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 judgment is here.
Robert O’Donoghue QC and Hugo Leith (instructed by Covington and Burling LLP) appeared for the Second Defendant, Deutsche Telekom AG
David Scannell QC (instructed by Norton Rose Fulbright LLP) appeared for the Third Defendant, Orange SA. Marie Demetriou QC and David Heaton also act for Orange SA in the proceedings.
Mark Hoskins QC and Sarah Abram (instructed by Mishcon de Reya LLP) appeared for the Sixth – Eighth Defendants, the O2/Telefonica parties. Gerard Rothschild has also acted in the proceedings.