A mirror reveals all - Imaging orders in litigation

Imaging orders are one of the most draconian tools in the English court’s armoury. A respondent to such an order can be required to hand over a complete mirror image of all of their data (regardless of relevance, privilege and confidentiality) to their opponent in litigation. In recent cases, this has also involved handing over login credentials to cloud storage services.

Despite their increased use, and obvious relevance given the reality that almost all documents and records are created electronically, relatively little attention has been paid to the use of imaging orders. At present, there is still no standard form imaging order to set out their scope and to proscribe the protections that should apply to the data that is obtained.

This article explains how the use of imaging orders has arisen, and the reasons why there is an urgent need for a standard approach to be adopted.

Background

The broad obligation in English court proceedings to disclose documents which adversely affect a party’s own case or support another party’s case has long required caution to be exercised whenever a business creates electronic documents. You can never know whether that e-mail, written without a moment’s consideration, will later become pivotal in a dispute, often years down the line.

Where there is strong evidence that a party might destroy or dispose of relevant documents, and such destruction/disposal has the potential to cause very serious damage to another party’s case, the court has the most draconian powers available to it to ensure that disclosable documents are preserved.

Traditionally, that remedy is a “search order” requiring the (potentially) offending party to allow their opponent access to their premises to search for, copy and retain the documents in question. Search orders are often obtained without notice to the party in question and cause considerable intrusion and embarrassment.

Imaging orders are a tool that the court has developed to reflect that, in modern business practice, the overwhelming majority of relevant documentation is created and held electronically. As imaging orders can be made with relatively little physical intrusion compared to their older sibling, the “search order”, it is likely that judges will be persuaded to grant this draconian remedy more frequently in future.

The increasing availability of imaging orders serves as a reminder to be cautious when creating documents in day-to-day business and, most importantly, to properly respect the need to preserve disclosable documents as soon as litigation is contemplated (which is usually long before court proceedings have actually been issued).

Imaging Orders In Practice

Imaging orders require a party to permit a forensic computer expert appointed by their opponent to make a complete copy (“image”) of the contents of storage media in or associated with computers, smartphones and cloud storage. The basic rule is that the image is then retained by the forensic computer expert, and not searched or inspected by anyone, until the parties return to court to determine how disclosure should proceed. The focus of the order is the preservation of disclosable documents to protect against the perceived risk that such documents will be prematurely disposed of or destroyed.

Imaging orders have their advantages. The process of copying storage media is physically much less intrusive than the search order regime, which usually resulted in rifling through a party’s filing cabinet and desk drawers. Whilst both search orders and imaging orders have previously been sought together, Lord Justice Arnold in TBD (Owen Holland Limited) v Simons and others [2020] EWCA Civ 1182 expressed concern that, given an imaging order had been made, no consideration had been given as to whether a search order was still required. In future it is likely that, in most cases where an imaging order is sought, a separate search order will be unnecessary, given the prevalence of electronic documents in modern business.

However, imaging orders are a blunt tool and a complete image of a particular storage media will capture all manner of confidential and commercially sensitive documents which are not relevant to the proceedings at hand and which should not be produced for the opponent’s review. Indeed, the idea of providing an opponent, often a competitor, with a complete copy of all records, accounts and IP, is likely to fill most businesses with a sense of horror.

It is for this reason that strict protections should be put in place to prevent the imaged data from being accessed by the party obtaining the imaging order. In that regard, Lord Justice Arnold in TBD confirmed that the presumption should be that only the party to whom those documents belonged should be permitted to review and search the imaged data for the purposes of giving disclosure in the usual way.

That is, however, a presumption which can be displaced where the court can be persuaded there is sufficient justification to do so. In a recent case, it was noted that an imaging order will have been obtained in the first place on the basis of a strong case that, without the order, evidence will be destroyed. Claimants will no doubt argue that the party in question should not be trusted to carry out the disclosure exercise properly, and that they (or their expert) should do so instead. The Courts have also identified other factors which might justify this being done, such as the ease by which one party may be able to identify relevant documents over the other, or where there is a particular urgency.

In light of these issues, it is surprising that a standard form of imaging order, setting out what can or cannot be done with imaged data, has not yet been developed. Once standard forms and safeguards are in place, parties and the courts will be able to identify minimum expectations, from which departures would need to be explained and justified.

Conclusion

In TBD, Lord Justice Arnold noted the relatively little authoritative consideration of imaging orders to date. He directed that the Civil Procedure Rules Committee consider the publication of a standard form of imaging order and the Committee in turn noted that direction in its October 2020 minutes.

The indications are such orders are likely to develop in popularity. Whilst the courts evidently acknowledge the draconian nature of such remedies, and the need to safeguard the interests of the respondent to ensure that the orders are both proportionate and necessary, it is difficult to imagine that it will not now be easier to convince a court to make an imaging order than it was to obtain a search order, given that imaging orders are considerably less physically intrusive.

In that context, the need to exercise caution in the creation of electronic documents and ever more importantly, comply with the requirement to preserve disclosable documents, becomes all the more acute where an imaging order against you may be the consequence of failing to preserve documents.

In the meantime, it is to be hoped that a standard form imaging order will be developed urgently, to regularise the use of this draconian relief, and to protect against that relief being abused.