eDisclosure Information Project

Barrister Gordon Exall, author of the ever-useful Civil Litigation Brief, occasionally tweets links to his older articles, giving us the opportunity to remember the things which remain important.

He recently put up a link to his post from January 2022 When WeChat messages are lost or destroyed – by two-year-old: the adverse inferences a court can draw. That brought me back to an article I wrote at the time headed Adverse inferences fill in the gaps when the evidence is incomplete.

I said this:

Adverse inferences may be based on the assessment of witnesses and the evidence, and those adverse inferences may have a very deleterious effect on a party’s position and the outcome. Continue reading →

I have good memories of the eDiscovery / legal technology events which I attended in Dublin over the years. This was partly because the host jurisdiction was so interesting – law firms who used technology properly, discovery rules which provoked serious discussion, the presence of global tech businesses, and an interesting data protection context – all made for good discussions. It was partly because Dublin and Ireland are fabulous places for post-event tours.

It was also because the organisers worked so very hard to make programmes interesting and informative. Adrian Kiernan and La Touche Training have been consistently excellent in producing these events, and I am sorry to have missed the more recent ones.

That includes the one coming up on 29 November at Croke Park, Dublin. I was invited to take part but will not, alas, be there. The programme is here.  Continue reading →

I always appreciate cases about disclosure which attract the attention of the mainstream press. They remind us all, including those with no present thought of litigation, of the duties which arise in relation to the preservation of documents and data.

I have written more than once about two such cases – the solicitor who told his clients to “burn” a messaging app, and the high-profile libel action between Rebekah Vardy and Coleen Rooney. Both reached their conclusions last week. Continue reading →

I will readily admit that I have not read closely the 278 paragraphs in the judgment of Mr Justice Adam Johnson in Ocado Group Plc & Anor v McKeeve [2022] EWHC 2079 (Ch) (03 August 2022) – the “burn it” contempt case. I do not think that you need to do so either. It is enough to get the overall message that interfering with documents in civil litigation can have consequences that are very personal and not merely corporate, and potentially criminal, not merely civil.

There is a good summary of the facts in the Law Society Gazette of 3 August under the title City lawyer found in contempt over ‘burn it’ instruction. The judgment itself is here. The main action was concluded, and the sole subject was Mr McKeeve’s alleged contempt in the context of those proceedings.

The “burn it” story appears from paragraph 8: Continue reading →

What is a sensible approach to commenting on a judgment? You have to read it first, obviously, then try and distil two or three points from it which may have some value for the reader. I like to include a couple of quotations – there’s nothing like primary source material. I look around to see if anyone else has made some commentary which I don’t want to duplicate. I try to draw one or two conclusions of a long-term value. Not least, I often observe that discovery / disclosure is a difficult job and I urge people not to throw stones from the illusory comfort of their own greenhouses.

So, I thought, I’ll have a quick look at Cabo Concepts v MGA and knock out a quick article about it. Here’s the judgment… Crikey!

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Even the first step – just reading the thing – proved quite difficult. This was nothing to do with Mrs Justice Joanna Smith’s prose, which is as lucid as one could hope for, but with the display of judgments on the National Archives site to which they have been moved. Somebody seems to have decided that there is money to be saved by using very small print. I don’t follow the logic of this, but this is the first web page which I have ever had to magnify using my browser’s zoom function.

It was not too difficult to identify the main subject – a trial postponed for two years because of disclosure failures – and the judgment clearly sets out the key topics with a brief procedural history, a summary of the circumstances in which indemnity costs are payable, a series of disclosure failings grouped under five neat headings, a discussion about Unless orders, and the award of 45% of the claimed indemnity costs allegedly thrown away by the very late postponement of the trial. Continue reading →

The Greater London Authority’s oversight committee is soon due to publish a report into whether Boris Johnson abused his position as London mayor to “benefit and reward” Jennifer Arcuri’s companies, over-ruling official advice in relation both to sponsorship and to her involvement with Johnson on official foreign trade missions. The story is told in a Guardian article of January 2022 here.

