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A new standard form imaging order for the digital era – in force from 6 April

Posted on 8 February 2022

Following the call in TBD (Owen Holland) Ltd v Simons for a standard form imaging order to be prepared "as a matter of urgency", the Civil Procedure Rules Committee has now produced a standard form order, which will come into force with the Civil Procedure (Amendment) Rules 2022 on 6 April 2022. It is likely that judges will be open to using the new standard form before that time. A copy of the standard form can be found through the Courts and Tribunals Judiciary page.

The call for a standard form imaging order arose in the context of the TBD case, in which the claimant had obtained an imaging order which was in practice "unworkable" and proceeded to breach the terms of that order by carrying out a unilateral review of the forensic images obtained without the defendants' consent. Arnold LJ considered there was an urgent need for a standard form of imaging order to ensure that adequate safeguards were put in place for the protection of respondents. 

Although a standard form search order already existed, that order originated in the analogue era, and has not kept up with the times. Whilst documents were once largely found in hard copy, the vast bulk of documentary evidence is now electronic and stored either in digital devices or in cloud accounts and storage. The standard form search order does not cater for this and there are no provisions for the forensic copying (or "imaging") of this data: a footnote to the standard form merely advises that "special provision needs to be made" if the respondent's devices are to be imaged. It has therefore become customary for practitioners to seek hybrid search and imaging orders, combining the standard search order provisions with bespoke provisions for the forensic imaging of electronic data.

However, the lack of a standard form imaging order has occasionally led litigating parties into trouble, and the TBD case is one such example. The first instance judgment was considered by the Court of Appeal, which upheld the original judgment and laid down a number of principles for search and imaging orders. In particular, the Court of Appeal's judgment confirms that:

  • The purpose of a search order is to preserve evidence – not to give the claimant a form of early disclosure.
  • If an imaging order is made, the presumption should be that a full search order is unnecessary. In addition, careful consideration needs to be given as to the ambit of the imaging order granted.
  • Where an imaging order is made, appropriate safeguards must be included for the protection of the respondents. In particular, save in exceptional circumstances, the images should be kept by the forensic computer expert who obtained them, and not searched by anyone until the court could hear both parties at the return date.
  • At the return date, consideration should be given as to how the documents contained in the images should be searched and disclosed. The presumption is that the documents should be reviewed and disclosed by the defendants in the usual way (i.e. according to the standard rules for disclosure prescribed by the CPR). This presumption can be departed from if there is sufficient justification, but any such search methodology should be agreed between the parties or approved by the court – there should be no unilateral searches of the images by or on behalf of the claimant.

Against this background, the adoption of a standard form imaging order is a very welcome move. It should provide guidance and assistance both to claimants seeking imaging order relief and respondents wishing to ensure that the orders made against them contain adequate protections. The standard form picks up many of the issues raised by the Court of Appeal in TBD and includes (among other things) a requirement that the computer specialist carrying out the forensic imaging must safeguard the images to the order of the court, as well as an express prohibition on the applicant from inspecting or accessing the images without the permission of the court.   

However, some practitioners may feel that the protections for the respondent included in the standard form imaging order still lack the heft of those found in the standard form search order:

  • Unlike in the search order standard form, the imaging order does not contain any requirement for the respondent to be given a period in which to take legal advice before the imaging commences.
  • Similarly, whilst the imaging process is to be supervised by an independent solicitor, the usual undertakings to be given by the supervising solicitor for the protection of the respondent (found in the standard form search order) are absent. Most notably, these include an undertaking to explain the terms of the order to the respondent in everyday language (including the right to take legal advice and to apply to vary or discharge the order).
  • There is no timeframe in which the imaging process is to be completed. The longer a respondent is deprived of the right to access their devices / accounts, the more severe the effects of the order and the more likely there is to be damage caused. As such, it may be prudent for a timeframe to be added into any order sought in which to complete the imaging, so that the Respondent is not kept from their electronic devices unduly. Similarly, there is no provision for devices to be taken away to a forensic lab for imaging and then returned, even though this is frequently what happens in practice to speed up the imaging process.   

Claimants too may seek modifications of the new standard form, particularly in fraud cases:

  • As drafted, the imaging order is reliant on respondents identifying and providing access to those relevant electronic devices in their control: there is no right for anyone to enter the respondent's premises to identify relevant (or potentially relevant) devices. That may be acceptable in some cases, but may not be sufficient for claimants pursuing serious fraudsters, where the defendants cannot be trusted to comply with the terms of the imaging order even if served on them in person and carrying the risk of penal sanction if breached.
  • In another departure from the standard form search order, the imaging order contains no gagging provisions on the respondent. This may increase the risk of third parties being tipped off and taking steps to delete or tamper with data before the imaging process is complete. 
  • Finally, while the imaging order is a useful template, it lacks the other relief usually included with a search order. In particular, there is no requirement on the respondents to provide details of where the relevant information sought is located (or indeed what use has been made of it), or to deliver up copies of those items. The practical effect of imaging orders is that they produce reams of electronic data (often terabytes) in an unprocessed and unwieldy format and can take a very significant amount of time to review, even once a protocol has been agreed by the parties or approved by the court.

For those cases of serious fraud, or where there is an urgent need to discover or recover information (for example, theft of confidential information cases), it is likely that applicants will need to seek hybrid orders. This could mean combining the standard form imaging order with the ancillary relief found in the standard form search order, or combining the standard form imaging order with a delivery up order for which there is still no standard form. The court has regularly granted such orders in the past – how willing it will be do so after the standard form imaging order comes into force remains to be seen.

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