The location of the data is not sufficient to avoid a disclosure order.
When it comes to personal devices, people increasingly communicate across multiple platforms, often in an informal and unguarded manner. However, high levels of litigation driven by the COVID-19 pandemic (including insolvency and restructuring litigation), the recent M&A boom (including shareholder disputes and other transactional litigation), and the rise of remote/hybrid work mean that PE firms must remain alert to the risk of personal device communications being disclosed in litigation.
As seen in recent cases, the English courts place value in contemporaneous written evidence, and take a pragmatic and targeted approach to disclosure. While English courts are mindful of the privacy rights of individuals, they recognise that employees conduct work on personal devices and non-proprietary third-party apps.
However, the location of the data is not sufficient to avoid a disclosure order, and PE firms should consider how to best protect themselves.
Check Your Policies and Staff Contracts
Recent court cases have focused on company policies regarding access to work-related communication on personal devices, including when and how it is permitted, and when access may be required. The English courts have required a company to enforce its right to access the personal mobile phones of a former employee, because he had a contractual obligation to allow the company access to work communications (including emails, text messages, and app based messages) on his personal devices.
Control of data and devices is also a key issue. The English courts also recently ordered defendants in a competition claim to write to specified current and former employees to request that those individuals voluntarily allow data-recovery experts engaged by the defendant access to their personal mobile phones and emails, to facilitate searches for work-related communications.
Remember Privilege, but Tread Carefully
Legal professional privilege allows clients to withhold disclosure of information related to legal issues. Privilege (which extends to legal advice and to documents prepared for litigation) does not generally depend on the mode of communication, but the protection has limits. For example, legal advice privilege only covers communications that are confidential; from a “lawyer”; to a “client”; and for the purpose of giving or seeking “legal advice”, all of which can be complex issues. For example, a communication chain involving lawyers, clients, and non-clients for purposes other than seeking legal advice is unlikely to be privileged, and may therefore be disclosable. Seek advice before engaging in sensitive communications.
Think Before You Commit Anything to Writing
PE firms should communicate their protocols and expectations clearly to staff. All staff should keep in mind that what is written is potentially disclosable, even on third-party platforms. Informal communications can create a misleading narrative. However, such communications often provide an excellent snapshot of events that transpired, should a dispute arise, and so they can also be useful to capture a contemporaneous record of events.
Beyond the English Courts
Sponsors should be alert to the increased willingness of the English courts to grant targeted disclosure, including orders directed at requiring voluntary disclosure from third parties, bypassing potentially complex issues of whether documents are in a defendant’s control.
In addition, PE firms may not always be able to predict or control where a dispute will arise. As such, the disclosure rules of other jurisdictions may come into play, adding further complexity — and requiring expert legal counsel.
What Is Disclosure and Why Does It Matter?
- Disclosure is the process by which litigants are required to search for relevant documents and provide them to each other.
- All parties to English civil proceedings must give disclosure, even of harmful documents, subject to some very narrow exceptions.
- The English court places value in contemporaneous written evidence, often more so than witness evidence.
- The process is intended to ensure that the parties share documentary evidence at an early stage.