This piece by the team at DLA Piper talk about imaging orders being one of the most draconian tools in the English court’s armoury. A respondent to such an order can be required to hand over a complete mirror image of all of their data (regardless of relevance, privilege and confidentiality) to their opponent in litigation. In recent cases, this has also involved handing over login credentials to cloud storage services.
When reading this piece, it made me think of some of the interesting cases we have worked on here at A&M. I have detailed one such case below for background…
As a result of a bankruptcy judgment our client was granted with rights to sue and obtain an assignment of property from an individual who was declared bankrupt in a foreign jurisdiction. After a lengthy bankruptcy proceeding, this individual now resides within the UK and despite being declared bankrupt appears to be conducting business and leading a lifestyle contrary to such. To further act on the rights granted in the foreign jurisdiction, which were also recognised in the UK, our client sought to conduct a search of premises belonging to the declared bankrupt individual during the Covid-19 pandemic, while strict measures were implemented throughout the UK.
The granting of this search order was significant within the English High Court as it one of the first issued that focussed on the scope and limitations of property searches, including residential premises during Covid-19.
Our team was required to complete two rounds of covid testing across the search team, with the last test being within 24 hours of executing the order. We also needed to be briefed by a PPE expert on how to wear and dispose of PPE equipment. The Order permitted the search to be carried out across from two premises, the individual’s family residence and an office site. It was imperative that all was completed within a manner that ensured the safety of all involved.
The end result was that in excess of fifty data sources/devices were identified/seized and subsequently imaged. Extensive analysis was conducted of the data sources collected to identify other data sources that may require collection and identified data sources have been processed and made available for review in Relativity by various parties.
This matter has been recognised as an example of the commitment by the English courts to grant measures like search orders, with modifications to scope, duration and safety requirements despite present lockdowns and social distancing guidelines.
If you’d like to know more about the technical aspects of search orders then please reach out…
Imaging orders require a party to permit a forensic computer expert appointed by their opponent to make a complete copy (“image”) of the contents of storage media in or associated with computers, smartphones and cloud storage. The basic rule is that the image is then retained by the forensic computer expert, and not searched or inspected by anyone, until the parties return to court to determine how disclosure should proceed. The focus of the order is the preservation of disclosable documents to protect against the perceived risk that such documents will be prematurely disposed of or destroyed.