Electrical storm on the horizon?

On 14 May 2004 the US yacht Chessie was hit by lightning whilst at anchor in Chesapeake Bay. The owner made an insurance claim. After this was paid, underwater damage to the hull was discovered. The insurers attempted to enforce the award of a private arbitrator, whilst the insured wished the award to be set aside so he could claim the full amount of the damage. Each of the parties had corresponded extensively by email. In a major departure from current USA practice regarding electronic communications, the court refused to admit emails into evidence even though neither party had challenged the admissibility of the other’s email evidence.

The case was Lorraine v Markel American Insurance Co 2007 WS 1300739; 241 FRD 534. In a 101-page opinion concerning the admissibility of electronically stored evidence (“ESI”), Judge Paul W Grimm stated: “Given the pervasiveness today of electronically prepared and stored records, counsel must be prepared to recognise and appropriately deal with the evidentiary issues associated with the admissibility of electronically generated and stored evidence. Considering the significant costs associated with the discovery of ESI, it makes little sense to go to all the bother and expense to get electronic information only to have it excluded from evidence because the proponent cannot lay a sufficient foundation to get it admitted”.

Concern has been expressed in the United States that the case could also be used to exclude computer simulation evidence, for example a program that calculates a driver’s likely speed based on the laws of physics and the extent of damage caused to a vehicle, if the court has not been provided with authoritative sources explaining what the evidential rules applying to computer simulations are and how these have been complied with.

Lagging behind

Lorraine v Markel identifies several issues in relation to electronic evidence. A central theme of the decision is reliability. Many factors can compromise electronic evidence, from the simplest power cut, to system failures, inadequate or incomplete data entry by operators, and contamination of storage media. Data integrity may also be compromised by search and retrieval techniques that lack consistency, and by “data conversion” problems caused by transferring data from one device to another, for example from PC to USB memory stick.

Scottish court practitioners have little guidance to hand on such matters. The Rules of the Court of Session and Ordinary Cause Rules contain almost no provisions specific to what might loosely be termed “e-discovery” or “e-admissibility” issues. The Rules Councils have yet to provide guidance to the profession. The Law Society of Scotland’s Technology Committee is due to consider these matters shortly.

Practitioners in other jurisdictions are better equipped. For example, the Supreme Court of New South Wales operates a protocol (Practice note SCGEN7) for the use of technology in courtrooms and jury deliberation rooms intended in relation to civil litigation, to:

(a) encourage the use of information technology as a means of improving the efficiency of litigation;

(b) emphasise the court’s power to require the use of technology;

(c) offer guidelines on the matters parties should take into account in deciding how to make use of technology; and

(d) offer examples and suggested standards to assist parties in agreeing on the extent and manner in which they will use technology to exchange information.

Annexure 2 to the practice note sets out 12 recommended fields that are to be applied to each document, the implication being that electronically stored information presented in compliance with the practice note will, generally speaking, be deemed sufficiently authenticated and accordingly admissible.

Lessons from the south

In relation to locating electronically stored evidence, the Civil Procedure Rules in England regulate electronic discovery by way of Part 31 (Disclosure & Inspection of Documents), supplemented by Practice Direction 31. The Practice Direction extends the definition of “documents” to email and other electronic communications, word processed documents and databases. The definition covers storage on servers and backup systems as well as “deleted” electronic documents. It also extends to information associated with electronic documents, i.e. metadata. Parties are expected to discuss issues that may arise regarding searches for and preservation of electronic documents. This may involve disclosure of information about their computer systems, electronic devices, the media on which any relevant documents may be held, storage systems maintained and document retention policies. As of yet, these provisions have no equivalent north of the border, a matter that needs to be addressed in early course.

English litigants are also required to complete a prescribed form N265 confirming that they have carried out a reasonable and proportionate search for all documents. The default assumption is that parties do hold electronic document, and have searched portable storage media, servers, off-site storage, PDA devices, graphic or presentation files, spreadsheets and documents. If the search has been limited by reference to specific key words and concepts a party is required to identify them.

