Think about how to obtain information held on employees' personal devices
Published on 8th Apr 2021
When a party litigates before the English courts, it will need to disclose relevant documents within its possession. This includes documents it holds itself and also documents held by third parties which it has a right to possess. Documents created during the course of employment generally belong to the employer and so the party will need to disclose documents created by its employees (and the employees can be served with a court order requiring such disclosure, if necessary).
But matters can become more complicated where the employee works for a subsidiary of the party and has created work-related communications on his/her personal mobile phone, laptop or other device. And what is the position where an employee subsequently leaves the company?
Two recent cases have considered these issues.
In Pipia v Bgeo Group Ltd, a parent company was found to have control over certain documents held by its subsidiaries because those subsidiaries had given their express consent to providing all documents requested by the parent company.
Did that control extend to the contents of mobile phones belonging to two key witnesses? This situation was akin to seeking disclosure from a third party and so a more stringent test was applied by the court. However, the court found that the contract governing the relationship between the subsidiary and one of its employees entitled the subsidiary to control his phone and messages on it, and therefore a disclosure order could be sought from the court requiring this employee to hand over his phone.
In Phones 4U v EE, the defendant was ordered to write to some of its former employees, asking them to hand over their own personal electronic devices to the defendant's IT consultants so that a search could made for relevant emails or SMS messages, as part of the defendant's disclosure exercise.
As in Pipia, the defendant had "control" over work-related emails and messages on the former employee's phones which were relevant to the issues in dispute. It didn't matter that there would be other, non-work related, messages on the phones – the former employees had chosen to use their phones for business. Accordingly, the defendant could be ordered to ask the employees to voluntarily hand over their phones (but the employees could not be ordered to do so).
Furthermore, if the former employee had asked the defendant if he was obliged to comply with the request to hand over his phone, the defendant could have told him that he was not.