February 24, 2021
Computer records, text messages (including WhatsApp etc.), other instant messenger platforms and social media posts, have formed part of the litigation process of disclosure for many years. As the process has developed and become more sophisticated, the scope of disclosure has been refined and extended by the Courts.
In larger cases the Courts will usually order Electronic Disclosure involving principally the transfer of emails and documents from your computer onto a separate platform hosted by a company whose main business is Electronic Disclosure. They remain there until the conclusion of the trial. The search on your computer for relevant documents is normally made using keywords agreed by the parties and/or ordered by the Court.
The cost and uncertainties of litigation mean that it is best avoided hence the increasing use of Alternative Dispute Resolution involving amongst other things Mediation. It is widely believed that during the course of next year the Courts will be able to order parties to mediate – something they can only recommend at present.
Businesses and individuals should nevertheless be aware of the potential intrusiveness of disclosure always bearing in mind that most documents (in the widest sense) are disclosable whether they assist your case or not.
One of the main areas where disclosure is of considerable importance is that of injunctions, most often where a party is seeking a search order of premises to, for example, impound counterfeit goods. This is obtained without notice to the other party, the objective being to take the other party by surprise so that they cannot dispose of the property in question. This often arises in cases of copyright or trademark infringement including counterfeiting and bootlegging.
The other type of application is one for a freezing order where the party seeking it is trying to prevent the dissipation of assets by a Defendant pending the outcome of a claim. The English Courts have the power to order worldwide freezing orders.
The principal objective in both cases is the preservation of material documents. In recent times to assist in this objective, the Courts have ordered Computer Imaging of devices held by a Defendant. Currently, such orders are bespoke but a standard form of order for general use is being drawn up.
If you are the subject of a Computer Imaging Order, as the name suggests, you have to temporarily hand over your computer or other devices (including smart phones) so that a complete copy of the data on your computer is taken by an IT expert. In addition, the Courts can order you to hand over your passwords to data held in The Cloud. These orders are starting to be used as an alternative to the very intrusive and costly physical search of premises which usually involves a large number of lawyers supported more often than not by the police.
A lot of the data obtained will not be relevant to the claim, and the Court will specify how the Computer Image may be inspected having regard to relevance and the fact that certain documents are not required to be disclosed – for example, communications with your lawyer which are said to be ‘privileged’.
Although it is to be hoped that you will not be subject to such orders, it is nevertheless relevant to be aware of the possibility and to inform all personnel that their emails, text messages, social media posts, and other documents wherever situated may one day end up before a Court as part of a disclosure process. Circumspection in what you say in emails and other documents is therefore recommended.
As Computer Imaging Orders extend to The Cloud the Electronic Equivalent of ‘the dog ate my dinner’ is unlikely to work any longer. There have been cases of laptops being destroyed by sledgehammers or having their contents erased using available software products.
In order to back up the enforcement of Computer Imaging Orders, the Courts have reviewed and streamlined applications for committal. These are used where a party has deliberately flouted a Court order and will generally involve the payment of a fine, although in the most serious cases the Court can send a party to prison to “purge’ his/her contempt.
If you would like to talk to us about any issues raised in this article please contact David Gore Consultant David.firstname.lastname@example.org or call +44 20 3701 7395. Articles are for general guidance only and discuss the legal position in the UK at the time of publication unless stated otherwise. You must take legal advice and not rely on the information provided in our articles before taking action. We do not update our articles and therefore, past articles may not reflect the current legal position. Where we refer to Court decisions facts are stated as reported by the Court.