The discovery / disclosure point arises because the investigation was reopened when the GLA was given further documents by Arcuri and her company. It is now said in terms that documents were deleted – the Guardian article says that ‘the original IOPC inquiry was hampered by the deletion of key email and phone records at City Hall that prevented the watchdog from “reviewing relevant evidence”’. The deletions came to light because of gaps in the email trail.

When I wrote about this in June 2020, it was not clear how documents came to be missing. I reported that the investigators had said that, “some of the records it had wanted to see ‘either never existed or have been deleted’”. I said:

There is an ambiguity in this which makes my nostrils twitch. When they say that documents ‘either never existed or have been deleted’, are these two categories of documents – the “never existed” ones and the deleted ones – or one category whose absence is unexplained?

The GLA now seems clear that documents have been deleted. Continue reading →

Unless there is a late outbreak of common sense, the libel action brought by Coleen Rooney against the other one (or is it the other way round?) begins today. If you are interested in the story, the BBC has an article today which, among other things, gives credit to the inventor of the “Wagatha Christie” tag.

It features here because of a couple of disclosure points which are of passing interest (that is, their determination will not change anything, but it is always good to have disclosure issues illuminated for public attention).

Its origin lies in social media data – Instagram posts which, so it is claimed, could only be seen by one person – and one of the recurring points in this blog is that social media creates evidence which may be useful if you know how to get at it (and remember to think of it). Here it is central to the story, not merely a peripheral point. Continue reading →

We recently saw a case where a phone bearing WhatsApp messages went yachting and ended up in the North Sea (my article is here). Next up is WeChat messages allegedly deleted by a two-year-old.

I don’t really need to write in any detail about ED & F Man Capital Markets Ltd v Come Harvest Holdings Ltd & Ors [2022] EWHC 229 (Comm), and what it says about adverse inferences, because Gordon Exall has (as so often) already filleted the judgment for the points which matter – see When WeChat messages are lost or destroyed – by a two-year-old: the adverse inferences a court can draw.

For discovery / disclosure purposes, two overlapping points arise:

• Discussions (in this case on WeChat) in advance of more formal exchanges by email are no less potentially discoverable than the subsequent emails.
• Adverse inferences may be based on the assessment of witnesses and the evidence, and those adverse inferences may have a very deleterious effect on a party’s position and the outcome.

Continue reading →

I wrote last week about the pre-trial hearing in the libel action between Rebecca Vardy and Coleen Rooney. My only source was a news report in the Times, from which the points of passing interest for disclosure enthusiasts concerned a phone dropped into the North Sea and WhatsApp data which had curiously gone missing in transit to lawyers.

The judgment covers more than these things and more than disclosure – Gordon Exall has written, for example, about the delay points which arose. There are a few disclosure elements beyond the lost phone and the WhatsApp data which are worth mentioning.

We learn nothing new about the drowned phone, and it will be for the trial judge to consider this, including the question whether the phone and its contents matter much in the wider scheme of things. Continue reading →

Even its enthusiasts have to admit that most stories of electronic discovery / disclosure lack popular appeal. Every so often, however, a story comes along which puts eDiscovery into the headlines. We grab them, thankful for something which pushes our professional topic into public consciousness. Most such stories involve data which has gone missing. The latest one from the UK involves footballers’ wives, Instagram and a curious conjunction of circumstances in which the North Sea played a part.

It is important, first, to be clear that a story is not necessarily untrue because it defies belief. One of the recent missing data stories involved Lord Bethell, a minister in Boris Johnson’s Conservative government. Bethell himself is not necessarily corrupt because corruption is fundamental to Boris Johnson’s system of government. He is not necessarily corrupt because his story involves large government contracts given to Tory party donors by means of messages bypassing procurement rules and kept away from civil servants on private phones in breach of the procurement rules. He is not necessarily lying because he told four different stories about the missing WhatsApp data. We must approach these things with an open mind. Continue reading →

Barrister Gordon Exall is once again my source for a judgment about disclosure in the High Court of England and Wales. The case is Ayannuga & Ors v One Shot Products Ltd
and the judgment was delivered on 1 November following an application for orders against the defendants relating to their disclosure. Gordon Exall’s blog post is here.