It would appear that England & Wales displays a significant level of attention to detail as regards electronically stored evidence that current Scottish rules of court lack. What lessons can Scotland learn from Lorraine v Markel and the English approach to e-discovery to fuel our ongoing debate? The Scottish Court Technology Forum welcomes the profession’s views.

New developments

Recent drivers of change require to be considered. In December 2008 the British Standards Institution released BS1008: 2008, entitled “Evidential Weight & Legal Admissibility of Electronic Information – Specification” (see panel). Speaking of the new standard, Alan Shipman, chairman of the committee responsible for its development, stated: “The new standard is an important step in ensuring the admissibility of evidence in the UK”. The BSI’s description of the standard states that “BS1008 ensures that any electronic information required as evidence of a business transaction is afforded the maximum evidential weight”.

Scottish litigators have tended to agree that electronic evidence shall be admissible (which was not of itself sufficient in Lorraine v Markel), or to take comfort from the Civil Evidence (Scotland) Act 1988, ss 5 and 6 of which state that provided certain prescribed steps are observed, copy documents may be taken to form part of the records of a business, or to be deemed a true copy, “unless the court otherwise directs”. In McIlveney v Donald, 1995 SCLR 802, the sheriff held that copy documents which had not been authenticated by “the person responsible for making the copies” in terms of the Act were inadmissible as evidence in a proof, even though some of them had purportedly been authenticated during the proof. The sheriff made reference to the common misconception among litigators that “anything goes”.

The matter is all the more pressing for practitioners in the light of the welcome new guidelines issued by the Law Society of Scotland in relation to Scanning and Archiving Documents. The guidance is to be read alongside existing guidelines on Ownership and Destruction of Files (both are available on www.lawscot.org.uk/members information).

The principal aspects of the new scanning guidance are that files should be scanned to PDF format, scanning should be witnessed, and clients must be informed in the event that the original documents are to be destroyed, a step the guidance appears to envisage will happen in the majority of cases. A client’s tacit consent to destruction of originals, such as by acceptance of a letter of engagement, is deemed acceptable. The Society’s guidelines in relation to destruction of files state that the client’s “informed consent” should be obtained before files and papers may be safely destroyed. The guidelines candidly acknowledge that it is “virtually impossible to predict when (client papers) might turn out to be of value. There is therefore a risk attached to destroying them”.

Pray for good weather

The risk is admittedly small, but significant nonetheless – it is that in the event of litigation, a court may “otherwise direct” and decline to accept electronically stored information, placing the solicitor in an invidious position if the original has not been retained or the electronic evidence cannot be satisfactorily authenticated. For this reason, the circumstances in which the Scottish courts will or will not accept electronically stored information as the best evidence need to be clarified.

If as BSI claims, compliance with BS1008: 2008 will effectively nullify challenge to the authenticity of the stored electronic information, practitioners ought to be told. Smaller businesses and sole traders may wish advice as to whether they ought to sanction the destruction of original papers or incur the cost of BSI compliance, which may be substantial. Those decisions will be better informed if the element of risk can be predicted reasonably accurately and the potential cost-benefit evaluated with a degree of precision. Meantime Scottish practitioners mooring their yachts in our jurisdictional waters will have to keep on hoping the weather stays fine.

Paul Motion (Partner, BTO) and Siân Warren (IT Commercial Contracts Manager, Scottish Water) are members of the Scottish Court Technology Forum.

Digital evidence: the new standard

BS1008: 2008, is a composite of three existing standards dealing with evidential weight and legal admissibility of information stored electronically (BIP008–1); information transferred electronically (BIP008-2); and the linking of electronic identity to documents (BIP008-3). The new standard makes wide use of policies and audit trails. To take the example of email, the policy suggests that to ensure the integrity of information is not compromised during message transmission, procedures shall be established covering:

(a) titling and addressing;

(b) standards for drafting (including jargon);

(c) spellchecking;

(d) passwords and digital signatures;

(e) use of “CC” and “BCC” copying;

(f) detection and elimination of malicious software;

(g) attachments and links;

(h) use for legal purposes;

(i) avoidance of breach of copyright;

(j) accuracy and content of addressing;

(k) management of and response to messages on receipt.o