In the recent case of Susquehanna International Group Limited v Needham  IEHC 706, Mr Justice Baker considered whether a Court could order a person to make discovery of certain documents which that person had the power to obtain through making a data access request.
The case involved a defendant who was a trader in financial instruments, and who was one of a number of employees who left their employment with the plaintiff company in 2016. The defendant subsequently took up employment with Citadel, a firm in the same business as the plaintiff. Before the defendant took up employment with Citadel he had interacted with a recruitment company called Execuzon and it was claimed by the plaintiff that the defendant had breached the terms of his contract of employment by assisting Citadel with the recruitment of other employees of the plaintiff and of supplying Citadel with confidential information concerning the business of the plaintiff.
Discovery of three categories of documents was sought by the plaintiff during the proceedings. The defendant did not refuse to make discovery, but, rather sought to limit the categories to those which were readily available to him, falling short of making a data access request. The Court was asked to grant a request for discovery relating to a category of documents which might have been generated in the course of the recruitment process, or for the purposes of the employment by Citadel, by itself or through an agent, of the former employees of the plaintiff, including the defendant.
The primary dispute between the parties was that this category constituted a request requiring Mr. Needham to make discovery of documents which could be available to him on foot of a data subject access request. The plaintiff argued that the category of documents referred to was within the “power” of Mr. Needham to discover, as explained by the Supreme Court in Thema International Fund plc v. HSBC International Trust Services (Ireland) Limited. The Supreme Court held that a document was capable of being the subject matter of an order for discovery if the document, while not in the possession of a person, was one in regard to which he or she had the legal entitlement to procure or obtain. The Court held that the request in the present case was not oppressive or disproportionate. From the evidence and arguments before it, the Court was satisfied that the defendant had a unique right and requirement to seek certain classes of documents.
While it was open to the plaintiff to have brought a motion for non-party discovery against Citadel or Execuzen the importance of this ruling is that a person may now be compelled to make discovery of documents which are in the possession of an agent of that person, for example a solicitor or a trustee, where the documents are relevant and necessary and the request is proportionate and not unduly oppressive.