Faulty redactions, “surprising” deletions and a phone lost in the North Sea; the series of unfortunate events that occurred during the disclosure exercise in this high profile libel claim serve as a useful reminder of a few disclosure do’s and one disclosure don’t.
- In 2019, Mrs Rooney (the defendant) made an Instagram post that alleged Mrs Vardy (the claimant) had been leaking stories to the Sun from her private Instagram posts and stories.
- In June 2020, Mrs Vardy issued a libel claim against Mrs Rooney.
- The latest hearing in this claim saw Mrs Justice Steyn hear various pre-trial applications including Mrs Rooney’s application for specific disclosure and Part 20 application to join Ms Caroline Watt (Mrs Vardy’s agent/public relations manager) to the proceedings (Vardy v Rooney & Anor  EWHC 304 (QB) (14 February 2022)).
- Mrs Rooney’s specific disclosure application sought a search, disclosure and inspection order in relation to various categories of documents and relied on various matters including: (a) the way in which redactions had been applied to Mrs Vardy’s documents; and (b) the background of lost and deleted documents that the way in which Mrs Vardy’s disclosure exercise was carried out must be viewed against. These matters lend themselves to a consideration of certain disclosure do’s and don’ts.
Do: communicate the importance of document preservation from an early stage
- Ms Watt is believed to be in possession of relevant documents. Mrs Rooney alleged in her original defence that Mrs Vardy habitually provided private information to journalists and the press sometimes directly, anonymously or through third parties such as Ms Watt.
- At a hearing on 4 August 2021, it was confirmed that Ms Watt’s mobile phone would have to be analysed. When Mrs Vardy’s solicitors relayed this to Ms Watt, she gave evidence that in August 2021, she had lost the mobile phone she used during the period January 2019 to August 2021 in the North Sea: while on a boat trip on holiday, the boat hit a wave and she accidentally dropped her phone into the sea. Ms Watt’s WhatsApp communications (her primary means of communication with Mrs Vardy) were not backed up.
- In addition to the lost phone, in Mrs Rooney’s application it was noted that other relevant WhatsApp exchanges appeared to have been deleted and Ms Watt’s Twitter account had been deleted in its entirety two days after Mrs Rooney’s Instagram post was published.
- Ms Watt remains a non-party to the claim (Mrs Rooney’s application to join her as a Part 20 Defendant was denied) and the documents she retains cannot be said to fall within the control of either party. Nevertheless, this serves as a useful reminder that data can be accidentally lost, destroyed or deleted at any stage and it is therefore both essential and required to advise clients to preserve disclosable documents from the outset.
- Where the Disclosure Pilot applies, the client must be advised of their specific document preservation duties from the moment proceedings are in reasonable contemplation of the parties. These duties include:
- suspending relevant document deletion or destruction processes
- sending written preservation notifications to relevant employees and former employees if there are reasonable grounds for believing they have documents the party itself does not have in its possession
- taking reasonable steps so that agents or third parties who may hold documents on their behalf do not delete or destroy documents that may be relevant to an issue in the dispute.
Do: consider how data will be collected at an early stage and consider engaging e-disclosure consultants/digital forensics experts
- Mrs Vardy’s disclosure of her WhatsApp communications with Ms Watt did not include any images or audio files even though, as Mrs Justice Steyn noted, “it is clear they existed”.
- Mrs Vardy claimed that, during the process of exporting her WhatsApp chat to an Intralinks workspace that had been set up by her solicitors, due to difficulties with the upload (which saw her computer crash twice) she selected the option “to remove the images, audio files and videos”.
- In an occurrence described by Mrs Vardy’s digital forensics expert as “somewhat surprising”, although the possible result of “an usual combination of actions or events”, the images, audio files and videos completely disappeared from Mrs Vardy’s WhatsApp conversation at some stage during the export process.
- As this occurrence highlights, document collection is rarely straightforward but there are a few strategies to employ to make it run smoother.
- Prior to carrying out the document collection, it is important to fully scope all the data sources and, when dealing with electronic data, ensure that the client (a) understands how to collect and transfer that data in a way the preserves metadata and (b) is capable of transferring the data in a way that doesn’t materially alter it i.e. by deleting it.
- Where the client has a dedicated IT resource, there can be real value in engaging with the IT team from the outset. This ensures the information received comes directly from someone with immediate knowledge and understanding of the IT systems in place.
- Where the collection is likely to be complex, or there are particular concerns around the client’s ability to carry out the collection appropriately, it may be sensible to consider instructing a digital forensic expert/e-disclosure consultant to assist, but do so early before it’s too late.
Do: take care over redactions
- Mrs Justice Steyn found that several of the documents disclosed had been improperly redacted, with Mrs Vardy applying a narrower test than required by CPR 31.6.
- When Mrs Vardy’s representatives asserted that Mrs Vardy had told them the information concerned unrelated matters, Mrs Justice Steyn was quick to note that “information cannot be withheld on the basis of a client’s account if it is plain on the face of the document that there is a credible alternative interpretation which would support the opposing party’s case and on which they would be bound to rely if the document is disclosed”.
- Mrs Vardy’s solicitors were ordered to undertake a manual review of certain documents, applying the test for standard disclosure in CPR 31.6 (a task which was estimated to take at least 90 hours).
- Evidently, it is important to ensure that all redactions are carefully considered and that only redactions that are strictly necessary are made (Nicoll v Promontoria (Ram 2) Ltd). It is necessary to set out clearly which documents have been redacted and why. Where standard disclosure applies this should be done in the List of Documents (CPR 31.19)
- Where the Disclosure Pilot applies, any redaction must be accompanied by an explanation of the basis on which it has been undertaken and confirmation, where a legal representative has conduct of litigation for the redacting party, that the redaction has been reviewed by a legal representative with control of the disclosure process (PD51U 16.2).
Don’t: leave quality control until the last minute
- As a result of a software error, Mrs Rooney’s representatives were able to see the material that Mrs Vardy’s representatives had attempted to redact. It was this software error that revealed to Mrs Rooney’s representatives that what had been redacted was too narrow.
- Where e-disclosure consultants have been engaged, it is essential that they are provided with clear instructions as to how documents containing redactions should be produced. A belt and braces approach would be for such documents to be produced exclusively in image form. (Where production is being carried out internally, similar instructions ought to be provided to the team or individual with responsibility for that task).
- On every disclosure exercise it is worth factoring in ample time at the end of the review for production quality control. Among other QC tasks, this should ensure there is sufficient time to check all redacted documents in their post-production form to guarantee that errors such as the one seen in Vardy v Rooney are avoided.
Consequences of getting it wrong
- Getting your disclosure wrong can be damaging to your credibility in the case as well as costing you financially when disclosure tasks have to be re-done. Early preparation and clear processes, as well as following your lawyers’ advice and the advice of any appointed forensic expert/e-disclosure consultant, are key to avoiding these pitfalls.