There is a dry and understated comment near the top of Gordon’s post – “There were some mishaps with the defendant’s disclosure process”. The interest (for us as well as for the court) is that documents were scanned and shredded shortly after the defendants were put on notice of a claim which included death and serious injury. The judgment is concerned partly with directing efforts to find out what happened, and partly to the steps to be taken as a technical and investigative matter to ensure that any surviving relevant documents were secured.

I will not summarise Gordon Exall’s post which, as usual, extracts the bits which matter – matter, that is, to anyone on the receiving end of a potential claim and to those advising them. Continue reading →

A US case was struck out, and the plaintiff and his lawyers suffered financial sanctions, after clever experts spotted that the emoji on a screenshot of a text was not the one in use on the date of the alleged transmission. Most cases don’t involve the detailed expert appraisal required to spot things like this, but it is prudent to consider the possibility that a document may not be all it seems to be.

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In all the talk about new forms of discovery data, it is easy to miss the fact that we have gone in a circle in at least one respect. The ancient Egyptians used hieroglyphics to mean something more usually conveyed in words. Here, for example, is a cat, something Egyptians were fond of:

Ages pass, and we are again reduced to using little pictures to represent things. Here, for example, is the emoji representation of a cat:

Actually it is not “the emoji representation of a cat”. It is one of the many emoji representations of a cat. Every man and his dog has his own cat emoji, it seems, and this is Twitter’s variant. I got it from this page, which shows which tech company uses which emoji cats. It would be easy to be caught out by that, wouldn’t it, if you, say, mocked up a text message and used the wrong emoji? Read on, to see how that matters. Continue reading →

I am sorry, for more than one reason, to have to come back to Her Majesty’s Government as a source of discovery / disclosure stories, but they keep serving up incidents which are relevant to wider corporate disclosure. This time, it is about Matt Hancock, the former Health Secretary, who seems to have used his personal email account to manage correspondence about negotiating PPE contracts, creating the test-and-trace programme and the care homes strategy.

He was also the unwitting star of a video of an intense staff meeting, which raises interesting questions about surveillance and privacy, and is a living illustration of how proper compliance mechanisms ought to prevent wrongdoing.

Some of Matt Hancock’s deals were made with party donors, whose contributions weighed more heavily than their ability to deliver the goods; £39 billion seems to have disappeared largely without trace in the development of a test-and-trace process organised by one of his horse-racing mates;  the care home decision was perhaps the biggest single error in Hancock’s error-strewn handing of the pandemic, when Covid sufferers were despatched into care homes to infect their elderly residents.

Matt Hancock had form, as they say in racing circles. The horse-racing industry has always been generous in its gifts to Hancock’s constituency party, and got their return when he permitted the 2020 Cheltenham event to go ahead. This was the original superspreader occasion, right at the beginning of the pandemic, as Hancock was warned it would be. But he was in racing’s debt, and the event went ahead. Continue reading →

I wrote recently about an unfortunate “IT glitch” which wiped text messages passing between a senior police officer and the Home Secretary, Priti Patel. It was difficult to cover this story – I did not particularly want to call the officer a liar, and it was easier to assume that he had been let down by his IT department which, I strongly suspect, could have recovered the messages (or hired someone else to do so) if they had wanted to. In the event, the court did not seem too bothered – the facts arising from the alleged offence mattered more than any interference by Patel.

It would be quite wrong to wonder if Priti Patel, the vilest politician of her time, and one impatient with the constraints of mere law when it stands in her way, might have implied that the police officer might consider trading his elevated position in London for traffic control in a rural town. I am sure nothing of the sort was implied, and that an “IT glitch” really is to blame.

