Case notes

Index of cases

Nichia Corporation v Argos Limited (2007) EWCA 741 (17th July 2007)

www.bailii.org/ew/cases/EWCA/Civ/2007/741.html

I include this case because of Lord Justice Jacob’s dissenting judgment which contains what Lord Justice Rix called “the masterly review of the history and jurisprudence of the role of disclosure”. The relevant paragraphs of the judgment are 45 to 65. They contain the background and history of disclosure/discovery and a number of the early cases on disclosure (largely in the context of patent actions) and provide a wonderful contextual setting for this subject. The details of the case need not concern us but for anyone unfamiliar with the subject, the judgment provides a succinct exposition of the history of disclosure. It is none the worse for being part of the dissenting judgment. As Lord Denning once remarked, on stepping down from the House of Lords, now the Supreme Court, to become the Master of the Rolls, “the chances of my doing justice in the Court of Appeal are 2:1 against”!

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Multiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd & Anor [2008] EWHC 2220 (TCC)

www.bailii.org/ew/cases/EWHC/TCC/2008/2220.html

Almost everybody has heard of the protracted litigation between Multiplex and various parties arising out of the construction of the new National Stadium at Wembley. Amongst those disputes the largest, and most publicised, was that between Multiplex and its steelwork sub-contractor, Cleveland Bridge (CB).

Less well known are the 6 paragraphs (out of a total of 1693!) in a judgment given towards the end of last year in yet another Multiplex/CB case (no. 6) and entitled “The Lesson to be drawn from this Litigation”…

In those paragraphs the Judge criticised the parties’ failure to resolve the matter through ADR or other means. He particularly pointed to the 550 ring files which were produced for the Court, the £1m photocopying bill and the total costs of the parties of some £14M which were wholly disproportionate to the amounts realised.

He ended by saying that “the parties might be well advised to use the dispute resolution service offered by the [TCC] in a more conventional and commercial manner than has been adopted in this case.”

See also: The Road from Wembley, 12th August, 2009

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Digicel (St Lucia) Ltd and Others v Cable & Wireless PLC and Others (2008) EWHC 2522

www.bailii.org/ew/cases/EWHC/Ch/2008/2522.html

Perhaps surprisingly, Digicel in 2008 was the first English case dealing with electronic disclosure despite the fact that the Woolf Reforms had come into effect in April 1999. It illustrated the danger of the parties not agreeing the way in which they should handle the disclosure process despite the requirement in the CPR that the parties should cooperate with one another in this area by agreeing the process to be adopted, what electronic documents should be preserved and agreeing the key word searches to be applied. The lawyers acting for Cable & Wireless had been provided with in excess of 1 million electronic documents. These were narrowed down by key word searches and de-duplication to 197,000 for review and 5,212 documents (out of the original 1 million) were disclosed. The cost of this process, which took 6.700 hours was over £2 million.

Digicel applied for an order for specific disclosure of electronic documents and an order that certain back up tapes be restored and searched and for further keyword searches to be undertaken.

The court was critical of the failure to agree the keyword searches and said that the parties should have come to court in the absence of agreement for the court to sort out the issues before the time for disclosure expired. Cable & Wireless were ordered to restore some of the back up tapes, to redo certain keyword searches and incurred significant extra cost on the way and because they had to give additional disclosure as well.

An exercise that had cost over £2 million had in effect to be done again at considerable extra cost.

PS Winning the battle does not always ensure you win the war! The latest act in the Digicel drama came at the end of April 2010 when Digicel lost its claim and was ordered to pay indemnity costs widely publicised as a sum in the region of £15.5 million! For our short commentary on this aspect of the case, refer to Winning the battle and losing the war, posted on May 5th 2010

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Hedrich v Standard Bank (2008) EWCA Civ 905

www.bailii.org/ew/cases/EWCA/Civ/2008/905.html

A firm of solicitors narrowly avoided a wasted costs order in this case where certain key documents were only disclosed during the trial of the action. It was alleged against the solicitors that they had failed in their duty to ensure that their client gave proper disclosure. The Court of Appeal declined to make the order on the basis that the solicitors had not realised that their client had not given disclosure of the relevant documents. The lesson here is that if solicitors are found not to have given the proper advice to their client about the ambit of disclosure, a wasted costs order could and probably would be made against them.

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Abela v Hammonds HC07C00250

PDF: blog.millnet.co.uk/resources/Abela-Hammonds-Suddards.pdf

In this case, further disclosure of email and other electronic documents was requested from Hammonds. They had previously refused to give electronic disclosure voluntarily on the grounds that the relevant emails had been printed out and placed in a paper file and that fee-earners had been asked for any documents which would include electronic documents. The solicitors also said that it would be disproportionate and too expensive to provide the supplementary disclosure and said it would cost in the region of £150,000 to restore back up tapes.

The judge made it clear that he did not accept this argument. He wanted to hear further argument after they had investigated how they might narrow the issues and searches so that a reasonable search could be devised.

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Earles v Barclays Bank PLC (2009) EWHC 2500

www.bailii.org/ew/cases/EWHC/Mercantile/2009/2500.html

I suspect this is the case which, in time, will prove to have been the one with the seismic effect. The issues were relatively straightforward. Mr Earles sued his bank over some disputed transfers between his various accounts. This was the main issue although there were two other subsidiary issues but what marks this case out is the comments made by His Honour Judge Simon Brown QC in the Birmingham Mercantile Court about evidence, disclosure, the CPR and ultimately costs.

