The case of Patel v Unite [2012] EWHC 92 (QB) has given a new twist to the arguments about adequate disclosure of electronic evidence and casts extra light on proportionality, Norwich Pharmacal orders and data protection.
The case concerns alleged defamation and harassment of Mr Patel in postings on a forum run by the British Airlines Stewards and Stewardesses Association (BASSA). The postings appear to have stemmed from his decision to act as volunteer cabin crew during the period of the recent BA strike action by cabin crew. The postings in question were of course made under false names. Unite operated the BASSA forum, but insisted that the postings were made by individuals without its consent or authorisation.
The terms and conditions of the BASSA web site expressly prohibited the posting of defamatory material, and warned users that their true identities might be disclosed to third parties on request. BASSA reserved the right to disclose the true identities of users to third parties, if requested, subject to the user’s data protection and privacy rights. Unite took the forum offline in the summer of 2011, and published a unilateral statement which explained that many of the allegations about Mr Patel’s conduct during the industrial dispute were unfounded, but did not respond to his requests for assistance in identifying the 42 anonymous users of the forum who were responsible for the posts about which he complained. In consequence, a Norwich Pharmacal order was made which required Unite to provide for inspection, by way of electronic copies, the identities, home addresses and IP addresses of the persons who had used specified usernames.
The position was complicated by the fact that the forum had been taken down. Unite responded to the effect that it was impossible to tell when a member started using a particular username, or whether the member was using that username at the time when the posts complained of were made, or to identify any previous username of that member, or the date when a username was changed or swapped by a member. BASSA’s domain provider, Fluent Ltd, could no longer access any of the contents of or information from the deleted forum, and they took no back up copy. It followed, said the BASSA branch secretary, possible to identify the members using particular usernames at the times when the postings complained of were made.
Mr Patel appears to have viewed this sceptically and sought an order that, in the event of Unite not being able to provide some or all of the information sought, an independent expert should be given access to all available copies of the BASSA forum database and permitted to make an image of the database and/or such other electronic copy of data on the database (existing or deleted) as the expert might consider necessary in order to prepare a report limited to the identification of the information sought. The grounds of the application were that Unite failed to comply with the Norwich Pharmacal order by carrying out a reasonable search etc. Unite made further efforts to obtain details, following instructions suggested by Mr Patel’s solicitors, but had little greater success. Essentially, Mr Patel’s case was that the continued failure must be, at best, the result of technical ignorance or incompetence.
His Honour Judge Richard Parkes QC described the dilemma facing him thus (at [28]):
The order sought by Mr Patel is undoubtedly intrusive. It would require Unite to allow an independent expert access to their database and to permit that expert to make an image or some other copy of the database with a view to preparation of a report limited to identification of the information sought. The first question is whether there is any power to make such an order. [Counsel for Unite] conceded that the court has the power, while arguing that it would be neither necessary nor proportionate to exercise it. No domestic authorities on the point have been brought to my attention, and it appears that no mention is made of such a step in CPR 31BPD, which governs electronic disclosure, but I was shown a passage at paragraph 9.29 of Matthews & Malek on Disclosure (Sweet & Maxwell, 2007), which asserts that the court has the power to order inspection of a database and to give access to a party’s computer or to direct the provision of an imaged version of a database, but that it will only do so if it can be shown to be necessary and proportionate. The editors suggest that where it is not appropriate to allow a party to have access to the material, the court may permit inspection and interrogation of the computer system by an independent expert, who would be subject to undertakings necessary to protect the interests of the disclosing party. That, of course, is what is sought here. In my judgment, it must be open to the court, where there is reason to believe that a previous order of the court has not been fully complied with for reasons of lack of technical understanding, to make such further order as is necessary and proportionate to enable and assist the respondent to comply and to ensure that the earlier order is not frustrated by an innocent failure to understand the technical issues, which in this case concern the scope for retrieval of the deleted data.
In the face of Unite’s objections based on data protection concerns, and especially the problem that sensitive data would be disclosed concerning many BASSA members who were wholly innocent of any wrongdoing, the judge followed The Rugby Football Union v Viagogo Ltd [2011] EWCA Civ 1585. He made an order requiring Unite to permit an expert to make an image or some other copy of the database with a view to preparation of a report limited to identification of the information sought.
The judge considered that the intrusiveness of the order proposed could be significantly reduced by ordering that the necessary work should be carried out by an independent expert appointed jointly by the parties, and that the expert should give suitable undertakings to the effect that he should not disclose to Patel or to any other person any information obtained in the course of his copying and examination of the BASSA database except information which identifies those responsible for the posts complained of or which explains why (if that be the case) they cannot be identified. He said ‘On that basis, the order will in my judgment satisfy the requirement of proportionality, and the need to respect so far as possible the privacy and data protection rights of BASSA members’.
