Electronic document disclosure – a new frontier of claims investigations
There is a wealth of data generated by electronic devices or apps that the Civil Procedure Rules (CPR) permit disclosure of, but in reality it is often overlooked by both parties in litigation. Rule 31.5 and the Practice Direction to Part 31 of the CPR permit disclosure of electronic documents.
When thinking of such data, the first thought is often of computers and mobile phones, but that is only the start of where such data can be found. It extends much further to fitness trackers, apps, cloud storage, intelligent home appliances, smart travel cards and bank statements, so the application of electronic document disclosure can be really broad.
The Practice Direction to Part 31 of the CPR defines what electronic disclosure covers. It includes email and other electronic communications such as text messages and voicemail, word-processed documents and databases, and documents stored on portable devices such as memory sticks and mobile phones. In addition to documents that are readily accessible from computer systems and other electronic devices and media, it also includes documents that are stored on servers and back-up systems and documents that have been deleted. It also covers metadata and other embedded data which is not typically visible on screen or a print out.
Thought can be given at a very early stage in a claim to the type of data that a defendant may want to apply for disclosure of. The law is developing but the courts are generally very supportive when there are ‘reasonable suspicions’ or through surveillance or social media searches that indicate the claimant has or may have given false or exaggerated information.
An application for disclosure should then be made once you have sufficient evidence or you have a ‘trigger’, but there must be enough evidence to convince a Judge that further disclosure over and above that already made will be useful in establishing genuine heads of loss.
How do these applications work in practice?
It is important to consider the appropriate time to make an application for disclosure of electronic documents. For example, in circumstances where a claimant alleges that he or she cannot attend the gym or travel, but there is surveillance footage of them travelling to and from the gym, disclosure of their gym pass will show the number of visits made both pre and post-accident. Disclosure of a smart travel card/pass will show how often a claimant has been able to travel on public transport.
A further example are photographs that are held on a mobile phone or laptop, both of which can store a large number of photographs. An Order to surrender photographs from these devices can assist significantly when challenging the veracity of a claimant’s claim, or parts of it. Mobile phones also track the time and place of the photographs which provides a thorough history in chronological order.
The data in laptops or work computers which hold work emails, payroll records, time sheets and invoices for a business could be really beneficial in disproving a claimant who alleges that he/she cannot work. These could show if they have progressed their business and received money and will be supportive when trying to establish whether a claimant has a genuine loss of earnings claim.
Data from electronic devices does not always focus on the quantum of a claim. It could be used to prove or disprove the authenticity of a document, for example, in relation to a photograph that is claimed to be from a particular date, the metadata can show when it was actually taken. Furthermore it can also be used in liability investigations, to check the speed a cyclist was travelling via their cycle specific ‘sat nav’, head cameras, smart watches, or smart fitness devices.
Applications for specific disclosure of electronic documents support and supplement surveillance and social media searches and investigation.
Giving early consideration to the types of electronic data that may assist in assessing certain elements of, or the entirety of a claimant’s claim, together with surveillance and social media searches can be a potential game-changer in some cases. It can lead to early settlement and helps establish the genuine heads of loss so that a claim can be valued with greater clarity.