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- Developments

High Court compels Defendant to make a Data Access Request as part of an Order for Discovery

On 24th November 2017 Ms Justice Baker in the case of Susquehanna International Group Limited v Daniel Needham (2016 No.3300P) made a far reaching Order for Discovery against the Defendant on the basis that it was both necessary and relevant. The motion for discovery brought by the Plaintiff against the Defendant raised 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.

The motion also sought discovery for the period after the proceedings were issued and discovery of information on individuals who were not identified in the pleadings. Ms Justice Baker granted the Order for Discovery as sought with only minor changes to the wording of one category.

Daniel Needham (the “Defendant”) was employed as a trader with the Susquehanna International Group Limited (the “Plaintiff” or “SIG”) from 4th September 2006. He resigned from his employment with effect from 29th April 2016. The Plaintiff issued proceedings on 15th April 2016 and seeks injunctive relief and damages for breach of contract arising from what it claims are certain breaches of the contract of employment by the Defendant relating to confidential documents obtained in the course of his employment regarding the business, employees and business relationships of the Plaintiff.

The primary action of the Plaintiff is that the Defendant has breached terms of his contract of employment by assisting Citadel (a rival company in the same field) with the recruitment of other SIG employees and supplying Citadel with confidential information concerning the business of SIG, including the identity and details of other traders employed by SIG, the types of trades carried on by them, the profits earned by them and details of confidential trading strategies and models used by SIG or in the course of being developed.

The Plaintiff sought 3 categories of discovery and the Defendant sought mainly to limit such requests. The main argument related to category 1: “All documentation relating to the interactions howsoever described between the Defendant and Citadel LLC or its associated or affiliated entities and between the Defendant and Execuzen Limited (recruitment agency) or any individuals employed by or acting on behalf of Execuzen 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”

The primary dispute between the parties referable to this category was the request that the Defendant make discovery of documents which could be available to him on foot of a data subject access request. The documents in question were more than likely to be held in the London offices of Citadel and/or Execuzen. It was agreed by both parties that under the law of England and Wales a person has a right of access under the Data Protection Act 1998 and a direct right of access to the court to enforce that right.

Ms Justice Baker referred to the decision of Clarke J. (as he then was) in the Supreme Court decision of Thema International Fund plc v. HSBC International Trust Services (Ireland) Limited [2013] IESC 5, [2013] 1 I.R.274 and stated that the question to be decided was whether such documents are within the “power” of the Defendant and whether he has the “presently enforceable legal right” to obtain copies of the document.

Ms Justice Baker accepted that counsel for the Defendant was correct regarding the purpose of the Data Protection Directive, and that the Plaintiff could seek in the alternative to make an application for non-party discovery against Citadel and/or Execuzen. However, she held that the Defendant could be compelled to obtain documents which are within his power by making a data request. Ms Justice Baker did acknowledge that such order cannot be oppressive and therefore compelled the Defendant to take reasonable steps to obtain the documents through use of a data request and to exhibit such correspondence with his Affidavit of Discovery and set out the progress of such request in the said Affidavit.

Category 2 sought discovery of documentation, whether confidential or otherwise, connected to the business of the Plaintiff that the Defendant sent to his personal email address or that of other persons. The only issue between the parties is the time limit. The Defendant was prepared to give discovery up to the date his left the Plaintiff’s employment i.e. up to the 29th April 2016. However, Ms Justice Baker decided that discovery should be made up to the date of the Plaintiff’s Motion for Discovery.

Category 3 sought“ All documentation generated in the period between 1st August 2015 and 29th January 2017 relating to any interactions howsoever described between the Defendant and any other employee of the Plaintiff howsoever connected to the Defendant or those other employees leaving the employment of the Plaintiff to commence employment with Citadel LLC.”

Ms Justice Baker held that this category is not a “fishing expedition” as the identity of the persons who might have by reason of an alleged wrongful act of the Defendant chosen to take up employment with Citadel is relevant to the proceedings and distinguished this case from reasoning in a Court of Appeal decision to the contrary. It will be interesting to see if this decision is appealed and whether more applications for discovery will seek an order compelling the other party to make a data access request.

For any queries, please contact Anne O’Connell Solicitors at info@aocsolicitor.ie or +353 1 2903580

1st December 2017
Anne O’Connell
1-3 Burton Hall Road
Dublin 18

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