This is an interesting piece looking at the implementation of the Disclosure Pilot scheme by Moya Clifford at Hill Dickinson. This case specifically focuses on a request for documents and messages from mobile devices belonging to two individuals who themselves were not currently employees of any parties to the action, but who the defendant claimed to be central to the case and were going to be called on as witnesses.

The article provides a good overview of the case and why the judge found as she did and it’s interesting to see how these sorts of issues are currently being considered in Courts.

In this case, disclosure was ordered from one individual, but not to the other. This was primarily because that individual previously had a service contract with the defendant that allowed for documents/records to be accessible and thus, they were in the control of the defendant. There was no such contract with the second individual and, as a result, these were not in the control of the defendant.

As Moya Clifford comments at the end of the article: “The case is a useful reminder of the issues around the ‘control’ of documents and indeed the definition of what a document actually is – in this case WhatsApp messages. Undoubtedly, given the nature of the allegations centred on allegations of bad faith, the immediacy of the WhatsApp communications would give a good feel for the intentions and motivations of those involved and would be important to the findings in the case.”