Personal devices offer an infinite depth of data which brings with it a minefield of legal issues around disclosure. The experienced commercial litigation lawyers at ParrisWhittaker are experienced in advising on the terms of disclosure orders and are ready to provide urgent advice where disputes arise.
The UK’s appeal court recently ruled1 on the court’s approach to disclosure in relation to informal communications on personal devices in competition cases. The ruling has important persuasive authority on the courts in The Bahamas.
What’s the background?
Phones4U was one of the largest mobile phone retailers in the UK and went into administration in 2014. Phones4U Ltd (in administration) brought proceedings against eight mobile network operators.
It sought orders requesting disclosure from a number of former senior officers of the defendant companies who used their personal devices to send and receive work-related emails and messages relating to what the claimant alleged were anti-competitive arrangements. The High Court made an order requiring certain defendants to request specified ‘custodians’ voluntarily to produce personal devices and emails stored on them.
The IT consultants employed to do this were tasked with searching for responsive material, not to disclose any other material to the defendants or their solicitors, and to return the devices and emails to the custodians and delete/destroy any copies. A ‘disclosure review’ would then be undertaken by the relevant defendant.
The defendants appealed that order. There were a number of issues on appeal, particularly around whether the High Court actually had jurisdiction to make an order in the terms it did.
The appeal ruling
The Court of Appeal found that the judge had been entitled to direct the defendants to request their own custodians voluntarily to produce to IT consultants both their personal devices and all the emails stored on them – even though only the work-related items were under the employers’ control.
Importantly, the UK’s civil court procedure rules did not limit who could be asked to take part in such a search. Furthermore, third parties (eg IT consultants, as in this case) could be requested to make a search for relevant documents.
Was the order disproportionate in that it violated the defendants’ privacy rights and the protection of their own personal data? No, said the appeal judges: without the power to make such an order, it would not be able to deal effectively with alleged unlawful agreements which are, by their nature, covert.
The court said that individuals involved in such behaviour do, sometimes, deliberately avoid using work email and work devices to conceal their dealings. The court cannot therefore be left powerless to ensure that such hidden documents are disclosed. Also, it was pointed out that the order itself was drafted in proportionate terms and complied with data protection obligations.
What does this mean?
It’s clear the courts recognise the evidential value of informal digital communications where facts are disputed. Disclosure in such circumstances can be granted, even extending to requesting third parties to disclose if necessary, subject to necessary privacy protections.
How can we help?
If you need to obtain information from the emails or digital devices belong to someone else, you may be able obtain a disclosure order to secure this. Or if you have been served with a disclosure order and you want to resist it, you may have legal grounds to go back to court.
The solicitors at ParrisWhittaker are tenacious, experienced and willing to protect your interests robust. Get in touch with us as early as possible for specialist advice. Contact us at info@parriswhittaker.com
1Phones 4U Ltd (In Administration) v EE Ltd & Ors [2021] EWCA Civ 116
