Disclosure: High Court Directs Party To Identify Which Current And Ex-employees Have Been Asked For/given Consent To Search For Documents On Their Personal Devices

• Jurisdiction: United States,Federal
• Law Firm: Herbert Smith Freehills
• Subject Matter: Litigation, Mediation & Arbitration, Disclosure & Electronic Discovery & Privilege, Trials & Appeals & Compensation
• Author: Ms Shula Parry
• Published date: 13 January 2023

A recent High Court decision illustrates the extent of the court's powers where potentially relevant documents are contained on the personal devices or email accounts of current or ex-employees and the employment relationship is governed by foreign law: The Republic of Mozambique v Credit Suisse International and Others [2022] EWHC 3054 (Comm).

The court's jurisdiction to order disclosure under both Part 31 of the Civil Procedure Rules and under Practice Direction (PD) 57AD (previously the Disclosure Pilot under PD 51U) extends to documents within the "control" of the parties to the litigation. As the judge in this case noted, under English law, a court will readily find that a party has control over documents contained on personal email accounts or devices of a current or former employee or office holder who used those email accounts or devices routinely to receive and send electronic communications for the party in question.

If the relationship between the party and third party is governed by foreign law, expert evidence may establish that no such right, and therefore no control, exists as a matter of foreign law. However, in the absence of evidence to the contrary, the judge is generally entitled to assume that the relevant foreign law is the same as English law. As the judge in the present case noted, any other approach could mean that foreign law evidence regarding the existence of control became routine in international or cross border litigation, given the increase in the use of personal devices and email accounts to make business communications in recent years - with obvious cost implications.

The present decision shows that, where the question of control is still to be determined, the court can nonetheless order a party to identify which current or former employees it has asked for consent to search for and disclose documents on their personal email accounts or devices, and the extent to which consent has been given. This is an exercise in case management, to avoid troubling non-parties to litigation with duplicate requests and incurring unnecessary costs.

The decision also acts as a reminder that, where such consent has been requested and given, the documents will be in the party's "control" for the purposes of disclosure, even if under the relevant foreign law there would have been no such control in the absence of consent.

Background

The underlying dispute involved allegations of bribery and corruption relating to the financing of transactions...