Court examines conditions for granting imaging orders

In a ruling that has only recently been made public, the High Court said that a failure by one party to litigation to deal with disclosure obligations in a satisfactory manner does not automatically entitle parties on the other side to an “intrusive” imaging order. Other “aggravating factors” must be shown to apply to justify the granting of such an order.

Imaging orders essentially provide for a screenshot to be taken of electronic data held by the individual or organisation against whom the order is made. The subject of an imaging order from the courts in England and Wales must give immediate access to electronic storage devices in scope of the order to an independent computer specialist, to enable them to copy the contents. The goal of imaging orders is to preserve evidence at risk of being wiped or destroyed by the responding party, not to provide early disclosure or permit the claimant to build their case.

In this case, entities acting on behalf of liquidators of Cambridge Analytica applied for an imaging order against Alexander Nix, a former chief executive of the company. The order was sought in the context of claims being advanced on behalf of the liquidators.

The application for an imaging order was made after doubts emerged as to whether Nix had met his disclosure obligations relating to the proceedings. Nix and his solicitors insisted that they had complied with their obligations. However, Nix also inferred that he retained further data, which the applicants considered might include potential evidence.

Considering the application, His Honour Judge Pelling KC (HHJ Pelling) acknowledged that imaging orders are intrusive, because it is possible that respondents’ “private and irrelevant information will be downloaded as part and parcel of the exercise”. As a result, he considered that is not automatically the case that there will be justification for granting imaging orders just because a party may not have met their disclosure obligations. He said the presence of other “aggravating factors” is necessary.

In this case, HHJ Pelling identified two aggravating factors. First, he said that there was “strong evidence” that the original disclosure exercise was not carried out properly, citing evidence that all or some of the data from Nix’s mobile phones, including WhatsApp messages, had not been disclosed in line with the court’s disclosure order.

HHJ Pelling also considered that it could also be inferred from the evidence "that there is at least a realistic risk that documents will be concealed or destroyed”, highlighting how Nix had previously unilaterally decided to wipe data from a company laptop before returning the device to the insolvency practitioners who were operating the business at the time. Nix claimed he did this to protect against disclosure of legally privileged information, but HHJ Pelling commented that “someone dealing properly with the material would have approached his solicitor for the purpose of obtaining advice as to how the machine was to be dealt with”.

After assessing case law relevant to the issuing of orders while cases are ongoing, HHJ Pelling outlined that there were three questions that needed to be satisfied in the context of the application for the imaging order against Nix: whether there was clear evidence that he had incriminating documents in his possession; whether there was a real possibility that he might destroy such material before any inter parties hearing could take place; and whether the relief sought was proportionate to its legitimate aims. On all three questions, HHJ Pelling considered that the conditions had been satisfied. He added that sufficient safeguards would be put in place to prevent the data that could be disclosed from being used for “a collateral purpose”.

HHJ Pelling added: “I am entirely satisfied that [Nix] is protected in the circumstances of this case... That is to say that the claimants and their solicitors will not get access to the information in any form ahead of the return date. The information will be held by independent computer specialists over until the return date and, ultimately, if the order that I am proposing to make is upheld on the return date, all that will happen is a search will be carried out in using the parameters identified by the parties in this litigation to reveal disclosable documents which will mean that anything which is private, confidential, privileged, or immaterial will simply not be revealed as part of the disclosure search exercise.”

Michael Pulford of Pinsent Masons said: “The role of supervising solicitors in ensuring that imaging and search orders are properly complied with should not be understated. Their role is essential in ensuring that disclosable data which could otherwise be concealed is disclosed, while also ensuring that data owners are not unduly prejudiced in legal proceedings, or more widely, through the disclosure of irrelevant, privileged or confidential data.”

“If the number of imaging orders being granted by the High Court is to increase as an alternative to search orders which are generally harder to obtain, I would consider it prudent for parties to litigation to think proactively about which firm they would seek to instruct in the event that an imaging order was to be ordered by the court. This would allow the relevant parties to ensure that the appropriate expertise is available within the timeframes ordered,” he said.

Kate Henry, also of Pinsent Masons, added: “This judgment is an example of the Commercial Court applying a less stringent test for granting an imaging order than would be required to obtain a search order. While it is likely, as was the case here, that aggravating factors will need to be shown over and above a party simply failing to discharge its disclosure obligations appropriately in order to obtain an imaging order, judgments such as this may lead to an increase in the number of applications for imaging orders being sought, particularly as a less draconian alternative to a search order. This risk should be proactively addressed by firms and clients alike to ensure that tight timescales for actioning court orders can be met by experienced pre-vetted supervising solicitor teams.”

The High Court has since issued a judgment in respect of the trial of these claims.