SEARCH ORDERS IN THE DIGITAL ERA: TBD (OWEN HOLLAND) LTD v SIMONS & ORS [2020] EWCA Civ 1182
Search orders, also commonly referred to as Anton Piller orders, are one of the most powerful, but also draconian, tools available to a party. Courts have been wary of the potential for misuse of such orders, and in the recent England and Wales Court of Appeal (“EWCA”) decision of TBD (Owen Holland) Ltd v Simons & ors [2020] EWCA Civ 1182 (“TBD v Simons”), Arnold LJ (with whom Newey LJ and David Richards LJ agreed) made some important comments on the use of search orders in the digital era.
Focus not on the facts. For the purposes of this short update, we will focus on the statements made by Arnold LJ that are of general application rather than on the facts of the case.
However, the case of TBD v Simons is an extraordinary one, as can be seen from the following excerpt:
“194. Although it is not in issue before us, I wish to record that I have considerable concerns as to the appropriateness of the Search Order. This is for two reasons. The first is that the Search Order combined a traditional search order with an imaging order. Neither TBD's representatives nor the court appear to have considered whether the search order was necessary if an imaging order was made. Secondly, the imaging order did not merely provide for images to be made, but also for those images to be analysed by TBD's computer experts without imposing any safeguards to protect Mr Simons, G2A and Mr O'Boyle: compare the orders made in A v B and Hewlett Packard v Manchester discussed above.”
We would therefore urge interested readers to read the judgment in full.
Digital era, not analogue era. In TBD v Simons, Arnold LJ made clear that while search orders arose in the “analogue era when most documents exist solely in paper form … most documentary evidence nowadays exists in digital form”, and that the “relevance of this transformation to search orders has been insufficiently appreciated” ([176] TBD v Simons).
Arnold LJ emphasized that the ability of computer experts to take complete copies of the contents of storage media incorporated in or associated with computers (i.e., “imaging”) carries with it advantages and disadvantages ([177] – [178] TBD v Simons):
1. It is a relatively non-intrusive process;
2. It enables digital evidence to be preserved for subsequent analysis;
3. But it is incapable of discriminating between relevant and irrelevant information;
4. It is incapable of discriminating between business and personal information; and
5. It is incapable of discriminating between privileged and non-privileged information.
Flowing from the above, Arnold LJ stated at [179] TBD v Simons that:
1. “… 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….”; and
2. “… 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”.
If imaging order is granted, presumption that traditional search order is unnecessary. It bears highlighting that Arnold LJ specifically held at [180] TBD v Simons that if a court is confronted with an application for both an imaging order and a traditional search order, then the court 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.”
Arnold LJ also highlighted that unlike traditional search orders, “no standard form of imaging order has been developed”. As such, Arnold LJ stated that “… this case demonstrates there is an urgent need for the Civil Procedure Rules Committee to promulgate a standard form of imaging order.” (see [181] TBD v Simons).
The “basic” safeguard. Arnold LJ then stated at [192] TBH v Simons that a “basic safeguard required in imaging orders is that, save in exceptional cases, the images should be kept in the safekeeping of the forensic computer expert, and not searched or inspected by anyone, until the return date” and that “On the return date, consideration must be given to the timing and methodology of disclosure and inspection of documents captured in the images. The presumption should be that it will be for the defendant to give disclosure of such documents in the normal way, but this presumption may be departed from where there is sufficient justification. Even if the presumption is departed from, there should be no unilateral searching of the images by or on behalf of the claimant: the methodology of the search must be either agreed between the parties or approved by the court.”
Concerns are aligned with those in Singapore. The need for caution when applying for search orders in the digital era has been raised and addressed before the Singapore Courts.
For instance, in the 2011 decision of Robin Duane Littau v Astrata (Asia Pacific) Pte Ltd [2011] SGHC 11, Yeong Zee Kin SAR sitting in the High Court observed thus:
“17 To my mind, the vigilance which the courts have traditionally kept over executions of Anton Piller orders is all the more necessary in the context of modern day search orders, where electronic recording devices (eg hard disks and USB flash-based removable devices) and storage media (eg optical discs) are often seized and forensic images made. These recording devices and storage media are best regarded as the proverbial filing cabinet, which may contain a surfeit of electronic documents, only part of which are relevant to the pending suit. On this analysis, the party who has seized the recording device or storage medium ought not to be permitted untrammeled access to its entire contents. To do so would, in my view, offend the trite discovery principles which prevent trawling or the emptying of the opponent’s filing cabinets under the guise of discovery: see for example Thyssen Hunnebeck Singapore Pte Ltd v TTJ Civil Engineering Pte Ltd [2003] 1 SLR(R) 75; [2002] SGHC 247. Indeed, the court in Alliance Management SA v Pendleton Lane P and another and another suit [2007] 4 SLR(R) 343; [2007] SGHC 133, which had to consider an application for inspection of a hard disk, required that a protocol be put in place to ensure that the inspecting party is not allowed to trawl through the entire database under the guise of the inspection order.”