Another week, another “IT glitch”. This time it’s the turn of the UK Treasury which has, it seems, wiped data from several government-issued phones. By a singular stroke of misfortune, some of the “lost” messages cover the period when former prime minister David Cameron was sending streams of messages to the Treasury, its civil servants, and its political master Rishi Sunak on behalf of Greensill Capital. We now know that Cameron was being paid £40,000 per day for his strenuous lobbying, and it is very unfortunate that some of the replies are missing. This news arrives just as Michael Gove has barred Sue Gray, the government’s then ethics adviser, from taking questions about Greensill. Between that and “lost” texts, you’d think that the government had something to hide. Well, you may think that; I couldn’t possibly comment. Continue reading →

A casual observer of US discovery would conclude that the destruction of documents and data is a national pastime, with immense effort devoted both to deleting documents and to trying to prove that someone else has done so. To an outsider, it seemed almost an obsession in the years after the Zubulake opinions. The stakes were high, and the corresponding investment and effort were enormous.

It has never been quite so significant in England and Wales. One could, perhaps, devote several pages to a discussion about why this is so, but it is perhaps more to do with professional sanctions against lawyers than financial sanctions against their clients. I don’t think we are more inherently virtuous about it. Whatever the reasons, we don’t have the same level of overt concern about document destruction.

That does not mean that it does not happen. One of the cases mentioned below includes some discussion about the body of law which has developed on the subject. What is curious is that we have had two cases in a few days involving the deliberate destruction of documents. Continue reading →

This is a collection of  some eDiscovery-related things which have come up recently and which deserve to be captured. By chance rather than design, my side of the Atlantic features heavily.

Update your website contact details

Although I have no timetable for publishing these collections, I had intended to put this out this last week. The reason why I did not may have a message for others.

I changed the password for access to WordPress – I had not done so for a long time and an odd picture on my personal blog made me think it prudent to change the password. For whatever reason, Safari failed to record the new password, so I had locked myself out. No problem, you’d think – just apply to change it via the WordPress login. The usual email did not appear with the update link. I worked out eventually that the email address recorded with WordPress no longer existed – its only purpose was fielding these update messages and it seems that Virgin had closed it down because it seemed to be unused.

I then had to prove to WordPress that it was really me who wanted to access the site – it was not difficult (they were helpful) but it did take a while.

Two messages then – change your passwords more frequently than I did, and review your contact information stored on such sites to be sure of receiving the password update messages.

Overhaul of discovery procedures in Ireland Continue reading →

We live in a world where it is necessary to advise people not to drink the hand sanitiser, and where cautious lawyers make you put up notices warning that the water coming from a hot tap may be hot.

In that spirit, I have put a note at the top of my two posts (here and here) about the photographs of President Trump “working” in hospital:

This and its accompanying article are about the probability that the Trump hospital pictures were taken on the date and at the time appearing from the published screenshots of the EXIF viewer. This shouldn’t need saying. but they are not advanced treatises, still less advice, on all the technical and legal issues which can arise when handling electronic data. For that you will want to take specialist advice.

My second post was called Irritating interjections from LinkedIn commentators with nothing worth adding to the subject. The “irritating interjections” were a kind of whataboutery, equivalent to:

Your article about rowing boats on the pond failed to mention the risk of hitting an iceberg at night in mid-Atlantic Continue reading →

This and its accompanying article are about the probability that the Trump hospital pictures were taken on the date and at the time appearing from the published screenshots of the EXIF viewer. This shouldn’t need saying. but they are not advanced treatises, still less advice, on all the technical and legal issues which can arise when handling electronic data. For that you will want to take specialist advice.

The painting “The Irritating Gentleman” by Berthold Woltze is well known now, often used to illustrate mansplaining. It was only when I looked for it as an illustration for this post that I discovered that “Irritating” was Woltze’s label for the man giving his unwanted views to a woman on a train. I had been casting around for a word to describe the people mentioned below, seeking a word slightly softer than the ones I used in the first draft. “Irritating” is perfect for the man (and it’s always a man) who dumps unhelpful comments against a social media post without any positive contribution to the discussion. 

A little man on LinkedIn has challenged the premise of my article about the timing of the Trump hospital photographs. He was rude as well as wrong, but he is not worth powder and shot so I won’t identify him. Another man says that this was “Not the best example of what EXIF can do”. Gosh – how very remiss of me.

It seemed right, however, to double-check the point made by the first observation, and to deal briefly with the second. I do not claim infallibility in this area, but there are two reasons why I felt confident of my ground as to to the dates and times of the photographs. Continue reading →