Two separate cases raised a similar point involving the interrogation of imaged digital data taken during the execution of a search and seizure order (SSO), asking who goes first in inspecting and interrogating that data (after the filtering out of privileged material), the claimant or the defendant.
The judge (Mann J) held that the claimants are generally entitled to a first look at the imaged disk. The decision has to be dealt with on the basis of the particular facts of a particular case. There will be many factors to consider, some are highlighted below.
The order will have been obtained on the basis of a strong prima facie case of not only the dishonesty of the defendant but also the propensity of the defendant to cover their tracks by destroying evidence. The defendant should not necessarily be trusted to carry out disclosure properly, though this factor may be ameliorated by the defendant’s solicitors being involved.
Also, the relevance of some important documents may be honestly missed by the defendant’s solicitors. Furthermore, urgency may justify the claimant’s carrying out the search. It might be necessary to follow property, or to identify other wrongdoers in a supply chain, and having the defendant’s solicitor carry out the search may not fulfil that need.
The application of search terms may narrow the field to such an extent that the exercise becomes akin to the more familiar one of compelling disclosure of a class of documents, not all of which may be relevant, but which can be searched by the receiving party for relevance.
The resources available to the claimant may be greater than those available to the defendant so that it makes practical sense, in order to further the overriding objective, to allow the claimant to go first, though this must not be allowed to become a charter for the well-heeled to get an advantage over others.
The whole exercise is a highly intrusive one, and any digital image of the kind in issue in these cases is likely to contain irrelevant material which is private and confidential (if not privileged) and which should not, if it can be avoided, be seen by the claimant at all.
Although a case founded in civil law, it could have a significant impact if search and seizure orders are deployed prior to private prosecutions. It also leaves a wide amount of discretion in the hands of the claimant who would be wise to ensure that suitable practices and procedures are put in place prior to the execution of the SSO to head off potential claims of abuse of process.
Case: A v B [2019] EWHC 2089 (Ch) 25 July 2019 (Mann J).
Credit Practical Law
