By: Tristan Jenkinson
“The essential purpose of a search order is not to provide early disclosure, but rather to preserve documents necessary for the proper conduct of litigation before these courts”
An important judgement was made last week relating to search orders. The judgement covers a number of legal points, but in particular highlights that search orders are to be used to ensure the preservation of data and not as a means to gain early disclosure.
(https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Ch/2020/30.html)
There are some important points that both lawyers and technology providers should be aware (and wary) of. This article is prepared by a non-lawyer and is for information purposes only.
Background
As high level background, the claimants had reason to suspect wrongdoing and were able to obtain a search order without notice to the defendants. The search order was for specific categories of documents referred to as “Listed Items” and allowed for those to be manually identified and provided on an item by item basis by the defendants, but also for computer experts to take forensic images of digital devices such as laptop and desktop computers and phones etc. which would be further searched for Listed Items. Both sets of data were provided to the claimant’s lawyers for safekeeping. The claimant’s lawyers later made use of the material to further their case without the consent of the defendants or the court.
The Content of the Search Order
The search order in this matter allowed for the search party (including named Computer Experts) to “search for, inspect, photograph, copy, print, save, or dictate, and deliver into the safekeeping of the Claimant’s solicitors all the documents and articles which are listed in Schedule B to this order”.
In particular, at paragraph 18 of the search order “The Computer Experts may take a copy of the files on any computers found on the premises for analysis by them following the completion of the search. Following this analysis, they may deliver into the safekeeping of the Claimant’s solicitors any further listed items which they recover”.
Identifying Listed Items in Computer Images
In his judgement, Mr Justice Marcus Smith raises the issue of how the Computer Experts were to identify whether any document was considered to be a Listed Item or not – as would be required under paragraph 18 discussed above.
“Quite how the Computer Experts are supposed to do this – not being lawyers and one would assume having no understanding of the nature of the dispute between the Claimant and the First and Second Defendants – is impossible to say. How are computer experts to discern what falls within and what falls without the Listed Items…?”
The technology that is available to legal technology providers (such as the Computer Experts in the order) is very advanced. It is possible to run complex sets of keywords, but far beyond this, there is a considerable wealth of analytical tools that can be used to search and investigate data using approaches such as predictive coding or continuous active learning.
It is important to raise, however, that automated processes alone, such as applying keywords, cannot (typically) isolate documents that fall into a descriptive category (for example “business documents relating to client X”). Although the category may be legally well defined, the use of keywords may well bring back false positives and/or may not bring back all the documents of that category. This approach would typically require review and legal decisions to be made regarding whether a document should be considered part of the category. This review, like the item by item search, would also usually identify items that are irrelevant, confidential, privileged or should be excluded due to self-incrimination.
Justice Smith makes this point – the Computer Experts likely do not have the ability to establish what documents should be considered Listed Items.
“… it is difficult to see how paragraph 18 is workable. It seems to me that the Computer Experts will never be in a position to deliver “into the safekeeping of the Claimant’s solicitors any further listed items which they recover””
Safekeeping
If the Computer Experts identified any Listed Items, they had to provide them “into the safekeeping of the Claimants solicitors”. The Listed Items identified by the item by item search were also to be delivered “into the safekeeping” of the Claimant’s solicitors under the order. This safekeeping is one of the key issues addressed in the judgement.
Following the execution of the search order, one of the supervising solicitors put together a report on its execution. This report included the below (emphasis added);
“It was agreed that the focus during the Search Period should be on the preservation of the contents of the computers and electronic devices by them being imaged. It was further agreed that there would follow discussion between the solicitors acting for the parties, after the search, as to how practically the Computer Experts would extract the listed items from the electronic devices, with any outstanding points between them to be held over for determination at the return date hearing.”
It was therefore agreed that there would need to be further discussions regarding how the Computer Experts would identify listed items and that other points would need to be determined at court.
The judgement explains that “in the event, the question of the search of the Imaged Materials [the material collected by the Computer Experts] … was never raised before a judge”.
At paragraph 71 of the judgement Justice Smith states that the claimant’s solicitors were entirely aware that if they wanted to use any of the material garnered from the search order, they would need the consent of the defendants. No such consent was given.
Use of Material from the Search Order
It appears that the Computer Experts applied keywords and subsequently a set of data (which the judgement refers to as was made available to the Claimants (and/or their solicitors). The exact process that was used is not clear.
The claimants made significant use of the material made available to them, using it to:
- Seek to commence proceedings against several defendants;
- Join other defendants to the claim; and
- Obtain evidence from third parties.
Search Orders are for Preservation
Justice Smith explains that “The essential purpose of a search order is not to provide early disclosure, but rather to preserve documents necessary for the proper conduct of litigation before these courts”.
To support this, Justice Smith states;
“Originally, search orders were made under the inherent jurisdiction of the court, but they now have a statutory basis, namely section 7 of the Civil Procedure Act 1997”.
The relevant section is then provided – tellingly entitled “Power of courts to make orders for preserving evidence”.
