Competition authority adopts new approach to gathering electronic evidence during dawn raids

Facts

The Office for Competition and Consumer Protection carried out dawn raids at premises of companies operating in the fitness sector. The inspection was conducted following the authority's suspicion that the main players in this market had entered into an anti-competitive agreement.

In the course of one dawn raid, officials copied the hard drives of laptops and the content of email mailboxes belonging to two managers. The copies were placed in sealed envelopes and taken to the Office for Competition and Consumer Protection's headquarters for further review.

During the inspection, one of the companies notified the officials that they had copied documents that were beyond the scope of the dawn raid (as defined in the search warrant) and documents protected by attorney-client privilege. Shortly after the dawn raid, the company lodged a complaint with the Warsaw Court of Competition and Consumer Protection.

Decision

In its judgment, the court emphasised that the powers which the Office for Competition and Consumer Protection can exercise during dawn raids should not be interpreted broadly and that it is strictly bound by the scope of the inspection outlined in the search warrant.(1) Thus, the authority was not empowered to copy or print documents that went beyond the scope of the warrant in question.

According to the court, Office for Competition and Consumer Protection inspectors cannot review copied electronic evidence for the first time at their headquarters without the presence of the inspected company's representatives. Instead, they must perform a proper search at the inspected company's premises. Apart from the fact that Office for Competition and Consumer Protection inspectors had collected evidence that was outside the inspection's scope, such an approach violated legal professional privilege, which protects communications between a client and its attorney from being disclosed.

The court concluded that the practice of copying the contents of hard drives, laptops, personal computers or emails for further review at the Office for Competition and Consumer Protection's premises (without the inspected company's representative being present) is unacceptable under the applicable law.

After the judgment was issued, the Office for Competition and Consumer Protection explained on its website that no law had been violated in this case, as all electronic evidence had been kept in sealed envelopes and not been reviewed by inspectors. Further, the statement declared that the Office for Competition and Consumer Protection has modified its approach in line with the court's guidelines and now reviews electronic evidence at the premises of inspected companies.

Comment

The decision led to a significant change in the Office for Competition and Consumer Protection's policy regarding collecting electronic evidence during dawn raids. Documents stored on hard drives and emails of managers and employees are now reviewed by officials on the inspected company's premises. This allows the inspected company's representatives to check that documents which are clearly beyond the scope of the dawn raid are not printed or copied and taken away for further review. Further, the Office for Competition and Consumer Protection's new approach enables companies to present arguments regarding legal professional privilege and prevent the disclosure of client-attorney communication.

Unfortunately for inspected companies, the new approach to gathering electronic evidence has made dawn raids last longer. Previously, it generally took the authority two to three days to collect all necessary evidence. With the new policy of reviewing emails and files stored on laptops and personal computers at the company's premises, dawn raids can last between seven to eight days.

This article first appeard on www.internationallawoffice.com