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

In an interlocutory disclosure application, additional forensic imaging of former employees’ personal devices should be ordered only where there is a real, evidence-based reason to think that material of sufficient litigation significance may be recovered. A merely speculative possibility is insufficient, particularly where the proposed search would intrude into personal affairs.

Where existing evidence establishes that relevant work-related messages can be extracted through a less intrusive process, the court may order disclosure of the resulting material by reference to a defined relevance test and a specified timetable. The court may also take account of contractual rights concerning access to personal devices, although relief may remain justified on the evidence even where the precise contractual position is uncertain.

The claimants applied for further disclosure concerning alleged work-related WhatsApp communications sent or received by former Deutsche Bank employees. The application concerned both devices issued by Deutsche Bank and the employees’ personal mobile devices.

For existing WhatsApp messages on personal devices, the parties had adopted an Export Chat process involving the employees and Deutsche Bank’s forensic consultant. The claimants also sought fuller forensic imaging of personal devices to search for deleted messages or traces of communications no longer stored in WhatsApp format. The central issues were whether further disclosure should be ordered and whether additional forensic imaging was reasonably necessary.

1. DB-issued devices. The application was refused in relation to devices issued by Deutsche Bank. Clear, precise and comprehensive technical evidence established that WhatsApp could not have been downloaded or used on the relevant devices during the material periods. A possible interpretation of an isolated passage in an SEC ruling was insignificant against that evidence. No order was made requiring Deutsche Bank to inspect or unlock the devices.
2. Contractual entitlement. The recently disclosed handbook provisions established, subject to the position of Mr Frontini, a contractual right requiring the former employees to permit full forensic imaging of relevant personal devices where reasonably necessary for Deutsche Bank’s litigation response or investigation of unauthorised work-related WhatsApp use. That conclusion provided a possible basis for ordering delivery up of devices.
3. Reasonable necessity. Full forensic imaging was not reasonably necessary. For three employees, the evidence established either that no access to the relevant historical activity remained or that all WhatsApp activity was retained and would be extracted. The correspondence concerning the other two employees likewise indicated that their messages remained available and that the dispute concerned the extraction method. The possibility of recovering further traces was speculative and did not justify the additional intrusion into personal affairs.
4. Limited disclosure order. Deutsche Bank was ordered by 4 pm on 12 April to disclose, by further list with simultaneous production or notification of privilege claims, relevant WhatsApp messages and attachments obtained through the defined FTI Export Chat Process from the personal devices of the specified former employees, excluding Mr Hernandes’ device because the evidence showed that there was nothing further to disclose.
5. Costs. The claimants had reasonably issued and pursued an important application, but their aggressive and excessive conduct had aggravated costs. Deutsche Bank was ordered to bear its own costs and pay 50% of the claimants’ costs, assessed on the standard basis if not agreed, at the end of the case.