ventures One Ltd (in its capacity as general partner of Rigmora Biotech Investor One LP) & Anor. v ATP III GP, Ltd (No. 3) [2026] CIGC (FSD) 5, the Grand Court confirmed that where parties agree that documents produced in foreign proceedings will be admissible in Cayman proceedings, this can result in a waiver of any right to assert privilege over those documents in the Cayman proceedings. Such a waiver can be effective even if it was provided before any specific documents had been identified or produced in the foreign proceedings. This decision underscores the need for caution in how parties frame and record their positions on privilege throughout the litigation process.
Background
Three sets of proceedings arose from disputes between two limited partners (the “LPs”), who held about 98% of the economic interest in a Cayman Islands exempted limited partnership (the “Fund”), and the Fund’s general partner (the “GP”). Following a breakdown of the relationship between the GP and the LPs: (i) on 30 May 2025, the GP commenced proceedings against the LPs before the Court of Chancery in the State of Delaware (the “Delaware Proceedings”); and (ii) in early June 2025, the LPs issued a writ action in the Grand Court of the Cayman Islands against the GP and also filed a petition to wind up the Fund on the just and equitable basis (the “Cayman Proceedings”). Expedited timetables were put in place for all three sets of proceedings.
In the Delaware Proceedings, the parties agreed a “Confidentiality Stipulation” dated 21 July 2025 (the “Delaware Confidentiality Stipulation“), which permitted the parties to use any discovery material from the Delaware Proceedings in the Cayman Proceedings, provided the parties used reasonable efforts to put in place arrangements in the Cayman Proceedings to protect the confidentiality of the documents. Shortly thereafter, the GP provided discovery in the Delaware Proceedings, but took the position on 30 July 2025 that it was entitled to withhold a large number of documents on the basis that they related to legal advice provided to the GP in its capacity as general partner of the Fund. The LPs disputed this, including on the basis that the GP had taken the position that the parties’ relationship did not break down until 15 May 2025, and therefore could not assert privilege against the LPs under Cayman law for advice received prior to that date (per the rule from Re Torchlight Fund LP (unreported, 6 April 2016)). On 17 August 2025 the LPs brought an application in the Delaware Proceedings seeking orders compelling the GP to produce the documents that it had withheld (the “Motion to Compel“).
Meanwhile, in the Cayman Proceedings, the parties agreed to consent orders on 20 August 2025 that provided that any documents disclosed in the Delaware Proceedings “shall be admissible and may be relied upon at trial” (the “Consent Orders”). The parties also began negotiating a discovery protocol that would govern the separate discovery process to occur in the Cayman Proceedings (the “Discovery Protocol“). During negotiations of the Discovery Protocol the GP’s Cayman attorneys made numerous statements confirming that documents discovered in the Delaware Proceedings would automatically be able to be used in the Cayman Proceedings.
Disaster then struck for the GP. In response to the Motion to Compel, on 2 September 2025 the Delaware Court ordered an independent special discovery magistrate to review a sample of 100 of the documents the GP had withheld in order to determine whether the GP was legitimately entitled to withhold them. The outcome of this review was damning: 60% of the documents reviewed had been improperly withheld by the GP. The Delaware Court stated that it was “blowing up privilege” and issued an order on 8 September 2025 requiring the GP to produce all of the documents that it had withheld, even if some of those documents were in fact privileged (the “Compelled Documents“).
The GP’s application in the Cayman Proceedings
Against that backdrop, the GP then sought to prevent the Compelled Documents from being used in the Cayman Proceedings. Specifically, the GP sought a declaration from the Court that for the purpose of the Cayman Proceedings the GP had not lost privilege in respect of the Compelled Documents as against the LPs, whether by their production to the LPs in the Delaware Proceedings and/or by the Consent Orders. The GP did not bring this application until after it had already complied with the Delaware Court’s order to produce the Compelled Documents. In other words, through its application the GP was seeking to prevent the LPs from being able to use in the Cayman Proceedings documents that: (i) the LPs had already seen; and (ii) were able to be used in the Delaware Proceedings.
Decision
The Court reaffirmed the orthodox position that: (i) issues of privilege are governed by Cayman law as the lex fori; (ii) it is possible for a party to disclose documents on terms which do not waive privilege over those documents, or only result in privilege being waived for certain purposes but not others; (iii) a loss of privilege in foreign proceedings does not necessarily preclude a party from asserting privilege in Cayman proceedings; and (iv) if a litigant is compelled by a court to give disclosure of documents this will not necessarily result in a voluntary waiver of privilege.