The Earles judgement and its ramifications have been mentioned many times in the Smart e-Discovery blog:

Readers may also refer to an article in the Times of 18th March 2010, touching on many of the same subjects: Eversheds report looks at how ‘perfect storm’ will affect the legal profession

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Goodale v Ministry of Justice (2009) EWHC 3834 (QB)

www.bailii.org/ew/cases/EWHC/QB/2009/B41.html

If the Earles case was a bombshell, Goodale, which followed early in 2010, is likely to have an even wider effect on the litigation landscape. By annexing the draft ESI Questionnaire to his judgment, the Master has effectively made it impossible for litigation lawyers to ignore the impact of technology in litigation in the future. The draft ESI questionnaire is now a publicly available document in a way which would not have happened had the courts decided to await its publication as a practice direction later this year after further scrutiny by the Rules Committee.

The case concerned a group action involving the opiate dependent prisoners’ claim against the Ministry of Justice (MOJ) over the government’s policy of a “one size fits all” drug detoxification regime in prisons which has seen prisoners suffer and, it is alleged, in one case caused the death of the prisoner concerned.

The MOJ argued that it should not have to make disclosure of ESI, although it did agree to disclose paper documents. The MOJ argued that the parties and the court should look at the paper documents disclosed and only then come to a decision whether disclosure of ESI was necessary and, if so, the extent of such disclosure.

The Master found that standard disclosure was appropriate. The effect of that not altogether surprising conclusion was that the MOJ would have to conduct a reasonable search for all documents to be disclosed including ESI.

What is more, the Master said that the Court must control the search exercise to ensure it was proportionate to the issues in the case. He rejected the MOJ argument that ESI could be looked at later on and emphasised that the extent of the search should not be open-ended. Because the defendant department had not given any information about their ESI, he accepted that no one knew what was available, how it was to be collected and how relevant it might be and said:

“At the moment we are just staring into open space as to what the volume of documents produced by a search is going to be. (paragraph 27).

The judgment goes on to give guidance on the approach to be adopted in carrying out a search of ESI. In broad terms it confirms that the old approach under the RSC still holds sway. It provides for a starting point of the key people involved in the case and suggests an incremental approach. It is normal for the key documents to be owned by the key players.

You then move onto consider “key word” searches of the ESI belonging to those key individuals on the basis that while that is a crude way of searching, it is likely to give some reasonable idea of what might be available and the quantity of it.

Once you have obtained this basic information the parties should consider the use of specialists and specialist software to fine-tune the results and carry out the process of de-duplication, before you move on to a review with “real people”.

The ESI Questionnaire is not meant to be a bureaucratic tick box exercise. It is meant to be a guide to the areas where issues may arise. Not all the steps in the questionnaire have to be completed but only the ones relevant to the particular case. It is for the Court to control the process and it may decide that the Questionnaire should not be used at all or it may prescribe what parts of it shall apply to a particular case.

This is an excellent example of active case management by a judge who knows what he is talking about. The Master has set out in simple terms that everyone can understand what the courts now expect of litigants and as such it is hugely to be welcomed, coming, as it does, some 11 years after the Woolf reforms and a period of almost non existent intervention by the courts into the process of disclosure.

It is a new world, but one in which all parties can be confident that the court intends to hold the ring between the warring parties in this area. What lawyers need to understand is that there is now no room for the argument that there should be no or only limited disclosure on the grounds that it might be expensive or inconvenient. The parties must go through the questionnaire and come up with answers to the questions posed and in the absence of agreement the court will direct how disclosure will proceed.

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Vector Investments v Williams (2009) EWHC 3601 (TCC)

www.bailii.org/ew/cases/EWHC/TCC/2009/3601.html

This was a judgment of Mr Justice Ramsey in the TCC. As so often happens in relation to disclosure the facts of the case are not pertinent to the principles to be extracted from the case. The case involved a substantial argument on costs as a result of which the successful claimant was ordered to pay for unhelpful disclosure.

Although it is clear from the judgment that the disclosure exercise was on paper the judge’s comments would apply equally to an electronic disclosure exercise.

There are three main points to note in the section of the judgment between paragraphs 84 and 94:

Firstly, the lawyers acting for the claimants raised a number of times in correspondence the need for a meeting to discuss disclosure and inspection. The meeting never took place, which the judge described as “regrettable” (para 90).

Secondly, there were references in the correspondence between the lawyers to possible applications to the court in relation to the issue of the way in which the documents were disclosed. The Judge said that: “if major problems arise in inspection, the parties should apply to the court so that the issues are raised and dealt with at the time” (para 91).

Thirdly, the Judge was critical of the parties for their failure to consider the effect of CPR Rule 31.9 which sets out which copy documents need to be disclosed.

31.9

(1) A party need not disclose more than one copy of a document.

(2) A copy of a document that contains a modification, obliteration or other marking or feature –

(a) on which a party intends to rely; or

(b) which adversely affects his own case or another party’s case or supports another party’s case;

shall be treated as a separate document.

(Rule 31.4 sets out the meaning of a copy of a document)

The Judge ordered Vector, the successful claimant, to pay £20,000 in respect of the inspection exercise (para 94) being persuaded that the approach they had taken was to disclose whole files containing duplicate and unnecessary documents which led to unnecessary costs being incurred by the defendant, Williams, in carrying out inspection (para 93).


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The Queen (on the application of Al-Sweady and Others) v The Secretary of State for Defence (2009) EWHC 2387 (Admin)

www.bailii.org/ew/cases/EWHC/Admin/2009/2387.html

The claimants had to make a number of applications for disclosure. The case arose out of an incident in Iraq on 14th May 2004 when British troops were ambushed by Iraqi insurgents at a checkpoint known as Danny Boy. There were hotly contested allegations that some of the Iraqis were tortured and then killed after they had been taken prisoner and issues arose under the European Convention on Human Rights.

This case effectively introduced the court’s policy of “naming and shaming” those who fail to discharge disclosure obligations. The Court of Appeal was highly critical of the attitude adopted by the MOD to their obligation to disclose. Lord Justice Scott Baker said that the court had been so concerned at the lamentable approach of the Royal Military Police (“RMP”) to disclosure that they had invited both the Provost Marshall, in charge of the RMP, and the Treasury Solicitor to come to court to assist in ensuring that proper disclosure took place.

