Can employees’ personal devices be searched for the purposes of disclosure in litigation?

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Disclosure in litigation is a complex task. In a recent case, the High Court had to consider whether, in giving disclosure, a company was required to disclose the content of former and current employees’ personal electronic devices.

BACKGROUND:

Phones 4U (“P4U”), the major phone retailer, entered administration in September 2014.

In 2020, P4U’s administrators began Court proceedings in relation to alleged communications between several mobile telephone operators (including EE, O2 and Vodaphone) that resulted in them cancelling and/or not renewing their contracts with P4U.

It was alleged that such communication breached competition legislation (including Article 101 of the TFEU and Chapter 1 of the Competition Act 1998) and was a principal reason why the operators ceased to trade with P4U, which in turn lead to P4U entering administration. As part of the proceedings, P4U argued that the personal devices and accounts of several current and former employees of the operators should be searched for communications relating to the proceedings.

OUTCOME:

In summary, the Court ordered that it would be appropriate and proportionate for each operator to approach four selected former/current employees and request that their personal devices be provided to independent IT consultants who, in turn, would undertake the specific searches for relevant documents and communications. The Court stated that the devices should not be handed over to the parties or the Court.

In coming to its conclusion, the Court accepted that where companies do engage in unlawful, collusive behaviour, the individuals involved sometimes use their personal devices and may deliberately avoid using their work email or devices. However, it reiterated that any order must be proportionate and interfere as little as possible with an individual’s right to privacy.

WHAT THIS MEANS FOR YOU:

On the face of it, the ruling could be seen to open the disclosure floodgates to include documents that are not the norm. But the ruling must be taken with a pinch of salt: this case related to a private, stand-alone action to establish specific facts in competition law litigation. For now, it is likely to remain limited to such cases.

However, in light of the growing number of people working from home during the COVID-19 pandemic and the changes to working practices moving forward, employees across all levels using their personal devices for professional means is going to become more common and, as a result, such disclosure requests will likely become more common across litigation.

As such, if you are aware of your employees, especially high-level ones, using their personal devices for professional means, you should make them aware of this decision and the possible consequences of using their personal devices for professional matters.

If you have any questions about such topics as disclosure, the litigation process or competition law, do not hesitate to get in contact with our specialist Commercial Dispute Resolution team who will be able to assist you with any queries you might have.

CASE TITLE: Phones 4U Ltd (In Administration) v EE Ltd and Others [2020] EWHC 1921 (Ch).

RELATED:DISPUTE RESOLUTION


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