I am catching up with things I have missed while I have been catching up with other things. One of those “other things” has been reviewing, and then archiving or binning, old working materials. I seem to have been too busy talking and writing about information governance to deal with my own.
Going through our old videos this week for archiving purposes, I came across an interview I did with Jonathan Armstrong of Cordery in 2018. We published it on 24 April 2018, almost exactly a month before the GDPR came into force, under the title “The implications of the GDPR for eDiscovery”.
It may seem rather odd that we have had to wait until now for the EU Court of Justice to give proper consideration to the conflict between discovery / disclosure and the GDPR. One imposes strict obligations to produce all data relating to matters in issue between parties, and the other imposes restraints on collecting, keeping and passing on personal data. Collisions are inevitable.
It was quite fun explaining this forthcoming conflict at US conferences in the years before the GDPR took effect, not least because it wasn’t entirely new – existing EU privacy and data protection laws already proscribed activities which US lawyers saw both as their duty and their birthright, and I quite enjoyed the wave of disbelief and disapproval from audiences when I talked about the restraints which were coming. It would be fair to say that few UK lawyers took much notice either.
The case in the EU Court of Justice is Norra Stockholm Bygg AB, and it is to Cordery that we turn for an explanation of the case and its implications.
The key question involved time-keeping records which included a lot of information about employees which had been collected primarily for tax auditing purposes. The contractor argued that the privacy interests of its employees outweighed the discovery requirement to produce the records.
The conclusion – that individual data protection rights must be taken into account when courts consider disclosure obligations – is unsurprising. The value of Cordery’s article lies in the summary of the factors which must be taken into account in weighing the competing factors.