The Secretary of State was ordered to pay indemnity costs to the claimants of a sum believed to have exceeded £1 Million. The court regretted that so much public money and court time had been wasted as a “consequence of the persistent and repeated failure by the Secretary of State to comply with his duties of disclosure”.

The court also criticised the conduct of Colonel Dudley Giles who was the RMP officer responsible for collating the RMP disclosure. In a further swingeing criticism, the court warned that if Colonel Giles was put forward subsequently as a principal witness or had any future responsibility for disclosure, the court seized of the matter “should approach his evidence with the greatest caution”. The court said that Colonel Giles lacked the necessary objectivity, proficiency and reliability which should be the hallmark of a witness put forward “especially by a Secretary of State in judicial review proceedings or relied on by the Secretary of State to make proper disclosure”.

The message to all lawyers and their clients is clear. Disclosure obligations are to be taken seriously and in default, the harshest penalties will be applied and the culprits named and shamed.


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The Queen (on the application of Sharon Shoesmith) v OFSTED and The Secretary of State for Children Schools and Families and The London Borough of Haringey

www.judiciary.gov.uk/judgment_guidance/judgments/shoesmith.htm

Following the death of Baby P, the Secretary of State for Children, Schools and Families, Ed Balls, dismissed Sharon Shoesmith from her post as Head of Haringey’s Department for Children’s Services. She applied to the court by way of judicial review and is also claiming in the Employment Tribunal for unfair dismissal and sexual discrimination.

Mr Justice Foskett delivered his judgment in April 2010 and dismissed the claim by the claimant. She may yet appeal but in the meantime, the judge had interesting things to say about disclosure and the duty of candour in judicial review proceedings.

He dealt with these issues in Appendix 2 of the judgment and complained of the “inept” handling of disclosure by OFSTED and an instruction to delete emails, uncovered during the course of the case. The judge was profoundly concerned with these issues and indicated he intended to take matters up with the Treasury Solicitor personally (see appendix 2 paragraph 41 of the judgment).

Whatever the outcome of the meeting with the Treasury Solicitor, the courts have put down another marker that failure properly to discharge disclosure obligations will have serious consequences.

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Al Rawi and others v The Security Service and others 2010 EWCA Civ 482

www.bailii.org/ew/cases/EWCA/Civ/2010/482.html

The Court of Appeal has allowed the claimants’ appeal from the judgment of Mr Justice Silber and has stated that it is not open to a court in England and Wales, in the absence of statutory authority, to order a closed material procedure for the trial of a civil claim for damages in tort and breach of statutory duty.

Broadly speaking, a closed material procedure would have allowed the defendants to proceed to trial on the basis that they were permitted to comply with their disclosure obligations and rely on the documents and evidence despite not making the material available to the other parties (on grounds of national security etc).

The claim was for damages for false imprisonment, conspiracy to injure, trespass to the person, torture, breach of contract, negligence, misfeasance in a public office and breaches of the Human Rights Act 1998 in respect of the detention of the claimants in places such as Guantanamo Bay.

The arguments are not essentially e-disclosure arguments but concern such issues as public interest immunity, the obligations in relation to disclosure in the CPR and a consideration of the pros and cons of the closed material procedure and a discussion of the respects in which the closed material procedure conflicts with the principles laid down in the CPR and the overriding objective.

The case does not appear to consider any issues arising from e-disclosure but concerns disclosure obligations in general and illustrates how seriously the courts will interpret and enforce those obligations.

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Fiddes v Channel 4 TV Corporation and another 2010 EWCA Civ 516

www.bailii.org/ew/cases/EWCA/Civ/2010/516.html

The Court of Appeal considered an application by the claimant for specific disclosure in a libel action. It concerned the practicalities of restoring back up tapes and the cost of doing so weighed against the value to be obtained as a result. The action concerned a broadcast called “The Jacksons are coming” which concerned the visit to Cornwall of the family of the late Michael Jackson (not Rupert).

Despite the fact that the Court of Appeal said that they might well not have have reached the same conclusion as Mr Justice Tugendhat in the court below, they refused the claimant’s appeal against the judge’s ruling principally on the grounds that the Court of Appeal is not there to sit in the judge’s shoes. They pointed out that the judge had heard the arguments and seen the witnesses and that he had a broad discretion to decide how the case should be managed.

The case is interesting for its consideration of CPR Rule 31.7 standard disclosure and paragraph 2A of the Practice Direction to Part 31 dealing with electronic disclosure. It is worth noting the judge’s conclusions quoted with approval by the Court of Appeal:

The judge expressed his conclusions at paragraph 20 and 21:

I have to observe that it is a matter of great concern that the costs of this libel action should have reached the figures that they have. By reference to that figure, Mr Sherborne for the appellant is able to say that a sum of the order of £10,000 is hardly significant. Indeed, as I observed in the course of submissions, it may well be that the cost of this application exceed that figure, but that is not the right approach. On that basis, there would be little ground for attempting to limit costs in libel actions at all. Searches of back up tapes are not required in every case and are not to be encouraged as a general rule. Whether they are required or not must depend on the facts of each particular case. On any view, the total cost of this action illustrate the general public concern as to the cost of libel actions. Only about four jury actions per year are fought, and a roughly similar number tried by judge alone out of some 200 or more claims that are issued, or have been issued, in each of the most recent years. Those actions that are fought have given rise to great public concern as to their costs.

