Today’s article examines a case involving legal professional privilege, work emails and company servers. It provides a great deal of relevance to many businesses, as the issue of legal privilege in the context of work emails on corporate servers is one which arises regularly up and down the country.
In this case, the applicant made an application for electronic documents, which it argued that the right to privilege (right to confidentiality) did not extend to by those whose mailboxes the emails had originated from. This case provides an important lesson as to how this type of scenario should be examined.
Keep reading to learn more about this case and the lessons which can be learned.
Background
The case originates with MP & Silva Holding SA (MPS), a now dissolved company which was an international sports marketing and media rights firm that was order into administration by the UK High Court in October 2018. This came after the company missed payments to organisations such as the Premier League and the Scottish Football League.
Prior to this it was sold to the Chinese companies Everbright Securities and Beijing Baofeng Technology, who bought a 65% majority stake in the company in May 2016. This purchase was made through a strategic partnership, Jinxin, for $661m. It was following this purchase that the claims in deceit and unlawful means conspiracy are said to have arisen.
In around September 2018, soon before the company was ordered into administration by the UK High Court, Jinxin obtained copies of the personal electric mailboxes of a number of individuals from MPS. This included some of the defendants, who had been senior officers at MPS.
Following the acquisition of the electronic mailboxes, Jinxin and its lawyers, Herbert Smith Freehills (HSF) reviewed the material subject to various internal safeguards. These safeguards consisted of Jinxin’s internal team passing on documents to the matter team after reviewing potentially privileged documents. Jinxin’s claimed that in order to reduce the risk of its legal team reviewing privileged documents, they performed keyword searches were thought most likely to highlight documents through which the Tort Defendants (MPS) might claim privilege. Jinxin claimed that the keywords used were so extensive that approximately half of the 1.5m documents were quarantined, meaning that they could not be reviewed. These processes were questioned by MPS once they were discovered.
In the end the only application made by Jinxin was that none of the Tort Defendants could claim any privilege against Jinxin relating to documents held on MPS computer systems, in order to overcome the obstacle of being unable to review these documents. If the application succeeded, it would mean that Jinxin could proceed to review all the relevant documents it held without any further issues relating to quarantine. Jinxin argued that an essential pre-condition for privilege was not present in the documents stored on the computer systems of MPS.
Decision
The court refused to grant the declaration, as it did not have sufficient information to make it. The reason for this is that the judge held that there was inadequate evidence about the relevant documents in question.
The judge rejected the arguments made by Jinxin that the access to emails by IT staff, staff handbooks setting out the company’s right to monitor electronic communications, and the ownership of the servers, all pointed to a loss of confidentiality and a lack of privilege. However, the judge held that none of these factors prevented confidentiality from arising. Furthermore, the judge held that a reasonable person would assume that the location and exploitation of privileged material would not be included in a company’s right to access data on its servers.
The judge offered a solution from the case BBGP Managing General Partner Ltd & Others v Babcock & Brown Global Partners [2010] EWHC 2176; (Ch) that could be helpful in a situation like this. In the aforementioned case, the documents in question were reviewed by independent lawyers. This would go some way to overcoming the disclosure problem which arose in this case.
Our comments
The fact that some data/information were stored in company’s emails or other device does not automatically mean that the right of privacy or confidentiality is lost. Whether the right to privacy/confidentiality is lost depends on the particular facts of each individual case. Hence, in this case, the Court refused to grant the declaration sought by Jinxin, as it did not have sufficient information to make such a declaration. In situations like this, the safest approach to take is to work with other parties and to use an independent lawyer, rather than one on behalf of the employer itself.
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