In Susquehanna International Group Ltd v Needham  IEHC 706, Baker J in the High Court considered the novel question of whether a court should order a person to make discovery of documents that they could obtain on foot of a data access request.
Ultimately, the High Court held, that it could compel a party making discovery to make a data access request in order to obtain documents which were within its power, where that request was not oppressive or disproportionate.
The plaintiff was seeking an injunction and damages, for breach of contract relating to the alleged solicitation of employees of the plaintiff and for breach of confidential information. The defendant was a former employee of the plaintiff who had been recruited to join C Ltd through E Ltd, a company acting on C's behalf.
The issue before the Court was whether the defendant could be compelled to make discovery of documents which could be available to him on foot of a data subject access request. The discovery sought included documents held by C and E that the defendant could obtain on foot of data access requests.
The plaintiff argued that this class of documents was within the "power of the defendant" in that the defendant had a legal entitlement to procure or obtain those documents.
The defendant 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.
The Court held that there was no principled reason why information which could be obtained by a data access request could not be the subject matter of a request for discovery.
While it was open to the plaintiff to seek non-party discovery against C and/or E, that fact alone did not prevent the Court directing discovery. It indicated that it would prefer to make an order for discovery against a party to proceedings rather than engaging in the more cumbersome and costly process of non-party discovery. However, if the request was oppressive or disproportionate then non-party discovery might be more appropriate.
The Court was also of the view that the request for discovery in the present case was not an attempt to use data protection law for a collateral purpose.
The Court was satisfied
- that that the defendant had the unique right to seek certain classes of documents by way of data access request;
- the request was not oppressive or disproportionate; and
- the material in question was not confidential or highly personal information.
Therefore, the defendant could be compelled to obtain documents, which were within his power, by making a data access request
The Court acknowledged that an issue might arise if the defendant was unable to procure some or all of the data due to a challenge or refusal E or C, and in those circumstances it gave the defendant liberty to apply to the court if he was unable to obtain the data.
This is an interesting case which, in appropriate cases, will allow by litigants to avoid the cumbersome and costly non-party discovery process. It is also indicative of the courts pragmatic approach to discovery and their attempts to reduce difficulties and costs in the process.