I accept that in an ideal world, the claimant should have disclosure of the e-mails sought but it is not an ideal world. In this case, it is a matter of speculation whether the search that he requests I order would produce anything relevant, and if it did, whether it would help the Claimant’s case or undermine it. There will undoubtedly be cases where retrieving and searching back up tapes will be a proportionate exercise in a libel action. But in this case, it seems to me, that the issues in the action will be most likely to be resolved on the contemporaneous documents that have been disclosed and the oral evidence of the Claimant and third Defendant, if the case gets that far. In my judgment, the claimant cannot in the present case show that there is a sufficient likelihood of retrieving any email that is both relevant and significant and on that basis, I dismiss this application

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OFT v British Airways

Smoking guns are unusual but it seems from a sparse report in Reuters [British Airways price fixing trial collapses, 10th May, 2010] that there may have been one here. The OFT had pursued a prosecution of four senior officials from BA alleging collusion with Virgin over price fixing. The authorities appear to have got it wrong again, doubtless at a cost to the taxpayer. They appear to have failed to disclose key documents to the defendants as a result of which the trial collapsed when the prosecution announced they would not be calling any evidence.

The facts are by no means clear but it seems that on the Friday before the collapse of the trial the prosecution produced some 70,000 emails one of which made it clear that Virgin had agreed to increase the fuel price surcharge on its tickets well before any contact on the subject had been made with BA. Collapse of prosecution case!

The emails had been in corrupted files which had been dismissed as irrelevant during the initial investigation but latterly it appeared that it was possible to restore the tapes but that the documents could not be disclosed in time for the trial to start as planned.

Why the decision to ignore the 70,000 emails was taken remains obscure but the result is an embarrassment for the OFT, although no one has yet been named and shamed or blamed for the fiasco!

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Deutsche Bank AG v Chang Tse Wen 2010 SGHC 125

www.singaporelawwatch.sg/remweb/legal/ln2/rss/judgment/11095.html

The fact that I had heard of this case is due solely to Chris Dale and a very switched on US lawyer, expert in the whole area of e-Data.

I can do no better than refer readers to the post on Chris’s e-disclosure information blog [Singapore e-Discovery judgment shows international commonality and active management, 7th May, 2010] but I include reference to the case in these notes only to show how truly international the subject of e-disclosure has become, certainly in the common law world.

[Update, 1st June, 2010]

Further thanks are due to Chris for posting a follow up piece on his blog [Comment on Singapore Deutsche AG judgment, 1st June, 2010] quoting a response from Allen & Overy’s Vince Neicho on this case.

With great respect to Vince, I heartily endorse what he says! The link to the full text is above but the main points can be summarised as follows:

  1. ESI is relevant not only to the really large cases and is now a mainstream concern. It is difficult to conceive that there are many cases where ESI need not be considered.
  2. In the absence of allegations of fraud or challenges to the authenticity of the documents, there is unlikely to be a need for a forensic collection. Each case should be considered on its merits.
  3. Where a party and its advisers are on incompatible email systems, it is not usually an answer to purchase the relevant licences because you will be unable to carry out the basic research processes required for a lawyer to review the documents without processing the ESI, a specialist task which probably needs to be carried out by an external expert or specialist in house expertise if it exists.
  4. This is more than “mere IT”. A professional will be able to offer more than that, which is part of the added value of instructing such an expert.

The moral must be, when in doubt, ask an (external) expert”.

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Elliott Group Ltd and Others v GECC (UK) and others [2010] EWHC 409 (TCC) Coulson J

www.bailii.org/ew/cases/EWHC/TCC/2010/409.html

This case was heard on 1st March 2010 by Mr Justice Coulson sitting in the TCC. He decided that it would require a very strong case for the trial to be adjourned merely because the claimants’ disclosure was a more extensive task than they had originally thought.

The facts of the case are not relevant to the outcome. It is sufficient to note that following a sale and purchase agreement by which the claimants bought various companies from the defendants, the claimants alleged a number of breaches of warranty in relation to the goods sold. In February 2010 they sought an adjournment of the trial fixed for July 2010.

The claimants applied for an adjournment of the trial on three grounds, one of which was the unexpected amount of e-disclosure by the claimants. Having analysed what disclosure there was and what needed to be done, the judge concluded that the exercise could be completed by the trial date although the time for disclosure would have to be extended.

He also said that there were two additional matters which supported his view that this was feasible and that there would need to be a very strong case to adjourn the trial merely because the amount of disclosure had been underestimated. These were the likely length of time the disclosure exercise would take and its knock on effect and the issue of prejudice.

The judge took the view that the exercise and its knock on effect would not render the trial date impossible and that no prejudice would be suffered by the defendants merely because the time for disclosure would be extended.

He commented on prejudice as follows:

there is a tendency automatically to equate delay with prejudice. That is not an equation which I accept………….

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Tchenguiz & Ors v Imerman (Rev 4) [2010] EWCA Civ 908 (29 July 2010)

www.bailii.org/ew/cases/EWCA/Civ/2010/908.html

This case involved two interlocutory appeals arising out of proceedings for ancillary relief in divorce proceedings. It is unusual for divorce proceedings to feature in a blog dedicated to Smart E-Discovery but the Court of Appeal summary of the background (at paragraphs 3-5) shows why the case is interesting. It is as follows:

3. Fearing that their brother in law would conceal his assets, one of Mrs Imerman’s two brothers, possibly with the help of others, accessed a server in an office which they shared with Mr Imerman and copied information and documents which Mr Imerman had stored there. From that material they printed out eleven files and handed them to their solicitor, Mr Zaiwalla, who arranged for a barrister to sift the documents for those in respect of which it was thought Mr Imerman could claim legal professional privilege, which resulted in seven files of documents. Mr Zaiwalla then passed those files on to Withers, the solicitors acting for Mrs Imerman in her divorce, who had already issued Form A, giving notice of Mrs Imerman’s intention to seek ancillary financial relief. Withers then sent copies of the seven files to the solicitors acting for Mr Imerman in the divorce proceedings.

4. In summary proceedings in the Queen’s Bench Division against the defendants who had gained access to Mr Imerman’s documents stored on the server, Eady J on 27 July 2009 restrained the defendants from communicating or disclosing to third parties (including Mrs Imerman and Withers) any information contained in the documents and from copying or using any of the documents or information contained therein. He also required the defendants to hand over all copies of the documents to Mr Imerman. The defendants appeal.

