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.
WAGs are, I gather, the wives and girlfriends of footballers. I vaguely remember the acronym gaining currency in some ball-kicking contest of about 2006. Quite rightly, the WAGs acquired an identity distinct from their men, becoming cultural icons beloved of a certain type of newspaper and of social media. What they wore, what they did, and what they said became news for a certain type of audience.
The WAGs in the story are a Mrs Vardy and a Mrs Rooney. One accused the other of spreading stories about her and devised an elaborate scheme using Instagram’s targeting tools in a way which meant that a post could only be seen by the suspect. The litigation is a libel action brought by the target of this scheme. You and I might think that the courts’ scant resources might be better used, but we can’t deny the WAGs the right to bring their squabbles to court. After all, it makes work for lawyers, headlines for newspapers and gossip for the readers (and, incidentally, copy for me).
All that is by way of background. This week’s hearing was, apparently, intended to define the evidence to be put before the court at the forthcoming trial, and to consider an application to join Caroline Watt, Vardy’s former PR agent, as a party to the proceedings for misuse of private information and breach of the GDPR. I will let The Times of 8 February [£] take up the story
Watt’s mobile phone was “dropped overboard” into the North Sea shortly after the phone’s disclosure was specifically ordered by the court, it is alleged.
“Coincidentally, around the same time, all media files from Mrs Vardy’s WhatsApp conversation with Ms Watt also bizarrely disappeared (and from all backups), whilst apparently in the process of exporting it to her solicitors,” Rooney’s lawyers added.
“Even Mrs Vardy’s own expert describes the situation as ‘surprising’ and ‘unusual’.”
Seeing my first tweet about the North Sea story, US eDiscovery lawyer Ralph Losey asked “Is there any court in the world that would believe that?” – a good question. Professor Dominic Regan, the Mr Memory of the Civil Procedure Rules and judgments, recalled Tullett Prebon Plc & Ors v BGC Brokers LP & Ors  in which six witnesses had mislaid mobile phones or Blackberries, one of them on eight occasions. The judge said he was “satisfied that it was Mr Verrier’s gambit to ‘lose’ blackberries whenever he thought they might contain inconvenient material” and to instruct others to “lose” theirs. Of one such witness, he said “Her explanation as to how this had happened provided by her in witness statements was simply not credible.” The facts of that case posed no great difficulty for the judge.
Lord Bethell will, I hope, face more than inconvenient questions about the range of excuses he offered for losing his data. Why was he conducting high-value contracts for the benefit of “VIP lane” donors on his own phone anyway? What was so confidential about them that he wanted to keep them away from civil servants with their pesky insistence on proper procurement processes? We can guess, but let’s await the current litigation on the subject.
Back then to the WAGs and their amusing story. The first version in the Times, quoted above, said simply that the phone was “dropped overboard”. That seemed to imply a deliberate act – hand over the side, fingers loosening, and a gentle sound as the device disappeared into the briny. Later versions talked of a mishap in rough seas, summoning images of a phone dashed from the hand by fearsome waves. I have to say that if my phone was the subject of a recent order for examination, I’d wrap it in cotton wool, lock it in a box, and deliver it personally to the lawyers, not take it yachting.
The idea that WhatsApp data “bizarrely disappeared” en route to Mrs Vardy’s lawyers is, as her own experts say, ‘surprising’ and ‘unusual’. Perhaps Lord Bethell can offer some ideas from his apparently limitless trove of narratives about missing WhatsApp data.
We don’t know enough to guess what line the court will take on either of the stories. I seem to be alone in knowing nothing of these people, so I can form no view on their credibility. I have no idea how relevant the missing data is to the issues, though it must have seemed important to somebody if it was the subject of a court order.
I want only two things from all this: that litigants will pay more attention to their disclosure duties and learn to take more care of their data, and that this petty squabble would clear out of the way of cases which actually matter.