In particular, in the recent decision by the Court of Appeal in Lim Suk Ling Priscilla and another v Amber Compounding Pharmacy Pte Ltd and another and another appeal and another matter [2020] SGCA 76 (“LSL v ACP”), the Court of Appeal observed thus at [125]:
“125 Further, we note that expansive search orders are permitted in part due to the increased use of computers, which have the ability to store vast amounts of information and documents. Without properly limiting the search terms, the discovering party may find itself with a vast array of documents which it would not otherwise have any entitlement to. This is not a problem unique to Singapore. As a matter of interest, in the recent decision of TBD (Owen Holland) Ltd v Simons and others [2020] EWHC 30 (Ch) (“TBD v Simons”), the English court was also confronted with the misuse of documents by a claimant company which had obtained some 400,000 imaged materials pursuant to a search order. While the search order sanctioned the preservation of the listed items, the claimant went much further – after inspecting the searched items, the claimant proceeded to use the material therein for a variety of purposes, including to rejoin a defendant who had successfully applied to have the claim against it struck out. In those circumstances, the court concluded that the claimant had committed a “serious and completely unjustified breach of the terms of the Search Order” (at [70]).”
(our emphasis added)
Given that the Court of Appeal in LSL v ACP has referred to the first instance decision, it is likely that the decision by the EWCA in TBD v Simons, and in particular, Arnold LJ’s observations on the scope of search orders, would be highly persuasive, especially since the concerns raised by Arnold LJ are aligned with the concerns raised by the Court of Appeal.
In particular, we note that the Court of Appeal has expressly called for the Rules Committee to consider and determine what other measures may be needed in [126] LSL v ACP. This is similar to Arnold LJ’s call for the Civil Procedure Rules Committee to promulgate a standard form of imaging order.
“126 To counteract the problem of over-expansive search orders, the use of search terms have been introduced, and the practice of appointing computer experts to facilitate the execution of search orders has begun to take root (see, eg, C plc v P (Secretary of State for the Home Office and another intervening) [2007] Ch 1; O Ltd v Z ([46] supra); Directed Electronics OE Pty Ltd v OE Solutions Pty Ltd (No 6) [2020] FCA 64). In fact, the Search Orders Practice Note (GPN-SRCH, 2016) of the Federal Court of Australia mandates that “[i]f it is expected that a computer will be searched, the search party must include a computer expert who is independent of the applicant and of the applicant’s lawyers”, and the search of the computer must be carried out only by the independent computer expert (at paras 20(a) and 20(b)). However, the appointment of an independent computer expert per se may not sufficiently mitigate the issue of over-expansive search orders. Indeed, computer experts were appointed in TBD v Simons. Yet, more than 400,000 documents were seized pursuant to the order, and the claimant then used some of the seized documents for purposes extraneous to the terms of the search order. Given the clear difficulties that can arise with the increased prevalence of computers, and with their increasing storage capacities, we suggest that the Rules Committee should consider and determine any other measures to address the concerns we have outlined here including the appropriate role (if any) of an independent computer expert in the context of search orders. Among others, we envisage that such computer experts could assist the court and the applicant in ensuring that the search terms are appropriately defined to meet the legitimate needs of the applicant, and no further. Computer experts can also ensure that the integrity of the digital documents and data will not be damaged in the process.”
(our emphasis added)
Observation. While it remains to be seen if Singapore Courts will adopt the same approach as set out by Arnold LJ in TBD v Simons (and in particular, the approach that if an imaging order is granted, it will be presumed that unless the contrary is shown, a traditional search order is unnecessary), it is clear that similar concerns are present both in Singapore and in England and Wales.
It is also clear that there is a “convergence“ in that the courts recognize that there is a need for increased safeguards against over-expansive search orders. As highlighted by the Court of Appeal in LSL v ACP and by the EWCA in TBD v Simons, the use of keyword searches and the appointment of computer experts may not be enough to overcome this problem.
Accordingly, practitioners should pay careful attention to the issues raised in TBD v Simons, and ask themselves (when applying for a search order) if they should adopt the approach and the safeguards as raised by Arnold LJ in TBD v Simons.
Tags: Civil litigation; Search Orders; Anton Piller orders; Digital; Imaging; Safeguards; Search terms; Over-expansive
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