5. Mr Imerman sought the return of the seven files, and any copies made of them, and an order enjoining Mrs Imerman and Withers from using any of the information obtained therefrom. On 9 November 2009 Moylan J decided that the seven files should be handed back to Mr Imerman for the purpose of enabling him to remove any material for which he claimed privilege, but that Mr Imerman would then have to return the remainder of the seven files to Mrs Imerman for use by her in connection with the matrimonial proceedings. Mr Imerman appeals against that decision. Mrs Imerman cross-appeals against the decision, seeking (a) more control over the process by which Mr Imerman can assert privilege, and (b) a reversal of Moylan J’s refusal to restrain Mr Imerman from disposing of certain memory sticks

The precise amount of the documents in dispute is unclear but it seems to have amounted to between 250,000 and 2.5 million pages.

The issues in the case concerned the Data Protection Act, the Human Rights Convention, breach of confidence, possible tortious and criminal liability and the use which can be made in court of unlawfully obtained information and documents. There is discussion of Mareva (freezing) orders and Anton Piller (search and seize).In the end, the Court decided that Mr Imerman should have the documents wrongfully obtained returned to his solicitors and that Mrs Imerman should not be allowed to make any use of the documents or their contents.

There was no issue on e-disclosure as such but the case underlines once again that how lawyers and their clients deal with the documents, whether electronic or paper, is often the most important aspect of any case. How electronic documents are collected and handled is now mainstream and the issues raised cannot be avoided in future. Preparation remains the most expensive item in a bill of costs in the majority of cases. It might have been cheaper in this case if the solicitors who sifted through the material had processed them electronically instead of printing them out and going through them manually, but nothing turned on that aspect (unless there is to be an argument on costs in due course!)

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Marius Rybak and Others v Langbar International Ltd (2010) EWHC 2015 (CH)

www.bailii.org/ew/cases/EWHC/Ch/2010/2015.html

This case is interesting because it deals with what happens if a party deliberately deletes material which should be disclosed.

There had been a series of actions between the parties including a trial in 2007 which lasted 56 days before Mr Justice Blackburne. That action resulted in a Tomlin order setting out detailed terms of settlement under which the Rybaks were to make payments to Langbar in relation to the sale of a flat in Monaco. A dispute arose as to whether the parties had complied with the terms of settlement and there were allegations by Langbar that they had been induced by misrepresentation to enter into a supplemental agreement varying the terms of settlement.

At paragraph 34 of his judgment Mr Justice Morgan said this in relation to disclosure:

Mr Ramsden, appearing for the Rybaks, does not pretend that the Rybaks have conducted disclosure in a satisfactory way. I have been given the disclosure statements. There were, I think, seven disclosure statements prepared by the Rybaks. The first is dated 16th December 2009 and the most recent is dated 24th June 2010. So in a period of six months or so it has been necessary for the Rybaks to serve seven disclosure statements. Mr Peto has examined these disclosure statements in the course of his submissions. He has drawn my attention to the lengthy correspondence between solicitors, where one sees solicitors for Langbar pressing again and again for gaps in disclosure to be made good, and various explanations and reasons put forward by the Rybaks. It seems to me, without going into the detail of those matters, that it is really very clear that the Rybaks have withheld documents until they could withhold them no longer, or until indeed they were extracted from them pursuant to the orders to which I will shortly refer. My conclusion is that the Rybaks, who after all are claimants in these proceedings, have throughout wished to conduct these proceedings and have them determined on the basis of the documents they chose to put forward and not on the basis of any documents that might be adverse to their case. In relation to the adverse documents, the Rybaks have taken the view that they will do everything to resist the handing over of those documents to be used as material against them.

The Rybaks had also failed to comply with an unless order that an IT expert be appointed and the court ultimately appointed the expert to advise. There was also much discussion about CleanMyMac and Erase Free Space functions which are programmes to allow the overwriting of data in deleted files.

In broad terms the judge found against the assertions by Mr Rybak that he had not used the overwriting functions and/or that there were no deleted files in any case and found that Mr Rybak was in breach of the terms of the unless order. The judge also decided that as the Rybaks had deliberately breached the terms of the order they should not be granted relief from its terms and at paragraph 76 of his judgment sent out this warning to litigants:

I also say that I should send a very clear message to Mr Rybak and anyone else who considers behaving as he has done. The court will not assist a litigant in destroying data and will not assist a litigant to fight a case on the limited material that that litigant chooses to make available, suppressing other material which would be material to the decision of the court.

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McMillen v Hummingbird Speedway Inc (No 113 of 2010 CP Jefferson Sept 9th 2010)

www.scribd.com/doc/40011087/McMillen-v-Hummingbird-Speedway-Inc-Pa-Ct-of-Common-Pleas-Sept-9-2010

This Pennsylvania case involved a road traffic accident in which the Plaintiff alleged he suffered injury. It was a rear end shunt so presumably there was no issue on liability but the case gave rise to an interesting dispute over discovery.

I have not actually seen the judgment of President Judge Foradora but have seen various reports about the case, including the account posted on the K & L Gates blog site – Court Orders Production of Plaintiff’s User Names and Passwords for Social Network Accounts, Electronic Discovery Law, October 21st 2010.

The defendant requested disclosure of the plaintiff’s passwords and log ins of hs Facebook and MySpace networking sites. The plaintiff refused on the grounds that they were private.

The court decided that the information was not confidential or subject to privilege and ordered production of the information within 15 days and ordered that the plaintiff should not take steps to delete or alter the existing information on his networking sites.

The judge went on to say that merely by using the sites the user was expressly accepting that there was no confidentiality and that users expressly contemplated that the sites were open to others to see. As the information might prove to be pertinent to the truth or falsity of the claim by the Plaintiff and his alleged injuries, the judge ordered disclosure.

