Legal Advice Privilege – Employment Law Cases Not Excluded*
The Data Protection Commission published its Annual Report for 2020. One of the issues related to the issue of legal privilege and the exemption in respect of same. The Report confirms the interpretation put by the commission in relation to the scope of legal privilege in the Data Protection Act 2018. Section 162 and 60 (3) (iv) of the Act restricts right to access under Article 15 GDPR where the communications are protected by legal professional privilege. The Commission states that these provisions essentially provide that the common law principals apply to privilege in the Act of 2018.
The position in common law is that legal advice privilege attaches to communications between a lawyer and a client where the communication is confidential and for the purposes of giving or receiving legal advice. Litigation privilege applies to communications between a client and a lawyer or between a client, their lawyer and a number of cases a third party where the main purpose of the communication is to prepare for actual apprehended litigation.
It is interesting that the Report provides that where legal professional privilege is relied upon to refuse an access request the Commission will require an explanation as to why the controller is asserting privilege and will seek a narrative of each document containing personal data.
In relation to discovery of documentation the UK Court of Appeal judgement in Phones4You -v- EE Limited may have significant implications where employees use personal devices for professional purposes. In this particular case under reference 2021 EWCA Civ116 the UK Court decided that it had jurisdiction to make an order where the personal devices of the employees fell within the control of the defendant for the purposes of disclosure.
The UK Court held that the Court did have jurisdiction to require a defendant to make the directed request to its employees and former employees. In this particular case it was accepted that the personal mobile phones and email accounts of employees and former employees contained some work-related documents that were in the control of the defendants as employers or principals.
The Court was of the view that disclosure was an essential pragmatic process aimed at ensuring that as far as possible relevant documents are placed before the Court at trial to enable it to make a just and fair decision on the issues between the parties.
In this case the Defendants argued that the Order violated their rights to privacy and protection of their personal data. The Court made the point in the particular case as it involved alleged unlawful collusion which is by its very nature likely to be covert and might involve individuals deliberately avoiding use of work devices and work email accounts to conceal such dealings. The Court pointed out that it would not be able to consider the allegations of covert arrangements effectively without requiring the parties to disclose the documents. The decision sets out that the UK Courts will require parties to take all reasonable and proportionate steps to carry out adequate searches for disclosable documents and that in certain circumstances may include private emails and private mobile phones.
There are implications in employment law as Covid-19 has resulted in a significant number of employees working remotely. This may well have increased the use of personal computers or mobile phones for professional purposes. Employees personal devices may now be considered a likely source of disclosable documents and certainly more so than before.
It is important for employers who are aware that their employees may be using their personal devices to advise them that personal devices may now become discoverable and that means that what is on those personal mobile phones may be information which may have to be disclosed as part of the discovery process. This may mean that an independent person may need to go through their mobile phones. On that basis it is advisable that employers particularly advise employees not to use their own mobile phones or computers.
The UK Court has taken the view that the Court has the maximum latitude to direct disclosure and that the disclosure rules are not there to create obstacles for parties.
While this is a UK decision and only as persuasive authority it is still an important decision which individuals might well find at some stage that they end up having their personal mobile phone or personal email subject to a search if they had been using it at all for business purposes, even in employment cases.
*Before acting or refraining from acting on anything in this guide, legal advice should be sought from a solicitor.
*In contentious cases a solicitor may not charge fees or expenses as a proportion or percentage of any award or settlement.