Fiesta Hotels and Resorts SL & Ors v Deutsche Bank AG & Anor

Fiesta Hotels and Resorts SL & Ors v Deutsche Bank AG & Anor

There is no substantial basis for believing that WhatsApp communications of relevance exist on DB-issued devices, so no order will be made regarding those devices. As to personal devices, Deutsche Bank has a contractual right to require ex-employees (other than Mr Hernandes) to submit devices for forensic imaging, but the evidence does not justify such an intrusive order beyond the existing Export Chat process. Disclosure is ordered only of WhatsApp messages extracted via the FTI Export Chat Process. Costs are awarded 50% to the claimants due to the necessity of the application and the conduct of both parties.

Parties
Claimants: Fiesta Hotels and Resorts SL & Ors; Defendants: Deutsche Bank AG & Anor
Jurisdiction
England and Wales
Judgment Date
27 November 2024
Procedural Posture
Commercial Court Application / Interlocutory Application Ruling
Outcome
Application granted in part, refused in part.
Legal Topics
Disclosure of Electronic Communications, Forensic Imaging of Devices, Contractual Rights of Employer, Costs of Interlocutory Applications
Civil Procedure Commercial Law Disclosure of Electronic Communications Forensic Imaging of Devices Contractual Rights of Employer Costs of Interlocutory Applications

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Parties

Fiesta Hotels and Resorts SL & Ors

Claimants

Deutsche Bank AG & Anor

Defendants

Procedural Posture

Commercial Court Application / Interlocutory Application Ruling

Legal Issues

  1. 1 Whether Deutsche Bank should be ordered to search DB-issued devices for WhatsApp communications relevant to disclosure
  2. 2 Whether Deutsche Bank should be ordered to require ex-employees to submit personal devices for forensic imaging to extract WhatsApp communications
  3. 3 Whether the claimants are entitled to costs of the application

Ratio Decidendi

There is no substantial basis for believing that WhatsApp communications of relevance exist on DB-issued devices, so no order will be made regarding those devices. As to personal devices, Deutsche Bank has a contractual right to require ex-employees (other than Mr Hernandes) to submit devices for forensic imaging, but the evidence does not justify such an intrusive order beyond the existing Export Chat process. Disclosure is ordered only of WhatsApp messages extracted via the FTI Export Chat Process. Costs are awarded 50% to the claimants due to the necessity of the application and the conduct of both parties.

Court Disposition

Application granted in part, refused in part.

Orders

  • No order regarding DB-issued devices; Deutsche Bank not required to take further steps to unlock or search them.
  • Deutsche Bank to disclose by 4 pm on 12 April 2024, by further list, with simultaneous production of copies or notification of any claim to privilege, all relevant WhatsApp messages (as defined) extracted via the FTI Export Chat Process from ex-employees' personal devices (excluding Mr Hernandes).