Disclosure in the Digital Era

Disclosure has been under the spotlight in 2018. The collapse of a series of criminal cases has drawn attention to the difficulties of dealing with unused material in the form of digital media. Those difficulties exist equally in managing discovery in civil litigation. The way electronically stored information (“ESI”) is dealt with by lawyers and organisations can have a significant impact on the outcome of a case. Failure to implement a considered strategy could lead to the inadvertent disclosure of privileged material, adverse costs orders, or even the dismissal of the case. It is of vital importance to address these issues and manage them properly at the outset.

Two rape cases were discontinued within days of each other in the UK in December last year. One of them was already three days into the trial, but was undone by the revelation of text messages from the complainant’s phone which wholly undermined the prosecution case.  It was reported earlier this year that over 900 prosecutions were dropped in 2017 due to disclosure failings.  The Criminal Cases Review Commission in an annual report cited disclosure failures as the “continuing biggest single cause of miscarriages of justice”.

A Justice Select Committee inquiry took place earlier this year and a report was published in July. It concluded that the growth in digital material presents a challenge to police and prosecutors and measures have been outlined in the National Disclosure Improvement Plan for a new Digital Evidence Transfer System and the formation of a technology group.

In the view of Angela Rafferty QC, chair of the Criminal Bar Association, in most cases the failure to disclosure is not a result of bad faith by the police but due to cost-cutting and resource issues. A thorough review of the contents of the mobile phone of a defendant or complainant (text messages, call lists, emails, photos, documents, audio files) can be hugely time-consuming and is often hampered by passwords and encryption.  In the wider sphere of litigation, the ESI may be considerably more extensive.

Fraud investigations involving vast amounts of ESI held on multiple devices and servers in offices and homes give rise to an onerous duty for prosecutors in discharging their disclosure obligations. Similarly, litigators involved in commercial or trusts disputes going back many years may find their discovery obligations encompass ESI from the devices and cloud storage of a number of individuals and corporate entities, including emails, records and client files stored electronically, audio recordings of telephone calls, draft versions of documents, and multiple copies of items saved in different folders and as attachments to emails.

A paper published by the judiciary in the UK said the volume of data that can be disclosed has increased to ‘unmanageable proportions’. In the UK there have been proposals for changes to the civil disclosure regime. These would allow for two different types of disclosure: ‘basic’, the key documents necessary to understand the case, and ‘extended’, which will be under the control of the judge.  These reforms are intended to halt the ever-increasing costs of disclosure.

Whilst the defence might insist that every single piece of paper or every byte of data must be examined by the prosecution or the plaintiff, clearly it is impossible to review every item and the only way to manage such material is to adopt a strategy of proportionality. Measures are now encouraged to speed up the process and narrow down the amount of material for review by investigators and lawyers.  Courts in both civil and criminal proceedings have shown they endorse this approach.

In the criminal sphere, the Court of Appeal in England and Wales has considered how prosecutors should approach their disclosure obligations in fraud cases where a large amount of electronic documentation has been seized. In R v R [2016] 1 WLR 1872 it was emphasised that the prosecution must lead disclosure from the outset and adopt a considered and appropriately resourced approach.

There should be an overall disclosure strategy to include selection of software tools and the identification and isolation of material subject to legal professional privilege.   The prosecution should explain what it would and would not be doing, ideally in a disclosure management document.  Dialogue between the parties is encouraged and the defence has a duty to engage in the process to assist the court in furthering the overriding objective.  Search terms and sampling may be used appropriately, and are very much encouraged as a method of identifying relevant material using electronic tools and testing certain folders or drives that are deemed to be irrelevant.

Judicial case management powers should be utilised to ensure active and effective management of the disclosure process. The judgment stated that the constant aim had to be to make progress and that the prosecution is not required to “do the impossible”, nor should the duty of disclosure be rendered incapable of fulfilment through the physical impossibility of reading and scheduling each and every item of material seized.  Common sense must be applied and flexibility is crucial.  This approach has received approval in the Royal Court in AG v Byrne.

The use of electronic searches is often the first step in reducing material to manageable quantities for review, but caution is required as much time and money can be wasted on employing searches that are insufficiently focused and return numerous ‘hits’. Careful thought should be given to devising smart, Boolean searches to try to ensure capturing anything relevant or disclosable without also netting vast swathes of irrelevant material.  An important factor to bear in mind is that word searches will not necessarily identify any audio or video recordings on a device unless they happen to have been named appropriately.

Dip sampling featured in the plaintiff’s approach to discovery in an ongoing civil case in the Royal Court, CMC v Forster & others [2017] JRC188 in which a vast quantity of historic documentation was held in warehouses in Africa.  The Master’s first instance judgment set out why he was satisfied that the Plaintiff’s decision to dip sample 10% of this material was appropriate in the circumstances, where the task of reviewing every document in the warehouses would have been disproportionate and unlikely to yield relevant documents. Although the decision was overturned on appeal, it was not suggested that the Master was wrong to adopt a proportionate dip sampling approach as a matter of principle.

E-discovery platforms have been used successfully in dispute resolution for some years for managing the storage, searches, deduplication and review of data. Predictive coding was approved by the High Court in the UK in 2016 as a basis for determining which electronic documents are relevant to a dispute and is currently in use in Jersey litigation.

Whilst these tools are of huge assistance in narrowing down the material for review, it is important to avoid the temptation to skimp on a human review of the search results and simply offload large quantities of material on the other side for them to find anything relevant. In the US, the Securities and Exchange Commission has been criticised by a judge for ‘data-dumping’ over 10 million pages on its opponent.

The key is proportionality. It is important not to be put off by the size of the task and the sheer volume of material.  The courts have acknowledged that in cases involving a significant volume of ESI, only a fraction can be reviewed by human eyes.  Where a reasonable and proportionate approach has been applied, it’s far less likely that criticism can be levelled.

Early consideration of the overall material is crucial.  Where this is of a large quantity, advice should be sought on the correct approach.   The provision of a disclosure management document or disclosure review document for the judge and the other party setting out clearly the decisions and steps taken will help to demonstrate this and avoid disclosure challenges arising further down the line.

By Clara Hamon, Senior Associate