Update: A court in Pennsylvania has since followed this judgement in Zimmermann v Weis:

Zimmerman v. Weis Markets, Inc., No. CV-09-1535, 2011 WL 2065410 (Pa. Comm. Pl. May 19, 2011)

See commentary by Charles Holloway: I told you so, 7th July, 2011

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Boris Abramovich Berezovsky v Roman Arkadievich Abramovich [2010 EWHC 2010(COMM)

www.bailii.org/ew/cases/EWHC/Comm/2010/2010.html

B applied for an order for enhanced disclosure pursuant to CPR 31.5 (1). The making of a “Peruvian Guano” order was resisted by A. There was no evidence filed in support of the application and consequently none filed in answer. The Court had no information as to the scope or ambit of the documents to be searched, the nature of the searches which would have to be carried out or the difficulties the parties might face if ordered to conduct search a search.

In support of the application for the order, Counsel for B pointed to the sums at issue in the case, in excess of $3.5 billion, and the serious nature of the allegations made by the parties against each other including an allegation of intimidation in relation to the sale of certain assets. Counsel argued that the case fell within the definition of a substantial case by Lord Justice Jackson(see the draft new CPR 31.5A proposed in paragraphs 3.11-3.13 of his Review of Civil Litigation Costs). There was a lack of contemporaneous records, key witnesses had died, the business structures employed by the parties were complex and much time had elapsed since the agreements in dispute and the intimidation alleged. There would be a substantial duplication of cost and effort if the Court did not order enhanced disclosure at this stage, relying instead on standard disclosure.

On behalf of A Counsel rejected these arguments (see paragraph 11 of the judgment) and argued that to make such an order was not proportionate.

The Judge refused to make the order without ruling out the possibility that it may be appropriate to make such an order at a later stage.

It is worth setting out her reasons in full (paragraph 12 of the judgment):

I do not consider it appropriate at this stage to make the order for enhanced disclosure which the Claimant seeks, and accordingly I refuse the application. My reasons, shortly stated, are as follows:

i) I accept Mr. Rabinowitz's submission that, given the seriousness and the nature of the allegations involved, the amount at stake, the reputational issues on both sides, and the allegations of dishonesty that are being made (even though not currently pleaded, or necessary elements of the claims made), this is the type of case where it might well be appropriate at some future stage to make an order for enhanced disclosure. The case certainly falls within the definition of "substantial case", as set out in Jackson LJ's proposed draft Practice Direction.

ii) However, given the current state of play, I consider that it would be wholly inappropriate to make such an order at the present time. As of today, standard disclosure has not yet taken place. The parties do not know what documents will be disclosed as a result of that process. The court has no material before it adequately to inform it what searches would have to be made, of what categories or classes of document, to enable documents to be disclosed which might lead to a train of enquiry. In particular, there is no workable mechanism for how such a search could be linked to particular issues or classes of documents.

iii) To take an example that was raised in the course of argument: if such an order were made, would the Defendant and his solicitors have to search and disclose every note of meetings between the Defendant and senior Russian politicians, even though they do not refer to the Claimant or to any of the other relevant participants in the litigation, and do not otherwise fall within the criteria of standard disclosure, simply on the grounds that they might reasonably lead to a train of enquiry as to the closeness of the Defendant's relationship with senior Russian politicians or his role in the Russian political scene during some part of the relevant period? There might be a vast quantity of such documents, which, theoretically might fall within the "train of enquiry" catchment.

iv) In my judgment, if any order for enhanced disclosure is to be applied for, the applications should be focussed, directed at an identifiable category or class of document and linked to specific issues, not broadly aimed at the whole gamut of issues as presently is the case with the Claimant's application. Moreover some explanation should be provided as to the nature of the enquiry envisaged.
v) The burden imposed on a party to conduct wide-ranging searches for documents which might reasonably be expected to lead to an enquiry does not simply have the consequence of imposing an increased costs burden on that party. The task is an onerous one not only because of the difficulty which may exist in identifying or defining the categories of document that may come within the ambit of such an order, and thus will have to be reviewed, but also because the decision-maker has to apply the relevant test to each document "Is it reasonable to suppose that this particular documents might lead to or might advance a train of enquiry?"

vi) Moreover, if a document is not searched for or disclosed when it should have been, the consequences for a party may be serious, as he may be accused of deliberately withholding it. I take the view that if such an order is to be made in this case, then the relevant party who is being asked to conduct disclosure on such a basis, and the court before whom the application is being made, should have an appropriately clear idea as to: what documents are likely to fall within the scope of the order; to what specific issues the relevant documents to be searched on the enhanced basis relate; and what the relevant "trains of inquiry" might be. On the basis of the information presently before me, I have no way whatsoever of making an informed decision as to such matters.

vii) Moreover, I see no reason why the current timetable would not permit a further application to be made for enhanced disclosure at a later stage, once standard disclosure has taken place. By then, the parties will have a far better picture of what categories of document have been disclosed and what documents have not, and what remaining categories of documents (if any) they respectively contend should be searched and disclosed on the enhanced basis.

viii) Nor am I persuaded by Mr. Rabinowitz's argument that this will give rise to a duplication of effort on the ground that the same documents will have to be revisited. That may be so to a certain extent, but I suspect the more likely consequence, if any order were to be made at a future date, is that further categories of documents would have to be searched before further disclosure could be made.

Setting out your workings is essential to an understanding of the issues covered and the decisions reached in relation to disclosure, whether electronic or otherwise. Not to provide any evidence in support of the application meant that B was always on the back foot but the case illustrates that a strategy for disclosure is crucial whatever the size of the case and the seriousness of the allegations.

