Disclosure In The Digital Era

Disclosure has been under the spotlight in 2018. The collapse of a series of criminal cases has drawn attention to the difficulties of dealing with unused material in the form of digital media. Those difficulties exist equally in managing discovery in civil litigation. The way electronically stored information ("ESI") is dealt with by lawyers and organisations can have a significant impact on the outcome of a case. Failure to implement a considered strategy could lead to the inadvertent disclosure of privileged material, adverse costs orders, or even the dismissal of the case. It is of vital importance to address these issues and manage them properly at the outset.

Two rape cases were discontinued within days of each other in the UK in December last year. One of them was already three days into the trial, but was undone by the revelation of text messages from the complainant's phone which wholly undermined the prosecution case. It was reported earlier this year that over 900 prosecutions were dropped in 2017 due to disclosure failings. The Criminal Cases Review Commission in an annual report cited disclosure failures as the "continuing biggest single cause of miscarriages of justice".

A Justice Select Committee inquiry took place earlier this year and a report was published in July. It concluded that the growth in digital material presents a challenge to police and prosecutors and measures have been outlined in the National Disclosure Improvement Plan for a new Digital Evidence Transfer System and the formation of a technology group.

In the view of Angela Rafferty QC, chair of the Criminal Bar Association, in most cases the failure to disclosure is not a result of bad faith by the police but due to cost-cutting and resource issues. A thorough review of the contents of the mobile phone of a defendant or complainant (text messages, call lists, emails, photos, documents, audio files) can be hugely time-consuming and is often hampered by passwords and encryption. In the wider sphere of litigation, the ESI may be considerably more extensive.

Fraud investigations involving vast amounts of ESI held on multiple devices and servers in offices and homes give rise to an onerous duty for prosecutors in discharging their disclosure obligations. Similarly, litigators involved in commercial or trusts disputes going back many years may find their discovery obligations encompass ESI from the devices and cloud storage of a number of individuals and corporate...