A recent judgment in interim relief proceedings on digital copies made during an NMa dawn raid may lead to an adjustment of the NMa’s Guidelines on digital investigations.7
The NMa performed dawn raids at insurance companies Fortis and Allianz, to investigate potential bid-rigging in regard of a European tender of fire insurances for local and regional authorities. During the dawn raids, the NMa made, over a specified time period, digital copies of the entire e-mailbox of one Fortis employee and three Allianz employees.
The parties argued that the digital copying of entire e-mailboxes was against the principle of proportionality, particularly now that the e-mails at hand were arranged in such manner to enable a more targeted investigative approach. The NMa, on the other hand, considered its actions proportional since it had limited itself to the e-mailboxes of a selective number of “key players” and in regard of a specified time period.
The court did not agree with the NMa’s reasoning. Even though the NMa limited its search in time and in person, this could still result in the copying of data beyond the purpose and subject matter of the investigation. The court found the digital logbook as laid down in the NMa’s Guidelines on digital investigations an insufficient safeguard against “fishing expeditions”, since it only provides insight into which files have been opened during the investigation without specifying how long and how thorough the files were examined.
As a remedy, the court ordered the NMa to invite an authorised representative of the parties to be present during its investigation of the digital copies to make sure that no copied data beyond the purpose and subject matter of the investigation will be examined.
We understand that the NMa has decided it will not appeal the ruling and will act in accordance with it. So far, the NMa’s Guidelines on digital investigations have not been adjusted.