Competition Authority Publishes Guidelines on Digital Data Review During Dawn Raids

New Developments

The Competition Authority (“ Authority “) published the Guidelines on Digital Data Review During Dawn Raids (“ Guidelines “), which the Competition Board (“ Board “) accepted and published on its official website on October 8, 2020. The Guidelines provide information on procedures to be followed during the Competition Authority’s dawn raids, particularly on the review of electronic data.

What Do the Developments Mean?

The Guidelines clarify the following matters for the Authority’s dawn raids:

The Guidelines also state that undertakings may apply to the Competition Authority regarding any trade secrets contained in the copied documents, as it is the settled practice, regardless of whether these documents have been included in the case file from their review at the undertaking’s or on the Authority’s premises. Undertakings may apply to the Competition Authority under the Communiqué No. 2010/3 on the Right to Entry to the File and Protection of Trade Secrets for their trade secrets to be processed accordingly.

The Guidelines also indicate that data copied during dawn raids are subject to the protection of the attorney-client privilege. Documents will be considered privileged when the relevant communication is (i) made between the undertaking and independent external legal counsel who is not an employee of the undertaking; and (ii) centered on the undertaking’s exercise of its right to defense. Secondary legislation reflects the recent decision making practice of the Board, as the matter of attorney-client privilege has been a widely discussed point in its recent decisions.

Conclusion

The Competition Authority provides insightful information on the Authority’s dawn raid procedures with the newly published Guidelines on reviewing, copying and taking custody of data to be reviewed on the Authority’s premises. Undertakings should review their dawn raid procedures to ensure compliance with the Competition Authority’s requests, particularly on access to eDiscovery tools and administrator rights.

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