However, on the facts, the Court held that the parties had agreed to waive privilege over any documents produced in the Delaware Proceedings. That conclusion primarily followed from the combined effect of the Delaware Confidentiality Stipulation and the Consent Orders, which clearly demonstrated that the GP had agreed in advance that any documents produced in the Delaware Proceedings could automatically be used in the Cayman Proceedings. The Court also found it significant that:
- When the GP agreed to the arrangements in place by the Consent Orders it knew that the LPs were challenging the GP’s privilege claims in the Delaware Proceedings, and therefore would (or should) have known there was a risk that the Delaware Court may make decisions on privilege that were adverse to the GP. Despite this, the Consent Orders did not include any qualification reserving to the GP the right to asset privilege over discovery material from the Delaware Proceedings.
- In initial correspondence between the parties and with the Court the GP’s Cayman attorneys had repeatedly taken the position that documents from the Delaware Proceedings would be admissible in the Cayman Proceedings. Although the GP’s attorneys subsequently changed position, by that stage it was too late: the GP had already waived privilege as a consequence of the Delaware Confidentiality Stipulation, the Consent Orders, and the production of the documents in the Delaware Proceedings.
- Finally, the terms of the Discovery Protocol that was eventually agreed did not allow for privilege claims to be made over documents that had been produced in the Delaware Proceedings. Instead, the Discovery Protocol only contemplated the possibility that privilege might be asserted over documents disclosed by way of additional discovery in the Cayman Proceedings (rather than documents that had already been discovered in the Delaware Proceedings). Likewise, certain features of the Discovery Protocol were fundamentally inconsistent with an intention that the parties would be able to raise issues of privilege under Cayman law in respect of the Delaware discovery, including: (i) the exclusion of the requirement to include the Delaware discovery in the lists of documents provided in the Cayman Proceedings; and (ii) the exclusion of the requirement to prepare a separate privilege log for the discovery from the Delaware Proceedings.
Key takeaways
The decision is fact‑specific and turned on the parties’ common intention (as objectively ascertained). Nonetheless, it underscores several key points:
- Litigants can provide advance waivers of privilege: Where parties agree that foreign discovery will stand as discovery in Cayman and will be admissible and usable at trial, the Court is likely to hold them to that bargain. Such an agreement can amount to an advance waiver of Cayman privilege, even before the litigant has actually produced any documents in the foreign proceedings. In other words, it is possible to waive privilege without knowing the specific documents that the privilege waiver will apply to.
- Relevance of contemporaneous evidence when assessing whether a party intended to waive privilege: When ascertaining the parties’ common intention, the Court will consider all contemporaneous evidence, including inter partes correspondence and draft versions of agreements. In this case, the GP’s application was undermined by various statements made by the GP’s legal representatives at the time that the Consent Orders and Discovery Protocol were negotiated, as well as statements that the GP’s legal representatives made to the Court. Accordingly, litigants should take care at all stages of a proceeding to communicate their position on privilege clearly and consistently.
- The importance of considering all conceivable scenarios and the risks in each relevant jurisdiction when agreeing to cross-border discovery arrangements: Agreements allowing for documents discovered in foreign proceedings to automatically be used in Cayman proceedings can be invaluable for streamlining cross-border litigation. However, before entering into any such agreement it is essential that Cayman litigants have the benefit of comprehensive legal advice on the potential consequences. In this case, uncontested evidence from an independent Delaware law firm explained that it is common for Delaware courts to respond to improper claims of privilege by making orders requiring the production of all documents regardless of whether they are in fact privilege. Despite this, the position taken by the GP in its evidence was that it was surprised when the Delaware Court (to paraphrase its own words) ‘blew up’ the GP’s privilege claims in the Delaware Proceedings.
- The impact of Jardine in an exempted limited partnership context is unsettled: As the GP had not positively advanced an argument that the Compelled Documents were in fact privileged (it instead only sought orders that it had not waived any privilege that may exist), the Court did not consider the impact in an exempted limited partnership context of the recent Privy Council decision in Jardine Strategic Limited (Appellant) v Oasis Investments II Master Fund Ltd [2025] UKPC 34. In Jardine the Privy Council abolished the “shareholder rule” and held that a company is entitled to assert privilege against shareholders in regards to legal advice provided to the company. However, key dissimilarities exist between companies and exempted limited partnerships. It is therefore presently unsettled whether the rule in In re Torchlight Fund LP – that a general partner cannot assert privilege against a limited partner in respect of advice provided to the partnership – will be displaced by Jardine.
Liam Faulkner, Hugo Farmer, Yuan Wen and Jordie Fienberg of Campbells LLP, act for the Petitioners / Plaintiffs in the Cayman Proceedings.
