Phones 4U LtD v EE Ltd & Ors [2020] EWHC 1921 (Ch) (17 July 2020)

Phones 4U LtD v EE Ltd & Ors [2020] EWHC 1921 (Ch) (17 July 2020)

The court ordered targeted disclosure measures to address information asymmetry in a complex competition claim, balancing the need for effective disclosure against proportionality and privacy. Lists of 'hold' notice recipients and 'hit' reports must be disclosed by certain Defendants; additional custodians were generally refused except for one justified case; early disclosure was refused; unfiltered searches were ordered only for certain inter-party communications; and Defendants must request access to personal devices of up to four key custodians, with searches to be conducted by independent IT consultants under strict privacy safeguards.

Citation
[2020] EWHC 1921 (Ch)
Parties
Claimant: Phones 4U Limited (In Administration); First Defendant: EE Limited; Second Defendant: Deutsche Telekom AG; Third Defendant: Orange SA; Fourth Defendant: Vodafone Limited; Fifth Defendant: Vodafone Group Public Limited Company; Sixth Defendant: Telefonica UK Limited; Seventh Defendant: Telefónica, S. A.; Eighth Defendant: Telefonica O2 Holdings Limited
Jurisdiction
England and Wales
Judgment Date
17 July 2020
Procedural Posture
Competition Claim (stand Alone) / Second Case Management Conference (cmc) – Interlocutory Judgment on Disclosure Issues
Outcome
Application granted in part and refused in part.
Legal Topics
Disclosure, Standard Disclosure, Proportionality, Custodians, Electronic Documents, Personal Devices, Anti Competitive Agreements, Cartel Damages, Breach of Contract, Tort (conspiracy)
Competition Law Civil Procedure Disclosure Standard Disclosure Proportionality Custodians Electronic Documents Personal Devices +4 more

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Parties

Phones 4U Limited (In Administration)

Claimant

EE Limited

First Defendant

Deutsche Telekom AG

Second Defendant

Orange SA

Third Defendant

Vodafone Limited

Fourth Defendant

Vodafone Group Public Limited Company

Fifth Defendant

Telefonica UK Limited

Sixth Defendant

Telefónica, S. A.

Seventh Defendant

Telefonica O2 Holdings Limited

Eighth Defendant

Procedural Posture

Competition Claim (stand Alone) / Second Case Management Conference (cmc) – Interlocutory Judgment on Disclosure Issues

Legal Issues

  1. 1 Whether Defendants must disclose lists of 'hold' notice recipients and 'hit' reports
  2. 2 Appropriate scope and selection of custodians for disclosure
  3. 3 Whether early disclosure of certain documents is warranted

Ratio Decidendi

The court ordered targeted disclosure measures to address information asymmetry in a complex competition claim, balancing the need for effective disclosure against proportionality and privacy. Lists of 'hold' notice recipients and 'hit' reports must be disclosed by certain Defendants; additional custodians were generally refused except for one justified case; early disclosure was refused; unfiltered searches were ordered only for certain inter-party communications; and Defendants must request access to personal devices of up to four key custodians, with searches to be conducted by independent IT consultants under strict privacy safeguards.

Court Disposition

Application granted in part and refused in part.

Orders

  • DT, Vodafone and O2 to provide lists of 'hold' notice recipients by 31 July 2020.
  • DT to provide 'hit' report by 31 July 2020.