Do the UK courts ever question the manner in which electronic evidence was collected? It is a source of much contention in the US but we have little case law directly on the point here. It is clearly vital to get it right, and equally clear that not everyone does, but why do we not hear more about it?
I listened to a webinar last week. Moderated by Patrick Burke, Assistant General Counsel at Guidance Software, it covered the steps which companies ought to take to be ready for litigation or for a regulatory investigation. Guidance has more than a passing interest in the subject, since their EnCase software is perhaps the best-known of the products which allows a company to take an image of an entire drive or of targeted documents and other data which may be required for disclosure. The speakers were at pains to stress that EnCase is not the only available solution.
I was one of them, bringing a UK perspective to the discussion. The others were Don Little, Corporate Counsel for Rolls Royce in the US, and John Rosenthal, Co-Head of the e-Discovery Group at Howrey LLP. Guidance are sponsors of the UK-based E-Disclosure Information Project which I run – my sponsors have in common that they are all interested in the UK rules, the trends and best practice in e-Disclosure, not just in selling things.
My input was much as you will find it anywhere else I speak or write – that the UK courts are becoming much more proactive in the management of cases and in particular on controlling the documents. The combination of a strict duty of disclosure and a narrow definition of what is disclosable, when coupled with tight control at Case Management Conferences, is putting a premium on early selection and on cost-effective ways of freezing and collecting the document population as soon as litigation threatens.
There is room for error in achieving this, whatever method you use. The most obvious question is whether you got every source, and everything relevant from every source. A solution like EnCase which is entirely under the control of a trained in-house team may well be best-placed to answer that. On the other hand, Ian Manning of FoxData – outsourced collections experts who are also sponsors of my Project – has a fund of stories about stumbling over large collections of servers or paper sources which the in-house people had overlooked, so there are arguments as well for an external eye.
Assuming you have found and copied them all, the next question is whether you have done it properly. Many of the defensibility arguments in the US arise because opponents are able to argue that some defect in the manner of collection undermines the evidential value of the result. Such arguments might arise, for example, where the dates and times of documents are critical to a case. It is clearly important in such circumstances to be able to show that the metadata has been preserved exactly as it stood and that any detailed evidence of changes – before and after collection – is available.
All those whose business involves collection and processing services stress their strength in proving what is called the “chain of custody” – the ability to show at every stage who handled the data and what, if any, changes were made to it. In the US, they go further and emphasise that their service is “defensible”, usually by reference to cases in which their methods were challenged unsuccessfully. Defensibility is obviously important, but resonates less with those giving disclosure in the UK. It is worth asking why this is so.
Mark Dingle of Simmons & Simmons raised a pertinent question on this point during the Q&A part of our webinar, asking if any of us knew of a case in which the UK courts had ruled documents as inadmissible because of a chain-of-custody point. My direct reply was no, I know of no such case. My more circuitous one was that the judge would decide at trial what weight to attach to a document – full, some or none – having regard to its chain of custody or other collection factors.
Stephen Mason’s extremely useful book Electronic Evidence – Disclosure, Discovery and Inadmissibility (LexisNexis Butterworths) has recently landed on my desk and supports my off-the-cuff reaction. The explicit power to exclude evidence which would otherwise be admissible is given by Rule 32.1(2) of the CPR, but Mason points to Great Future International Ltd v Sealand Housing Corpn ( All ER (D) 391 (Jul) at 24 where Arden L.J said that this power “must be used with great circumspection for the purpose of achieving the overriding objective”. In other words, the primary aim is to hear the case justly. Mason quotes from Cross and Tapper on Evidence at p 81 – “In modern times we admit the evidence and discuss its weight”.
We do not have the same tradition of fights to the death over procedural points as they have in the US. There a party has the power to have an opponent’s claim struck out for procedural defects regardless of the merits, and if they have the power then obviously they have the duty to try – a point lost on many over here who criticise US litigation attorneys by reference to an incomplete understanding of the drivers. The FRCP may look like the CPR in many ways, but the differences are at least as great as the similarities.
So why do the suppliers of software and services make so much of the defensibility of their processes in the UK market? Well, one reason is that lack of admissibility on technical grounds may sink you at trial even if it rarely blows you out of the water before trial. I suspect that the reason why we have not seen much of this yet is because there have been so few cases where it was either relevant or proportionate to raise the point. It may also be, of course, that the collections processes have actually ensured that the electronic collections have been done in a defensible manner, just as the marketing material suggests.
There is another point though. There may have been no cases yet in which documents have been ruled inadmissible before trial, but don’t bank on it not happening. If in most cases the overriding objective points towards deferring the arguments until trial, there will undoubtedly be a few where the opposite conclusion will be reached and the court will use its express powers under Rule 32.1 to exclude documents.
The whole defensibility / chain of custody business must be handled proportionately, that is, there is no point in spending large sums getting ready to defend a position which will never be attacked. Not every case warrants more than a simple copying exercise and a DVD writer. For those that do need something more, however, it does not cost much more to do the job properly and in a way which cannot be challenged.