The case of Alexander Nix v Emerdata Limited [2024] EWHC 125 (Comm) (the judgment for which has only recently become available) explains how a court will approach applications for imaging orders, and provides cautionary tales about searching and preserving mobile phone and laptop data. 

The application was for an imaging order of the respondent's (Mr Nix's) phone data, including but not limited to Whatsapp messages, to be collected by an independent computer specialist under supervision of an independent solicitor.  

The key parts of the fact pattern are, in summary:

• Mr Nix submitted a Disclosure Review Document stating a mobile phone was to be searched within commercial litigation;
• after the parties exchanged disclosure in that litigation the claimant's solicitors wrote to Mr Nix to say that ‘we would have thought that there would have been many more documents’, for which the respondent's solicitors explained (on instructions) as being the result of the respondent no longer having access to documents after leaving Emerdata;
• separately, Mr Nix was subject to public examination in insolvency proceedings in which he said he did not know whether he used Whatapp;
• further investigations of other former directors of the company identified that there had been Whatsapp messages to and from Mr Nix;
• the applicant's disclosure provider gave evidence that the Whatsapp messages that had only just come to light should have been returned had the keyword searches which Mr Nix said had been used actually been used;
• further, it became apparent that Mr Nix had taken steps to put beyond reach data on a laptop returned to the company , a process known as zero-filling (deleting data and making any deleted data practically impossible to retrieve by technical means). Whilst there was a suggestion that material from the laptop had been transferred to a memory stick, there was no independent expert evidence provided ‘that all the material on the machine was downloaded, or downloaded successfully, or has not been tampered with following the downloading of that material, or even remains extant following its downloading.’

The key points from the judgment are that:

• Imaging orders require both a failure to satisfy disclosure obligations and aggravating factors  - the judge said ‘not every failure to deal with disclosure obligations satisfactory is likely to trigger the making of an imaging order of this sort and there has to be, as it seems to me, other aggravating factors before such an order is made, not least because although these orders are less intrusive than search orders, they are nonetheless intrusive, exposing the respondent to the possibility that private and irrelevant information will be downloaded as part and parcel of the exercise.’
• Was respondent likely to have damaging materials in Whatsapps? Yes, based on the evidence provided (see paragraph 36 of the judgment).
• Was there a real possibility that the defendants might destroy such material before any inter parties hearing can take place? Yes. First, see the approach to the laptop (above). Second, the failure to disclose evidence of WhatsApp messages ‘and to instruct his solicitors to give the clear and unqualified assurances referred to in the correspondence when, to the knowledge of the respondent, he had either not searched his mobile phones as he should have, or, having searched them, discovered the presence of WhatsApp messages which he then chose not to disclose, or was reckless, not caring whether or not there were relevant WhatsApp messages on his mobile phone which would have been responsive to the search terms that have been agreed’ (see paragraph 37).
• Whether the relief sought is proportionate to its legitimate aims. ‘Proportionality in this context, as is well known, means that the order must do only the minimum necessary to achieve the legitimate aim, the legitimate aim in this exercise being to ensure that all relevant WhatsApp and other messaging services messages relevant to the issues that arise in this litigation are firstly preserved and then disclosed’. The judge found that, yes, the imaging order was proportionate due to: 
  • the request for an imaging order is less intrusive than a search order;
  • the application was limited to access to Mr Nix's mobile phone;
  • there was no risk to private information immaterial to the litigation coming into hands of the claimants or claimants solicitors due to role of independent computer specialist and application of search terms; and 
  • the value of the claim ‘The claims which are being advanced in this case are for substantial sums of money. They may be materially affected by the failure to give appropriate disclosure in relation to the search terms that have been agreed and, to that extent, the very serious risk of damage, potential or actual, to the claimants relevant commercial interests is, in the circumstances of this case, made good.’

The judge also noted that care must be given not to use orders are not used for a collateral purpose, i.e. to assist the insolvency practitioners. In the circumstances, the judge considered that Mr Nix was protected by the role of the independent computer specialist, supervising solicitor and process to image and handle documents.

The case is useful because the Judge was taken to previous case law and could consider the approach specific to imaging orders.  In contrast to another case (Garofalo v Crisp & Ors [2023] EWHC 2625 (Ch)) where the judge gave the ‘general thrust’ that the court's approach to imaging orders should be essentially the same as the approach to a search order, but had not been taken to relevant previous case law. 

For more information about the law, technology and practice of disclosure, contact Tom Whittaker or David Hine.

With thanks to Molly Taylor for assistance.