Disclosure of Documents Held Overseas

[Thanks to Ed McFarlane of Deminos HR for preparing this case summary]

Does an Employment Judge in Scotland have the power to order a party outside Great Britain to disclose documents?

No, says a division of the EAT in Scotland (the Honourable Lady Smith, sitting alone) in Weatherford UK Ltd v Forbes . The employment tribunal's powers are limited to making orders that apply within Great Britain.

The Claimant obtained orders against the Respondent, a UK subsidiary of Texas-based company, for recovery of documents held overseas by its parent company, the notes of an interview of the Claimant by American attorneys acting for the parent company relating to possible litigation, and an order for additional information. The EAT upheld the Respondent's appeal against the orders.

The EAT held that whilst the power of Employment Judge in Scotland to order recovery of documents under the employment tribunal Rules of Procedure corresponds to those of a sheriff, unlike a Sheriff Court, the scope of that power extends outwith Scotland, to Great Britain, but not overseas, where, like the Sheriff Court, the letter of request procedure would apply, which entails requesting the relevant court in the foreign jurisdiction to order disclosure. The EAT observed that it would be difficult to see how the Respondent could be ordered to disclose documents held by its parent company outside the UK.

The EAT considered the extent to which any legal privilege applied to the documents in question, and, having heard that under US law, privilege would apply to those documents, held that the documents were protected from disclosure by privilege. The EAT also held that the documents were privileged under Scots law as post litem motam "prepared with litigation in mind" and it did not matter that the litigation in mind was not the tribunal proceedings, but other civil and criminal proceedings.