Background

In Susquehanna International Group Limited v Daniel Needham [2017] IEHC 706, the High Court considered the novel question of whether an individual should be required to make discovery of documents which he or she can obtain through making a data subject access request.

The Plaintiff company sued a former employee alleging that he had poached staff and provided confidential information in respect of trading strategies, profitability and commercial know-how to a rival business. As part of its discovery request, the Plaintiff sought documents which the Defendant could obtain from his new employer as well as a recruitment agency on foot of a data subject access request. It was common case that the documents were not in the possession of the Defendant and could only be obtained by him through making a data access request.

The Defendant objected to the Plaintiff's request and contended that it was wrong in principle for an individual to be compelled to invoke rights under data protection legislation in aid of making discovery. In the Defendant's view, the correct approach instead was for the Plaintiff to pursue these documents directly by way of non-party discovery.

Decision

The High Court considered the extent of the obligation on the Defendant to make discovery of documents within his "possession, power or procurement" and found that materials potentially available to him through the making of a data access request were within his "power" for the purpose of discovery rules. In the Court's view, it was immaterial that the Defendant did not then possess the materials since he enjoyed a legally enforceable right to obtain the documents under data protection legislation.

Having considered both the nature and the purpose of data protection laws, the Court found that there was no principled reason why information capable of being obtained through a data access request could not also be the subject matter of an order for discovery. As the discovery in this case was unduly onerous or oppressive, the Defendant could therefore be compelled to obtain documents which were within his power through the making of a data access request.

Comment

Until now, it had been understood that an individual's obligations in sourcing discovery documents not already in its possession was generally limited to retrieving materials from any party with whom it enjoyed an agency relationship, for example, accountants and solicitors. The High Court's decision in Susquehanna will place an additional burden on parties preparing to make discovery since they will now have to consider whether potentially relevant documents may be held by other third parties to whom it would be entitled to make a data subject access request. As such, the Susquehanna decision has the potential to add to both the costs and length of time required to complete the discovery process in those cases which will necessitate making a data subject access request.

It remains to be seen if in every case a party making discovery will now be obliged to seek out and produce relevant documents on foot of making a data access request or whether the ruling will only apply in those cases where, as in Susquehanna itself, the party seeking discovery specifically requests that its opponents make a data access request.

The High Court also left open the question as to how far in each case a deponent will be expected to go in attempting to obtain relevant documents on foot of a data access request. While Baker J directed the Defendant to take "reasonable steps" and to engage in a "reasonable process" she did recognise that it might not be possible to obtain some documents without pursuing either an appeal to the Data Protection Commissioner or an application to court. It seems likely that any additional requirement to challenge a refusal to provide documents by data access request would further add to both the time taken and the costs incurred in fully completing the discovery process.

The decision is under appeal and awaits hearing before the Court of Appeal.