Data Access Requests And Discovery - Recent Irish Judicial Development

In a recent decision, the Irish High Court held that a court may order a person to make discovery of personal information that he or she has a right to obtain from a third party on foot of a data access request made pursuant to data protection laws. This judgment is particularly significant for individual litigants, especially where those parties are commencing discovery1.

Background

The case concerned a claim by a plaintiff company as against the defendant, a former employee, for injunctive relief and damages for breach of contract. The plaintiff company claimed that the defendant, who had taken up employment with another firm operating in the same field, assisted with the recruitment of other employees of the plaintiff and supplied the competing firm with confidential information concerning the plaintiff's business, including know-how and trading strategies.

The plaintiff had sought discovery of documents relating to the defendant's interactions with the competing firm and a recruitment company through which he was recruited, including documents that he could obtain on foot of a data access request.

The plaintiff argued that, as the defendant had a right as a matter of European law to obtain such documents, in particular, documents relating to any interview process conducted by a prospective employer, those documents ought to be discovered by him.

Decision

The Court considered that it was long established that documents ought to be discovered if they are relevant and necessary, provided that the request is proportionate and not unduly oppressive. It also acknowledged that a document is capable of being the subject matter of an order for discovery if the document, while not in the possession of a person, is one that he or she has a legal entitlement to procure or obtain.

In this respect, it was noted that, although the documents sought were likely to be held in offices in England, it was agreed between the parties that a person has a right to seek and inspect such personal data under the Data Protection Directive (EU Directive 95/46EC) (the "Directive") and the English implementing legislation (Data Protection Act 1988).

While the defendant argued that it was wrong to compel a person to use data protection processes to achieve a purpose which would be more properly achieved by way of non-party discovery, the Court was not persuaded by that argument. Ultimately, the Court recognised that the defendant had a legally enforceable right to seek...

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