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Sanae Achar v Sci-Gen Limited [2011] SGHC 87

http://www.singaporelawwatch.sg/remweb/legal/ln2/rss/judgment/12361.html?utm_source=web%20subscription&utm_medium=web&title=Sanae%20Achar%20v%20Sci-Gen%20Ltd%20[2011]%20SGHC%2087

This case concerned an appeal by the claimant against an order for specific discovery in an employment case. Singapore uses the word “discovery” rather than the English “disclosure” and interestingly still has Order 24. (For those of you who do not remember the world before the CPR, Order 24 was the Rule of the Supreme Court which dealt with discovery of documents. It is good to see a familiar friend!)

There are two main reasons for mentioning a Singapore case here. Firstly, the rules relating to discovery/disclosure are very similar to our own. Singapore is one of those jurisdictions which, apart from growing out of the English system, has clearly followed developments around the common law world. Secondly, the judgment in this case makes reference to three of the leading English cases, namely Goodale v Ministry of Justice in para 14 and the cases of Nichia v Argos and Digicel v Cable and Wireless in para 23.

The appellant lost and was ordered to give discovery and had to pay the costs.

There are two other interesting parts of the judgment: in para 10, there is a list of what is included in the phrase “electronically stored documents” (amended by the developing case law)and in paras 13 and 14 the judge comments on the purposes of discovery and the use which should be made of technology, acknowledging the part played by the English PD Part 31 B on disclosure of electronic documents.

I reproduce both here:

Para 10: The phrase “electronically stored documents” is not defined in the e-Discovery PD. In my view, it is not necessary to define this term as it should be given its natural meaning as used in our modern day context. On this approach, this term will include a wide range of electronic documents, eg, word processor documents, spreadsheets, presentation slides, and image files. Case law has also included within the scope of “documents” electronically stored documents like:

(a)
Emails – see PSA Corp Ltd v Korea Exchange Bank [2002] 1 SLR(R) 871, Trek Technology (Singapore) Pte Ltd v FE Global Electronics Pte Ltd and others and another suit [2003] 3 SLR(R) 685, K Solutions Pte Ltd v National University of Singapore [2009] 4 SLR(R) 254, and Fermin Aldabe v Standard Chartered Bank [2009] SGHC 194;

(b)
Databases – see Sumitomo Corpn v Credit Lyonnais Rouse Ltd [2002] 1 WLR 479 and Derby & Co Ltd And Others v Weldon And Others (No 9) [1991] 1 WLR 652;

(c)
Backup copies – see RecordTV Pte Ltd v MediaCorp TV Singapore Pte Ltd and others [2010] 2 SLR 152 (“Record TV”);

(d)
Sound recordings stored as Moving Picture Experts Group 1, Audio Layer 3 (“MP3”) files – see Sony Music Entertainment (Australia) Limited v University of Tasmania [2003] FCA 532;

(e)
Video recordings – see RecordTV; and

(f)
Storage media (eg CD ROM and tapes) and recording devices (eg hard disks) – see Megastar Entertainment Pte Ltd and another v Odex Pte Ltd [2005] 3 SLR(R) 91 and Alliance Management SA v Pendleton Lane P and another and another suit [2008] 4 SLR(R) 1.

Paras 13 and 14:

13 With technology fuelling an unprecedented explosion of the volume of discoverable documents and the ease of their duplication, it is not surprising that the traditional manner in which discovery has been carried out is proving increasingly inefficient in achieving the purposes for which the discovery process was developed. Discovery was originally an equitable remedy premised on the idea that it was unconscionable for a party to conceal evidence material to a fair conclusion. Its aim was that of enabling parties to acquire information which is material to their case but in the possession, power or custody of their opponents. Discovery was directed towards the just and fair adjudication of an action as it ensured that all material and relevant facts were placed before the court for its consideration. These purposes remain relevant as ever.

14 One way to cope with the burgeoning volume of discoverable documents is to rely on technology itself. Technology has thrown up countless tools which make editing, copying, reviewing and searching through the textual content of documents considerably less cumbersome than before. For example, parties need not manually trawl through heaps of printed documents in order to identify relevant documents and weed out irrelevant ones. Running simple keyword searches using easy-to-use desktop search engines would suffice. It is also easier to manage and organise electronically stored documents, especially where printed copies of such documents run into tomes and cartons. The e-Discovery PD recognises the tremendous potential of technology in modernising the discovery process. Thus, it encourages the exchange and supply of copies of discoverable electronic documents in soft copy by creating a framework for the inspection and discovery of electronically stored documents within boundaries established by existing legal principles. In supplementing the traditional tests for whether applications for discovery of documents should be granted (the applicable tests remain that of relevancy and necessity either for the fair disposal of the matter or for saving costs) vis-a-vis electronically stored documents, the e-Discovery PD identifies specific factors which are to be considered (see [10] above). These factors were principally adapted from the UK Practice Direction Part 31B on “Disclosure of Electronic Documents”. At the same time, the e-Discovery PD also acknowledges that the costs of e-discovery could potentially be disproportionate to the value of the claims and the significance of the issues in dispute. Accordingly, the e-Discovery PD also introduced mechanisms in anticipation of this problem. For instance, the e-Discovery PD contemplates the conduct of general discovery in stages – see para 43B of the e-Discovery PD and also Goodale & Ors v The Ministry of Justice & Ors [2010] EWHC B40 (QB), at [22]–[23]. It also sets out rules which require limits to be imposed on the scope of requests for discovery by keyword searches. The factors listed at para 43D of the e-Discovery PD were also introduced to keep costs within reasonable limits.

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Mumtaz Properties Ltd, Re [2011] EWCA Civ 610 (24 May 2011)

www.bailii.org/ew/cases/EWCA/Civ/2011/610.html

This was an appeal from an order made by His Honour Judge Simon Brown QC sitting as a High Court Judge in the Leeds District Registry. Although not strictly a case about e-disclosure it is interesting because the judge is one of the leading proponents of the proper use of e-disclosure in litigation (he was the judge in the seminal case of Earles v Barclays Bank, see above). The judge also has some interesting things to say about evidence and in particular the value of contemporaneous written evidence.

