Two recent English cases illustrate the court’s receptiveness to disclosure orders in relation to informal communications on personal devices.
In two recent decisions, the English Court has demonstrated a pragmatic and targeted approach to ordering disclosure of material held on personal devices of third parties, and a recognition of the value of informal communications as evidence of disputed factual allegations. The decisions are discussed below.
Regardless of whether disclosure is sought under the existing provisions of the Civil Procedure Rule (CPR), or the Disclosure Pilot Scheme, the Court will apply the principle of proportionality in making or varying an order for disclosure. Notably, while the Court is mindful of the privacy rights of individuals, there is increasing recognition that work is carried out on personal electronic devices (including over more informal channels such as WhatsApp), any mingling of personal and work data will not itself be sufficient to circumvent a disclosure order.
Disclosure Pilot Scheme — Pipia v BGEO Group Ltd (formerly BGEO Group Plc)  EWHC 86 (Comm)
The underlying dispute involved an alleged plan by the defendant to seize control of a Georgian fertilizer plant that belonged to the claimant. The Court had previously made an Extended Disclosure order under the Disclosure Pilot Scheme, and the claimant subsequently applied to vary that to include a search of emails, text messages, and WhatsApp messages on the personal mobile phones of two of the defendant’s key witnesses — its former CEO (Witness One) and the former General Counsel of its Georgian subsidiary (Witness Two) — and emails held by the defendant.
The defendant admitted that both witnesses had used their personal phones to discuss matters that were central to the dispute. The issue was whether the documents were within the defendant’s control and therefore subject to disclosure under the Pilot Scheme. Although the two witnesses were not party to the proceedings and their phones were private property, the defendant had a contractual relationship with Witness One under which it had the right to access information on the phone.
Practice Direction (PD) 51U.18 allows the Court to vary an order for extended disclosure at any stage, including by making an additional order for disclosure of specific documents or narrow classes of documents relating to a particular issue.
The Court first had to consider whether the phones were within the control of the defendant. The control issue did not arise in respect of the defendant’s emails, as the relevant email accounts were on the defendant’s servers.
Whilst there is no requirement to show a change in circumstances to vary a pre-existing order, the claimant, as the party seeking an order under PD 51U.18.1, also needed to satisfy the Court that variation was “necessary for the just disposal of the proceedings and is reasonable and proportionate” (PD 51U.18.2).
In relation to Witness Two, Cockerill J held that Witness Two’s former contractual relationship allowed his employer (the defendant’s subsidiary) to require him to disclose the contents of his phone. In addition, the subsidiary had a duty to provide documents to the defendant as its parent company. However, Cockerill J held that this indirect chain did not mean that Witness Two’s personal devices were in the defendant’s control as the parent company. Further, Cockerill J rejected the argument that Witness Two may have owed fiduciary duties to the defendant, both because there was insufficient evidence of this and it would be a question of Georgian law, which the Court could not deal with in the context of the present application. Cockerill J therefore held that the contents of Witness Two’s phone could not be disclosed under the Pilot Scheme.
However, Cockerill J concluded that the contents of Witness One’s phone should be disclosed. In contrast to Witness Two, Witness One’s service agreement was directly with the defendant, which was entitled to access his personal devices both under the terms of that contract and by virtue of Witness One’s fiduciary duty to the defendant at common law, which was not limited by the terms of the contract.
The underlying case was a competition claim brought by the claimant against a number of mobile network operators. The claimant applied for orders requiring the defendants to request disclosure from certain of their former senior officers, who may have used their personal devices to send and receive work-related emails and messages relating to the alleged anti-competitive arrangements.
The disclosure regime for competition claims is set out in PD 31C. PD 31C.1.7 provides that CPR 31 applies to the extent that it is consistent with the specific provisions on disclosure and inspection of evidence in relation to competition claims.
At first instance, Roth J in the High Court made an order requiring certain defendants to write to specified employees and former employees (Custodians) to request that those individuals voluntarily provide certain e-disclosure providers (IT consultants) engaged by the defendant with access to their personal mobile phones and emails, to enable the IT consultants to search for work-related communications. Pursuant to the order, the IT consultants were to search 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 or destroy any copies. The relevant defendant would then review the communications for relevance in the disclosure exercise. In his judgment (but not in his order), Roth J had included a direction (referred to as a “rider”) that, when writing to the former employees, the defendants should not highlight that compliance with the request would be voluntary.
The defendants appealed the order and its terms.
The Court of Appeal considered three main issues:
- Whether Roth J had jurisdiction to order a party to request that the Custodians (who were third parties to the dispute) voluntarily produce personal devices and emails stored on them (the Jurisdiction Issue)
- Whether Roth J was justified in including the rider in his judgment, but not in his order, that the defendants ought not to tell the Custodians that they were entitled to refuse it (the Rider Issue)
- Whether the mechanism directed by Roth J involving the IT consultants was appropriate and proportionate (the Proportionality Issue)
The Court of Appeal held that the Court did have jurisdiction to require ex-employees to produce their personal devices and emails, notwithstanding the fact that only the work-related items were under the employers’ control. The Court noted that CPR Part 31.5(8) provides a power to direct “how disclosure is to be given”, including “what searches are to be undertaken, of where, for what, in respect of which time periods and by whom and the extent of any search for electronically stored documents”.
Vos MR noted that the parties had all proceeded on the assumption that the personal devices in question were not, themselves, within the control of the defendants, which he acknowledged was a complex point.
However, the Court found that the CPR contained no limitations on who could be asked to participate in a search and, in particular, was not limited to people who could be compelled to participate.
The Court of Appeal acknowledged that the rider in Roth J’s judgment had “unlevelled a playing field that was otherwise level”. While the Court acknowledged it would not overturn the judge’s order on this ground alone, it considered that Roth J “would have been better to avoid suggesting outside the order what was not within it”. In any case, if the Custodians asked whether there was an obligation for them to comply with the Order, the defendants could have informed them that any co-operation was on a voluntary basis.
The defendants argued that Roth J’s order was disproportionate because it violated the defendants’ rights to privacy and the protection of their personal data. The Court of Appeal disagreed, holding that without the power to make an order of this type, the Court would not be able to deal effectively with covert arrangements, which — by their very nature — are often not in a work setting and or on a work device. The Court found that Roth J’s order had been drafted to provide as much protection as possible for third parties’ non-work-related data. Further, as the disclosure under the order would be voluntary and for the purpose of enabling the defendants to comply with their legal obligations in the proceedings, there was no breach of GDPR.
Therefore, the Court of Appeal dismissed the defendants’ appeal and allowed the order of Roth J to stand.
Claimants should be alert to the increased receptiveness of the English Court to granting targeted disclosure in this way, including orders directed at requiring voluntary disclosure from third parties, bypassing potentially complex issues of whether devices or documents are in a defendant’s control.
Parties defending claims would be well-advised to consider these sources of evidence at an early stage in proceedings, as they may contain important contemporaneous evidence that could emerge at a later stage, either to determine factual disputes, or to refresh the memory of potential witnesses.