Justice Smith concludes “Very significantly, section 7 refers to preservation; there is no reference to disclosure.”. He then proceeds to cover the CPR (emphasis added);
“The relevant part of the CPR is to similar effect. CPR 25.1(1)(h) states:
“The court may grant the following interim remedies –
…
(h) an order (referred to as a “search order”) under section 7 of the Civil Procedure Act 1997 (order requiring a party to admit another party to premises for the purpose of preserving evidence, etc)”
Breach of the Search Order
Following on from the points above, Justice Smith makes clear that the Search Order has indeed been breached;
“… there has been a significant and unjustifiable breach by the Company of the terms of the Search Order. The short point is that the Search Order contains no provision sanctioning anything other than the preservation of Listed Items”.
“In my judgment it is plain that the Search Order contains no provision justifying either the search by the Company’s solicitors of the Search Order Materials, still less the use of the Searched Material resulting from a search. A unilaterally conducted keyword search over the Search Order Materials was a serious and completely unjustified breach of the terms of the Search Order; the use of the Searched Material was similarly a serious and completely unjustified breach of the terms of the Search Order.
The Remedy
Justice Smith makes it clear that he could strike out the claimants statement of case – in whole or in part – for their breach of the search order, but makes it clear that such action should only be used in exceptional cases and does not do so – at the present time.
“Although I find the Company’s breach of the Search Order to have been flagrant and very serious, I do not consider that it would be appropriate at this point in time to strike out all or any part of the Company’s statement of case.”
Instead a series of actions are laid out to attempt a retrospective correction of the breach. The claimants were to pay the costs for the following actions:
- The claimants to provide a listing of the material resulting from the searches run by the Computer Experts
- The claimants to hand over the material collected (both by the item by item search and the data collected by the Computer Experts) to a third party law firm who will
- Remove privilege and self-incrimatory material
- Identify relevant materials
- The claimants must explain what use has been made of the materials from the search order
Conclusions
Electronic evidence can complicate the search order process. Given the volume of the data an item by item approach onsite is not usually practical. It is also difficult for Computer Experts to identify listed material using automated means only and they may not be able to make a legal decision on the status of the documents. Unilaterally running keywords to identify such material would likely not be an acceptable protocol.
Great care should be taken if search orders are being used to take steps beyond those to preserve data.
Dealing with Imaged Material
Justice Smith’s judgement raises that there is a standard form Search Order appended to CPR PD 25A, but that this is not necessarily practical for material from digital devices. Justice Smith does then offer some guidance on How to deal with Imaged Material, which is included below;
(b) How to deal with Imaged Material
- What the Search Order Precedent envisages is an (electronic) item-by-item review, whereby the respondent facilitates the display of a listed item, so that that item can be read and copied. It is obvious – as, indeed, footnote 10 in the Search Order Precedent recognises – that this unlikely to be a practical way forward in any normal IT environment. The fact is that imaging is both less disruptive for the respondent and a more efficient way to proceed with a search.
- However, it implies the production by the respondent to the search order of material that almost certainly will include non-listed items and may well include privileged and incriminatory items. An imaging approach, self-evidently, cannot accommodate the item-by-item approach to searching that is possible in the case of Non-Imaged Materials.
- In these circumstances, it is difficult, if not impossible, to see how disclosure can be combined with preservation. Ex hypothesi, the documents obtained through imaging will contain documents that are not listed items, and such items – as well as being irrelevant – may be confidential, privileged or incriminatory. The fact is that the steps described in paragraph 48(4) above, which serve to protect a respondent where there is an item-by-item search, cannot operate where there is an imaging of files. It is, therefore, impossible to see how disclosure can take place without a clear order of the court.
- Whilst such an order might be given prior to the return date, as a specific provision in the search order, such a course must be exceptional, since one does not know the nature and extent of what has been imaged until the imaging has taken place. Even then, one will not know what has been imaged. Absent exceptional circumstances, it seems to me that the respondent – and any other interested party – ought to be heard before disclosure of the Imaged Material is granted.
- This accords with the view expressed in the case-law. In Hewlett Packard, Mann J said this at [26]:
“I therefore agree with the submissions of the defendants in both cases that if there is to be an inspection of documents on the images at this stage and by the claimants then it needs to be justified as a separate exercise, and analysed in terms of the disclosure jurisdiction. The process of looking for relevant documents is akin to disclosure if it is not actual disclosure (as that process is understood under the CPR). I do not accept the submissions of Mr Cavender, QC, for the claimant in A v. B, that the inspection of the image is ancillary to the [search order], or at least it is not ancillary in any meaningful way. If anything, the search and seizure order is ancillary to disclosure, because it enables documents to be preserved for that purpose, but without necessarily determining who should do the disclosure…”
- Mann J referred with approval to the decision of Tugendhat J in CBS Butler Limited v. Brown, which concerned a search order which required the defendants to permit access to the defendant’s premises specifically to take an image of the computer disks there. No provision was included for inspection. In a subsequent application, the claimant sought to review the imaged files through keyword searches, with no anterior review for relevance (or anything else) by the defendant. Tugendhat J considered that there was nothing in the order that should be read as displacing the normal rule that it is the producing party – the party whose documents they are – that undertakes disclosure and that if the usual rule should be departed from, it should be justified and the subject of a specific order of the court. I respectfully agree.
- Mann J sought to articulate the factors that a court might seek to take into account when making provision for disclosure of imaged files at [30]. There are a number of other cases considering this – very fact-specific – question, notably McLennan Architects v. Jones and Roberts and Hi-Level Enterprise v. Levine.
The eDiscovery Channel 