Court of Appeal delivers important judgment on disclosure from custodians’ personal emails and devices

03/02/21

On 2 February 2021, the Court of Appeal ruled that the High Court has jurisdiction to order parties to an action to request their respective disclosure custodians to give access to their personal email accounts and personal devices so that they can be searched for documents relating to the issues in the litigation.  In so ruling, the Court of Appeal made some important findings on how the right to privacy is to be respected in such circumstances, as well as further remarks on the legal and practical issues that mandatory orders seeking to access personal email accounts and personal devices could encounter.

The case concerns a series of competition law and economic tort claims.  Phones 4U Limited (“P4U”) carried on a business of selling mobile phones and ‘connections’ to various mobile network operators (“MNOs”), including EE, Vodafone and O2.  In 2014 P4U entered into administration.  Through its administrators, P4U claims that this occurred as a result of the network operators colluding to withdraw the supply of their connections to P4U.  P4U sued EE, its then-parent companies Deutsche Telekom and Orange, Vodafone and O2.  It alleges a breach of the competition law rules and contractual and tortious claims against EE, Deutsche Telekom and Orange.  The Defendants deny P4U’s allegations.

At a CMC in July 2020, P4U sought orders for the Defendants to seek to obtain access to personal email accounts and personal devices used by their disclosure custodians, and for the Defendants to search these materials and disclose any documents of relevance.  The basis for the application was that there was some initial evidence that certain custodians may have used personal emails/devices from time to time for work-related matters.  EE had voluntarily agreed to do so but the other defendants did not agree.  Mr Justice Roth ordered the other Defendants to write to a limited number of their custodians to request that the custodians provide access to their personal emails and devices.  If the custodians agreed, the materials would then be provided to the Defendants’ respective e-disclosure providers, who would filter the materials and provide a set of work-related documents to the Defendants’ solicitors (and return irrelevant material to the custodians), who would then undertake a final disclosure review.  However, Mr Justice Roth stated that the Defendants should not inform the custodians that their compliance with the request was voluntary.

The Defendants appealed, alleging that the order, and in particular the prohibition on informing the custodians that compliance would be voluntary, was made in excess of the Court’s jurisdiction, and critiquing the order on Article 8 privacy grounds. The main findings of interest from the Court of Appeal judgment are as follows:

• The High Court has jurisdiction under CPR 31.5(8) to order a party to make a request of its disclosure custodians to give access to their personal emails/devices. The MNOs argued that the court could not order a party to make a request for access to documents that the party did not “control” for CPR 31.8 purposes, and that CPR 31.5(8) did not give any disclosure jurisdiction that did not otherwise exist.  The Court of Appeal held that CPR 31.5(8) could be used as a pragmatic first step to see if the custodians would be willing to give voluntary access, even if the repositories of documents in question were likely to be overwhelmingly personal in nature.
• Central to the Court of Appeal’s conclusions was that the request was purely voluntary, and the custodians were fully entitled to refuse it.  However, the Court of Appeal held that: (a) the judge should not have said in his judgment that the defendants ought not, in making the request, tell the custodians that they were entitled to refuse it, and (b) it would have been preferable for the judge to have mentioned in his order that the custodians and anyone else affected by the order was at liberty to apply to the court for further directions or orders.  Subject to these important points, the Court of Appeal did not consider that the mechanism of using third party IT consultants to conduct the “sift” – assuming the custodians consented to hand over the documents – was problematic under Article 8 ECHR. 
• The Court of Appeal made a number of interesting comments on what could happen in the event that the custodians did not give their consent and further applications were made.  In particular (§22):
  • It is not clear whether the personal devices themselves are in the MNOs’ control: “That question seems to us to be a complex one, which does not need to be answered for the purposes of our decision in this case.”
  • The judge did not “investigate the details” of the MNO-custodian relationships but assumed that the custodians were employees or agents of the defendants for whom they worked.
  • There may be a wide variety of situations ranging from a device owned by the custodian but used mainly for work purposes on the one hand, to a device used almost exclusively for personal matters, save for an isolated work email perhaps sent in error from the wrong device.  So, the intensity of work versus personal use could be relevant.
  • It is unclear whether the term “document” for purposes of English disclosure rules is intended to include the device itself or the chip within it – the Court of Appeal said that it may do in some circumstances, but in the absence of full argument, they preferred “to express no opinion on the point.”   They also noted that “many documents are, in the modern world, not actually stored on the device at all, but in cloud storage.”

The judgment is here.