What can be done with documents obtained by a search order? Search orders are intrusive orders, but they are often obtained under pressure and at short notice, which means that the procedural safeguards are paramount. Having developed from 1974 in the “analogue era”, to borrow Arnold LJ’s phrase, the fact that they are now being deployed in a digital environment raises the question whether the safeguards are out of date.
The judgment of the Court of Appeal in TBD (Owen Holland) Ltd v Simons and others draws attention to the implications of digitisation for search orders, and, in doing so, clarifies the true nature and function of a search orders as distinct from disclosure orders. It also discusses and sets out important guidance in respect of the increasingly common “imaging orders” to be followed until a standard form of imaging order is promulgated.
Facts and procedural history
The search order in this case, granted on 7 November 2018 (the Order), provided for the delivery up of articles and documents in both:
- Standard form (in respect of physical documents), as set out in paragraph 16 of the example search order annexed to PD 25A.
- Non-standard form, amending and adding to the standard provision for digitised documents (paragraph 17) by permitting the search party to take “forensic images of the data”, which are essentially copies of the complete storage media, on any computer, laptop, mobile device, or hard drive for subsequent technical analysis.
The applicant then proposed to the respondents a keyword search, canvassing a proposed list of keywords later described by the Court of Appeal as “extraordinary.” Despite no agreement having been reached, the applicant unilaterally applied the keyword search to the imaged material on 19 February 2019. The attempts to filter out privileged material and/or personal documents failed. The applicant then used the results of the search to contact third parties.
Several of the respondents then applied to strike out the claim on grounds that the applicant had breached the terms of the search order, and subsequently appealed Marcus Smith J’s decision to award lesser relief notwithstanding finding the order had been breached.
Arnold LJ delivered the leading judgment on appeal, with which Newey and David Richards agreed.
Search orders, orders for disclosure, and imaging orders
During the course of a thorough review of the search order jurisdiction, Arnold LJ noted (at paragraph 143) that, by contrast, orders for disclosure are “governed by distinct principles,” in particular, Bankers Trust Co v Shapira and Norwich Pharmacal Co v Customs and Excise Commissioners. He continued that “a claimant may be able to justify obtaining both types of order, and the court may be willing to make both types of order, but they are both conceptually and practically distinct.”
On this distinction, Arnold LJ set out three fundamental points (at paragraph 175):
“First, a search order is to preserve evidence … in order to prevent the defendant from altering, destroying, or hiding such evidence… if given notice. The purpose of inspecting documents … is to identify documents which should be preserved. Secondly, the facts that justify a search order … may also … justify the making of without notice orders for the disclosure and inspection of documents and/or the provision of information … but nevertheless the two types of orders are distinct. Thirdly [both types of order] must contain proper [and different] safeguards for the respondent, and those safeguards must be respected.”
Adding to these fundamental orders is “imaging”, a process by which computer experts can take copies, known as “images”, of the complete contents of the storage media associated with or incorporated in computers. Imaging has been possible for the past decade, and as Arnold LJ noted at paragraph 178, in the present context, has both advantages and disadvantages:
“The key advantages are that (i) it is a relatively non-intrusive process which does not involve any removal of documents and (ii) it enables all digital evidence to be preserved for subsequent analysis. The key disadvantage is that imaging is, by its very nature, incapable of discrimination between information relevant to the issues in the proceedings and information that is irrelevant, or between business information and personal information, or between information that is subject to legal professional privilege and information that is not. Thus imaging can only ever be a preservation step, and it must be followed by proper consideration of the issues of disclosure and inspection of the documents preserved by the imaging process.”
Preservation of evidence, and therefore imaging, is in line with the true function of a search order. A degree of inspection may be permitted out of necessity, such as where physical documents are involved or digital documents are searched on a file-by-file basis, for the purpose of identifying whether a document should be preserved. Paragraph 6 of the standard form search order, therefore, permits the search party to “inspect… all the documents and articles which are listed…” (emphasis added).
Arnold LJ, however, made clear (at paragraph 199) that this power to inspect is qualified in two respects:
“First, it only authorises inspection during the course of the search, and not subsequently. Secondly, it only authorises inspection for the purposes of the search, that is to say, identifying listed items, copying them where necessary and delivering them into the safekeeping of [the applicant’s] solicitors. “Safekeeping” means, in my judgment, just that: keeping the listed items safe. Safekeeping does not require or permit inspection of documents.”
Given the extent to which technology and business have been transformed by digitisation, imaging orders have increasingly been sought by claimants alongside traditional search orders. Arnold LJ considered (at paragraph 179) that the availability of imaging has “important consequences” for search orders:
“…The first is that, if what is needed is a remedy to preserve evidence in order to ensure that it cannot be altered, destroyed or hidden, then in many cases an order requiring the respondent to permit imaging of its digital devices and cloud storage (“an imaging order”) will be the most effective means of achieving that objective. The second, which follows from the first, is that, if an imaging order is made, then that may well make a traditional search order unnecessary, or at least may enable the scope of the search order to be significantly restricted e.g. to articles as opposed to documents.”
Based on his experience that such consequences “have frequently been disregarded,” Arnold LJ therefore gave important guidance on imaging orders (at paragraphs 180 to 181):
- Any court confronted with an application for both an imaging and traditional search order should first consider whether to grant an imaging order.
- If the court is prepared to grant an imaging order, then it should be presumed, unless the contrary is shown, that a traditional search order is unnecessary. Even if the court is prepared to grant a search order at all, careful consideration should be given as to the scope of the order, having regard to the imaging order.
- Where an imaging order is made, it should be obvious that appropriate safeguards are required for the protection of respondents. Experience shows, however, that applicants and courts do not always give proper consideration to the safeguards that should be provided.
The order gave Arnold LJ concerns because it combined a traditional search order and imaging order without considering whether the former was necessary in light of the latter, and because it permitted the applicant to analyse imagines without any safeguards. At paragraph 189, he highlighted a comment of Mann J, that a search order was not intended to give an applicant an “early … do-it-yourself … exercise which would not normally be done as part of standard disclosure.”
The case highlighted, he found, the “urgent need” for the Civil Procedure Rule Committee to promulgate a standard form for imaging orders.
Practitioners should note the following takeaway points from the judgment.
Firstly, imaging orders serve a preservation function, permitting inspection only in support of that function. Imaging orders are likewise granted to serve a preservation, not disclosure, function.
Secondly, disclosure orders are conceptually and practically distinct from both, even though cases may merit the grant of preservation and disclosure orders.
Thirdly, until a standard form imaging order is produced, imaging orders ought to contain proper safeguards.
Finally, applicants and courts dealing with search and imaging orders ought always to consider whether a traditional search order is necessary where an imaging order has been granted. It is presumed not to be.