Search and seizure orders – the forensic perspective
A search (and seizure) order is a powerful tool in the litigator’s armoury where there are concerns in a dispute that crucial evidence will not be preserved.
What is a search and seizure order?
A search and seizure order allows you to enter the premises of the other party to search for, copy, and retain evidence. Search orders are typically granted without the other party having any advance notice to prevent the hiding or destruction of evidence before the order takes effect.
These orders are understandably not easy to obtain. The court needs to be satisfied that:
- the party applying for the order has a strong case;
- the destruction of the evidence would be serious;
- the other party has incriminating items;
- there is a real possibility that evidence would be destroyed if the other party had notice of the order;
- any harm caused by the order to the other party is proportionate to the purpose of the order.
Understanding technology is vital when it comes to the execution of search and seizure and imaging orders
In the digital and post Covid-19 age, digital technology plays an increasing role in legal disputes.
When search orders are granted various safeguards are put in place to protect the person who is subject to the order (known as the respondent). This includes a rule that means an applicant must not search a respondent’s computers unless they have sufficient expertise to do so without damaging the respondent’s system (paragraph 7.5(10) of Practice Direction 25 of the Civil Procedure Rules (CPR)). The applicant and the independent solicitor supervising the execution of the order are heavily reliant on forensic experts to ensure they have the necessary expertise.
Forensic input can also be vital in ensuring the wording of an order covers all possible sources of electronic information and a search party is able to successfully locate the information.
The disclosure provisions contained within the CPR pertain to disclosure of “documents” which is defined at CPR 31.4 as “anything in which any description is recorded”. This means that the possible sources of data that can be captured by a search and seizure or imaging order is vast.
Case law also provides cautionary tales in respect of non-compliance with the forensic aspects of search and seizure orders. In TBD (Owen Holland) Ltd v Simons and Others [2020] EWCA Civ 1182, the applicant (TBD), obtained imaged data during a search. They then proceeded to search the data using key word searches. However, the respondent had not consented to such a search and the Court of Appeal found these searches were beyond the purpose of order, namely the preservation of evidence (which did not extend to requiring or permitting inspection of the documents).
Understanding potential issues relating to digital forensics and obtaining input from forensic experts is therefore key to ensuring the successful execution of an order so that it has its desired effect.
We asked forensic expert, Lawrence Perret-Hall, Commercial Director at CY4OR what steps can be taken to ensure forensic best practice:
- “Let the forensic experts check the draft order – the most successful orders are those we have reviewed before they are made. Things can be missed, not technically feasible or incorrectly worded which leaves ambiguity so obtain forensic input at an early stage.
- Planning / Proper Intelligence – As experts, we are often considered last, getting fragmented and delayed information. However, on the day of execution we have arguably the most important task, the preservation of evidence. We are frequently told large locations are small and we have entered premises expecting an office full of people, to find 1 dusty desktop under a table. In the latter example, significant costs could have been avoided with a more thorough planning stage.
- Expect the unexpected – It is important to have the correct mindset when entering an unknown premises unannounced. We have seen people exit back doors in an attempt to dispose and hide items in skips. Acting quickly to identify all data from the offset is paramount, making sure the respondents are acting properly and professionally.
- Instruct the right Supervising Solicitor – Execution of orders runs smoothly when a Supervising Solicitor takes control. Simple issues can arise like Two-Factor Authentication, when a mobile phone is required to verify access to online email and storage areas. This can mean we need the respondents’ mobile phones for some time to be certain we have access to all data. The Supervising Solicitor needs to foresee such issues, step in, referee the process of access and deal with all discussions so that we experts can focus on their tasks uninterrupted”.
Louise Goodwin is a Senior Associate in Clarke Willmott’s Dispute Resolution Team and has acted as Supervising Solicitor in respect of search and seizure orders.
Lawrence Perret-Hall is Commercial Director in CY4OR’s Commercial Department, specialising in the management of digital evidence, forensic techniques and eDiscovery technology.
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