A v B

A search and seizure order primarily preserves evidence. Once digital data has been imaged, preservation is complete. A claimant has no general entitlement to inspect the image before the defendant reviews it for relevance.

Claimant-first inspection is a separate, intrusive disclosure measure which the claimant must justify on the particular facts. Relevant considerations include the reliability of the defendant-led process, the parties’ respective ability to identify relevant material, urgency, effective use of search terms, resources and proportionality, and the protection of irrelevant private or confidential material. Appropriate safeguards may include prior review for privilege and an opportunity to challenge proposed keywords.

This joint judgment concerned two search and seizure orders under which digital devices had been imaged. In each action, the order permitted the claimants’ solicitors to search the images for listed items. The defendants contended that they or their solicitors should first conduct the ordinary review for relevance.

The first action alleged contractual and equitable misuse of confidential information by individuals establishing a competing venture. The second alleged dishonest sales of parallel imports, counterfeit goods and goods supplied subject to restrictions. The central issue was whether, after privileged material had been filtered out, the claimant or the defendant should inspect and interrogate the preserved digital data first.

1. The claimants were permitted to conduct the first relevance review in both actions, subject to safeguards. The court began from the position that each claimant had to justify both early inspection and inspection by the receiving party. The orders were allowed on the particular facts and did not establish claimant-led inspection as an inevitable feature of search and seizure orders.

2. The central purpose of a search and seizure order concerning documents is preservation. This follows from the historical authorities and section 7 of the Civil Procedure Act 1997. Imaging completes that preservative function because the data is then secure against destruction. Any subsequent search for relevant documents cannot be justified merely as ancillary to preservation.

3. Inspection of an image must therefore be analysed separately under the disclosure jurisdiction. The ordinary rule is that the disclosing party searches its own documents, assesses relevance and then permits inspection. An order depriving that party of the first relevance review is highly intrusive and requires justification on the particular facts. The court followed the essential approach in CBS Butler Ltd v Brown and others [2013] EWHC 3944 (QB), while explaining that anticipated concealment or destruction is not the only circumstance capable of justifying claimant-first inspection.

4. The relevant considerations include the risk that the defendant cannot be trusted to conduct the exercise properly; the involvement of solicitors; the claimant’s superior ability to recognise relevant material; urgency; the extent to which search terms narrow the material; comparative resources and the overriding objective; and the danger that irrelevant private, confidential or privileged material will be exposed.

5. In the confidential-information action, the claimant was better placed to recognise its information. There was a prima facie case of serious misconduct and concern about compliance with the original order. Speed was also required. The claimant’s modified process adequately protected the defendants by permitting them first to remove privileged and confidential material.

6. In the second action, the claimant was better able to identify illicit goods and needed relevant documents promptly to investigate the supply chain. The defendants’ own evidence indicated difficulty in identifying relevant documents. The defendants’ solicitors were nevertheless to review first for privilege, and the claimants had to disclose their proposed keywords so that objections could be brought before the court.

not stated in the judgment.