UK: When Private Becomes Public - Obtaining Documents From An Opponent's Personal Devices

In today's world the lines between personal and work are increasingly blurred. Employees often use personal phones or laptops to send or receive work-related messages. They may even use their personal email accounts. Although there may be entirely innocent reasons for this it can be used for nefarious purposes - for example where companies engage in unlawful behaviour and the individuals involved are deliberately avoiding work accounts or devices. When a company involved in such behaviour is subsequently involved in litigation how does the opponent get access to those devices and messages?

The Court of Appeal considered this issue recently in Phones 4U Ltd v EE Ltd & Ors [2021] EWCA Civ 116 and approved an unusual but pragmatic order as way of potentially avoiding the more usual but costly and time-consuming routes to getting these messages.

Phones4U went into administration in 2014. Subsequently it brought a competition claim, through its administrators, against a number of mobile phone companies alleging anti-competitive behaviour. It claimed that the relevant companies colluded to terminate their contracts with Phones4U, causing it to go into administration. It further believed that some of the defendants' employees and ex-employees had used their personal devices for the purposes of the collusion and it wanted disclosure of the relevant messages.

There was no question that the defendants were obliged to disclose the messages under the court rules because they were in the defendants' control. Whilst the Defendants did not have physical possession of the messages they had the right to possession of them through the employer/employee relationship of agency. As a result Phones4U wanted the defendants to write to employees and ex-employees to request access to their mobile phones and personal email accounts so searches could be made for relevant messages. Some of the defendants refused, as a result of which Phones4U applied to the court for an order forcing them to do so. The defendants resisted on the following grounds:

• They argued that the court had no jurisdiction to make an order for searches of personal devices because they were the personal property of the employees. Instead they urged Phones4U to apply for third party disclosure against the employees individually.
• They also argued that such an order would breach the employees' right to privacy under the European Convention of Human Rights.
• Finally they said that it was unclear precisely what the employees were being asked to do and that if they were to write to them they must able to explain that they were fully entitled to refuse to supply their personal devices for searching.

At first instance the judge granted the order that Phones4U wanted. He ordered the defendants to ask the employees and ex-employees to give the devices to the defendants' IT consultants, so they could carry out the relevant searches. He imposed some requirements on the IT consultants as to what they could do with the devices but made clear that the defendants should not tell the employees that they were entitled to refuse to comply.

The defendants appealed to the Court of Appeal arguing that, because an employer has no right to an employee's personal documents, these were not documents under the defendants' control. As a result the court had no jurisdiction to compel the defendants to obtain or even request the personal devices, which would contain personal documents as well as work-related ones. They put forward a number of alternative orders that the court could have made which would have avoided dealing with the employees' personal documents such as ordering:

• Specific disclosure of classes of relevant communications within the defendant's control, but held on the employees' personal devices
• That the defendants request the employees to produce documents relating to their affairs and use their best endeavours to secure compliance with that request
• Third party disclosure of the work-related messages against the employees directly

The Court of Appeal rejected these arguments. Whilst it agreed that the court had no right to order a defendant to disclose documents not within its control the order did not do this, instead simply ordering a request to be made of the employees. Disclosure is an "essentially pragmatic process with the purpose of putting relevant documents before the court to allow it to make just and fair decisions. The disclosure rules are expressed in broad terms to give the court "maximum latitude to achieve this objective". The alternative orders suggested by the defendants were all viable but their likely effect would have been further (costly) applications to the court. The judge had therefore sought to get through the process as efficiently as possible by ordering the defendants to request the devices.

The court gave short shrift to the argument that the employees' rights to privacy would be infringed, saying that such rights had to be balanced against the need for the due and efficient administration of justice and that the judge had implemented safeguards to achieve this balance.

The Court of Appeal did criticise the judge for the provision of his order saying that the defendants ought not tell the employees that they were not obliged to comply on the basis that if the employees had asked the defendants the question they would be obliged to give the answer that there was no compulsion. However it is not clear whether this means that the defendants could tell the employees that they were entitled to refuse to comply, or whether they should not say anything at all in the request other than what was contained in the order.

In the event that the employees do refuse to comply Phones4U will have to fall back on one of the more costly three alternatives suggested by the defendants which the Court of Appeal characterised as "satellite litigation". However there were some helpful comments made by the Court of Appeal in the judgment which might make such a process easier if it proves necessary:

• The parties assumed that the personal devices of the employees were not in the control of the defendants which means that the court has no jurisdiction to order that they be handed over. The Court of Appeal did not wholeheartedly agree with this assumption. It said that question seemed to be a complex one, involving a consideration of the true nature of the relationship between the third party and the litigant, the extent of the use of the personal device for work-related matters, and whether the term "document" under the court rules included the device itself or the chip within it. The position is further complicated by the fact that many documents are now stored on the cloud rather than on a particular device. The contract of employment may also be relevant to this issue. In Pipia v BGEO Group Ltd [2021] EWHC 86 (Comm) the court held that a clause which permitted the employer access to the employee's computers regardless of the personal nature of the material held on it, meant that the ex-employee's personal mobile phone was in the employer's control.
• There was a question over whether the employees could refuse to hand over work-related documents on the basis that they were too mixed up with personal documents. The Court of Appeal seemed to indicate that the answer to this was no, citing with apparent approval Colman J's comments in Yasuda Ltd v. Orion Underwriting Ltd [1995] QB 174, where he stated that it was "not open to the defendants to rely on the inseparability of irrelevant material as a basis for declining to permit inspection, extraction and copying of relevant material".

The judgment is an indication of the willingness of the court to find creative and pragmatic solutions to aid disclosure of documents that have relevance to a matter, particularly in circumstances where allegations of collusion and conspiracy have been made. It should be seen as encouragement for parties to think "outside of the box" when coming up with potential answers to tricky disclosure problems. It also shines a spotlight on the relationship of employers and employees and the potential for there to be a steady but inevitable blurring of boundaries between different facets of our lives.