The case concerned directors’ loan accounts and who was liable for them. The facts are of no particular interest to the e-disclosure practitioner. Suffice to say that the Court of Appeal upheld Simon Brown’s judgment.

Where the case is of note is in relation to the weight which courts should place on the contemporaneous written word as opposed to the recollections of witnesses at a later stage when asked to give oral evidence.

Lady Justice Arden said this at para 11 of the judgment:

By the end of the judgment, it is clear that what has impressed the judge most in his task of fact-finding was the absence, rather than the presence, of contemporary documentation or other independent oral evidence to confirm the oral evidence of the respondents to the proceedings.

And at para 14:

In my judgment, contemporaneous written documentation is of the very greatest importance in assessing credibility. Moreover, it can be significant not only where it is present and the oral evidence can then be checked against it. It can also be significant if written documentation is absent. For instance, if the judge is satisfied that certain contemporaneous documentation is likely to have existed were the oral evidence correct, and that the party adducing oral evidence is responsible for its non-production, then the documentation may be conspicuous by its absence and the judge may be able to draw inferences from its absence.

While this case appears to have turned on the fact that there was no earlier correspondence before the court, it could just as well be the case that the existence of earlier contemporaneous documents is crucial.

This is relevant to e-dicslosure practitioners because it goes to the heart of the reasonable search which solicitors and clients are bound to make under the rules in the CPR.

If such documents exist and it is reasonable to search for them they should be collected and reviewed. They may be crucial. They are almost certainly likely to carry more credibility than later oral testimony and with modern e-disclosure tools should be readily accessible.

Of course, if they do not exist (as in this case) it may well be that that fact alone is enough to make the judge wary of the oral evidence he hears.

The only way to find out is to search for the documents at the outset!

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Omni Laboratories Inc v Eden Enery Limited [2011] EWHC 2169

www.bailii.org/ew/cases/EWHC/TCC/2011/2169.html

How appropriate/proportionate is it to incur costs of £47000 in a one hour application for specific disclosure?

Akenhead J thought it was a “very large sum.”

This was a last minute application for specific disclosure made at a PTR which had been fixed before the summer vacation specifically to allow the parties to settle certain issues and prepare for the trial in November 20111. The PTR had a time estimate of one hour. At the last moment, the defendants made an application to be heard at the same time as the PTR for specific disclosure of a variety of documents which they said the claimants should produce. The application was backed up by a bundle of documents running to 380 pages and contained a draft order, a witness statement which ran to 51 paragraphs and hundreds of pages of documents, much of it detailed correspondence between the parties, “three quarters of which has not been referred to in argument.”

One aspect of the case threw up 38000 documents which had been culled down by a deduplication exercise undertaken by independent electronic disclosure experts and the defendants then argued that the resulting 20000 (70-100 Lever Arch files) be manually reviewed by the claimants. The judge ruled that such an exercise would be wholly disproportionate.

There were other issues over a hard drive and other documents but there are two interesting aspects to the case. The first is that the parties appear to have become entangled in a series of arguments about disclosability of certain types of documents as to which the best that could be said was that the defendants might be able to make some capital about their unavailability at trial! Hardly something on which to spend £47000!

Secondly, the judge was unimpressed by the costs of the application. He said at para 27:

I should add one final thing; the defendant’s application is supported by a statement of costs which runs to £47,000 and is exclusive of VAT. This was for what was supposed to be for a one hour application and, of course, I do appreciate that a lot of work may well have had to go into the preparation of the applications that have been made. Again, I would like to encourage practitioners to seek to keep costs at a proportionate level, not only just for a pre-trial review where the costs usually are proportionate, but also for this sort of application. At least on its face, £47,000 for a disclosure application and the redaction or striking out of some parts of witness statements seems to be a very large sum of money for a one hour application.

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Whitham v Club 24 Limited t/a Ventura

Blog article: You tweet if you want to... Judgement: Whitham v Club 24 Limited T/A Ventura [PDF]

Employment Tribunal, Leeds, 24th May, 2011. Judge Colin Grazin

This case is interesting because it is possibly the first case in the UK where the tribunal has had to consider material which the claimant posted on Facebook.

There have been a number of such cases in the USA and what happens there often finds its way over here in due course. Cases such as McMillen v Hummingbird Speedway, Zimmerman v Weis Markets and Lester v Allied Concrete Company and Crispin v Audigier, dealt with a range of issues but the most compelling is the willingness of the courts in the United States to order discovery of what hitherto may have been perceived in some quarters to have been private material. What these cases appear to show is that merely because information is posted on a social media site with all the relevant privacy settings does not mean that in appropriate circumstances the court will not order disclosure of log ins and passwords to enable another party to view what has been written. This accords with basis disclosure principles around mandatory disclosure of documents which pertain to the case in question and the lesson must be, do not post what you do not want others to see; your privacy settings may not be a sufficient protection.

There is a link to the Whitham decision above. Briefly, the claimant in an action for unfair dismissal, found that the Tribunal had to consider comments posted on her Facebook site. The dispute arose over something which occurred wholly outside the work environment although the parties accepted that it related to the claimant’s work. The claimant had a number of Facebook friends and had so arranged her settings that only her friends (and not other members of the public) could see her posts. Two of the claimant’s “friends” who were managers at the firm where she worked saw what she had written about some of the people with whom she had to deal at work. They reported their concerns to another manager who then viewed the material, decided it was inappropriate and informed another colleague as a result of which the claimant was the subject of a disciplinary investigation which led to her dismissal and the claim that the dismissal was unfair. (It was more complicated than that but the picture is clear for present purposes and the full decision can be read above).

As it happens and on the facts of the case, the tribunal concluded that she had been unfairly dismissed. The interest lies in the publicity given to material which the claimant may well have thought was strictly private and available only to those to whom she had given the requisite permissions via her privacy settings.

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