High Court: Defendant must obtain and supply documents from data protection request

About this case:

• Judgment:
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In a judgment raising the “novel question of whether a court should order a person to make discovery of documents that he or she can obtain on foot of a data subject protection request”, Ms Justice Baker was satisfied that the request was not oppressive or disproportionate.

Background

Daniel Needham is a financial trader and was employed by Susquehanna International Group Limited (SIG) from 2006–2016.

It was common case that Mr Needham discussed taking up employment with Citadel LLC – a company broadly the same field as SIG –and he was recruited through a company, Execuzen, acting on their behalf.

SIG sought injunctive relief and damages for alleged breach of contract by Mr Needham. SIG alleged that Mr Needham breached the terms of his contract of employment, inter alia, by assisting Citadel with the recruitment of other SIG employees and supplying Citadel with confidential information concerning the business of SIG.

Discovery

Mr Needham did not refuse to make discovery, but sought to limit the categories.

The first category requested was “All documentation relating to any interactions howsoever described between the defendant and Citadel LLC or its associated or affiliated entities and between the defendant and Execuzen Limited or any individuals employed by or acting on behalf of Execuzen Limited generated during the period between 1st August, 2015 and 29th January, 2017 to include, but strictly without prejudice to the generality of the foregoing, all such documents held by Citadel and Execuzen that the defendant can obtain on foot of data protection requests.”

A majority of the judgment dealt with this category of discovery.

Relevance

Justice Baker accepted Mr Needham’s argument that the request for discovery of documents relating to “Citadel or its associates or affiliated entities” appeared to be “fishing”. The request could be refined so that discovery is ordered in regard to communication with Citadel LLC or its parent or any Citadel subsidiary or associated company which intended to or did in fact establish a business in Ireland.

In relation to the request for documentation relating to Mr Needham’s engagement with Execuzen, Justice Baker was satisfied that the claim permitted “an order for discovery relating to documents which might have been generated in the course of the recruitment process… for Citadel, by itself or through an agent”.

Justice Baker agreed with Mr Needham that the request for documentation “relating to any interactions howsoever” was impermissibly broad and equivalent to “blanket discovery”, as per Ryanair plc v. Aer Rianta c.p.t. IESC 62, 4 I.R. 264, or was “too wide ranging”, as per Framus Limited & Ors. v. CRH plc & Ors. IESC 25, 2 I.R. 20

Justice Baker identified the relevant documentation as relating to or evidencing contact and engagement that Mr Needham had relating to the employment of himself and of the other SIG employees to whom Citadel made an offer of employment.

Necessity

The court heard that Mr Needham already voluntarily offered his own electronic devices and those of his family members for inspection and review. As such, Mr Needham argued that disclosure of other documentation was unnecessary and oppressive.

Justice Baker stated that she could not safely make the assumption that SIG already had enough documents and sufficient material. Furthermore, the level of cooperation could not influence her decision “whether to grant discovery of the documents now sought, as the discovery process is not to be viewed as a process of attrition by which the party is rewarded for doing what he or she would be compelled to do in any event”.

Rejecting Mr Needham’s arguments regarding necessity, Justice Baker stated that it was also irrelevant that the documentation was discovered in separate proceedings against Execuzen.

Documents available through data protection rights

The primary dispute between the parties was the request that Mr Needham make discovery of documents which could be available to him on foot of a data subject access request.

SIG argued that this class of documents was within the “power” of Mr Needham, as explained in Thema International Fund v HSBC International Trust Services (Ireland) IESC 5 (which endorsed the test identified in Lonrho v. Shell Petroleum 1 WLR 627).

The first of Mr Needham’s arguments relied on Durant v. Financial Services Authority E.W.C.A. Civ. 1746, and argued that it would be “wrong as a matter of principle for a person to be compelled to use data protection processes to achieve a purpose which more properly should be achieved by an order for discovery or non-party discovery”.

Furthermore, the power to order discovery was a judicial power and not one that any other body or person may usurp, as per Murphy v. Corporation of Dublin I.R. 215.

Mr Needham argued that SIG was attempting to bypass the judicial process by seeking an order the direct effect of which required Mr Needham to avail of his data protection rights, whereas the correct approach was for SIG to seek non-party discovery against the relevant persons.

Finding that the request was not oppressive or disproportionate, Justice Baker was satisfied that Mr Needham had a “unique right to seek certain classes of documents”; the information was not of a personal or confidential nature of the type in Glaxo Group & Anor. v. Rowex IEHC 253 or of that in Hartside Ltd. v. Heineken Ireland Ltd IEHC 3; the request for discovery was not an attempt to use data protection law for a collateral purpose; and Durant v. Financial Services Authority was distinguished on the facts of the case.

Directing that Mr Needham make discovery of all documents “reasonably available to him by means of a data subject access request and that will require him to take reasonable steps to procure the documents by such means”, Justice Baker noted that this might have the consequence of Mr Needham’s requests being challenged.

Stating that she would hear counsel on the exact form of the order, Justice Baker proposed that “discovery be made within ten weeks, with the proviso that the time for discovery for the class of documents that may require to make a data subject access request be extended if necessary, whether by agreement or further order”.