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Disclosure is a vital step in the litigation process and a party who fails to disclose material to the other side risks being ordered to do so by the court.
Two recent rulings provided clarity on, first, when disclosure of data held on personal digital devices can be ordered; and second, when email attachments should be disclosed.
Email attachments
In Sports Direct International Plc v Financial Reporting Council [2020] EWCA Civ 177, the Court of Appeal considered whether email attachments, which were pre-existing documents, were privileged if they were attached to a privileged email. The FRC sought an order for disclosure after the claimant refused to disclose several documents (19 emails containing 21 attachments) on the basis they were privileged.
The FRC argued that the documents were not privileged given they were pre-existing. The appeal judges agreed that the attachments were not covered by privilege, even if the email itself was privileged. As Rose J made clear, “ordinary civil procedure process requires the disclosure of all free-standing documents as are relevant to the pleaded issues in dispute between the parties”.
The ruling clarifies that if the email is itself privileged, that does not confer privilege on a pre-existing document attached.
Personal devices
Nowadays it is common for members of staff to use their personal digital devices for work communications. This means our personal devices store data that may be valuable in the course of litigation.
In Phones 4U Ltd (In Administration) v EE Ltd & Ors [2021] EWCA Civ 116, a competition case which has wider application, the claimant sought an order for disclosure against various former senior officers of the corporate defendants who had/may have used their personal electronic devices to send and receive work-related messages and emails.
It was the claimant’s view that the communications related to anti-competitive arrangements (which was denied).
The High Court ruled that the judge did have jurisdiction to order the defendants to request the relevant individuals (third-party ‘custodians’) voluntarily to produce personal devices and emails stored on them - even though only work-related items were under the employers’ control.
The court also said there are no limitations in CPR Part 31.5 on who can be asked to participate in the search process. This does not mean the court cannot, as a matter of principle, require the parties to the proceedings to make requests of third parties by way of making a search for relevant documents.
The argument that the order was disproportionate as it violated the defendants’ privacy rights and protection of their own personal data was rejected. The data processing itself would be undertaken by IT consultants in accordance with the General Data Protection Act (GDPR) and their legal obligations as data controller.
The judges said that without power to make the order for disclosure of hidden documents concealing unlawful dealings, it could not deal effectively with alleged unlawful agreements (which are naturally likely to be covert). The court “cannot be powerless” to ensure such hidden documents are disclosed in order to allow a just resolution.
Which brings us back the fundamental purpose of litigation disclosure. Giving judgment, Sir Geoffrey Vos MR succinctly put it thus: “Disclosure is an essentially pragmatic process aimed at ensuring that, so far as possible, the relevant documents are placed before the court at trial to enable it to make just and fair decisions on the issues between the parties.
“CPR Part 31 is expressly written in broad terms so as to allow the court maximum latitude to achieve this objective. It is not a straitjacket intended to create an obstacle course for parties seeking reasonable disclosure of relevant documents within the control of the other party.”
The courts have therefore shown their willingness to order reasonable disclosure to ensure no parties can hide behind covert communications and underhand collusion, subject to measures protecting an individual’s privacy.
