This is certainly an interesting article by the team at Womble Bond Dickinson. Patrick Cantrill, James Love and Rose Smalley talk about imaging orders and where things have gone astray in a notable case.
We often get involved in these types of order. It’s important to make sure that the orders are well defined and that the forensic technology expert is engaged at an early stage to deal with the technical nuances and their interpretation. If they’re not, there can often be misunderstandings and confusion sadly.
The authors include some very sensible lessons at the end of the article which I agree with and summarised here:
- There must be a balance between interests of the parties. The key is to make sure decisions and processes are well defined and explained;
- Safeguards must be included. We generally look to hold the images, or the supervising solicitor would, then once an inspection methodology has been agreed, it is important that it is followed and there is a full audit trail available. It’s also equally important to have technical input to ensure the process does not have any ambiguities and is efficient;
- Engagement by all parties is required to ensure that the materials are appropriately handled.
To read more about the case mentioned in this piece, feel free to look at this link: http://www.bailii.firedrake.org/ew/cases/EWCA/Civ/2020/1182.html
With advances in forensic tools, it has become increasingly common for courts to grant imaging orders (in support of search orders) for the quick and comprehensive preservation of electronically stored data on hard drives, laptops, etc. An advantage of imaging orders is that they allow the search process to be far less intrusive and disruptive for the business/premises that are being searched. On the other hand, a disadvantage is that the imaging process does not discriminate between documents that pertain to the issues of the proceedings and are covered by the search orders from documents that are irrelevant and/or privileged.