Jersey: Disclosure In The Digital Era

Last Updated: 19 October 2018
Article by Clara Hamon

Disclosure has been under the spotlight in 2018. The collapse of a series of criminal cases has drawn attention to the difficulties of dealing with unused material in the form of digital media.  Those difficulties exist equally in managing discovery in civil litigation.      The way electronically stored information ("ESI") is dealt with by lawyers and organisations can have a significant impact on the outcome of a case.  Failure to implement a considered strategy could lead to the inadvertent disclosure of privileged material, adverse costs orders, or even the dismissal of the case. It is of vital importance to address these issues and manage them properly at the outset.

Two rape cases were discontinued within days of each other in the UK in December last year. One of them was already three days into the trial, but was undone by the revelation of text messages from the complainant's phone which wholly undermined the prosecution case.  It was reported earlier this year that over 900 prosecutions were dropped in 2017 due to disclosure failings.  The Criminal Cases Review Commission in an annual report cited disclosure failures as the "continuing biggest single cause of miscarriages of justice".

A Justice Select Committee inquiry took place earlier this year and a report was published in July. It concluded that the growth in digital material presents a challenge to police and prosecutors and measures have been outlined in the National Disclosure Improvement Plan for a new Digital Evidence Transfer System and the formation of a technology group.

In the view of Angela Rafferty QC, chair of the Criminal Bar Association, in most cases the failure to disclosure is not a result of bad faith by the police but due to cost-cutting and resource issues. A thorough review of the contents of the mobile phone of a defendant or complainant (text messages, call lists, emails, photos, documents, audio files) can be hugely time-consuming and is often hampered by passwords and encryption.  In the wider sphere of litigation, the ESI may be considerably more extensive.

Fraud investigations involving vast amounts of ESI held on multiple devices and servers in offices and homes give rise to an onerous duty for prosecutors in discharging their disclosure obligations. Similarly, litigators involved in commercial or trusts disputes going back many years may find their discovery obligations encompass ESI from the devices and cloud storage of a number of individuals and corporate entities, including emails, records and client files stored electronically, audio recordings of telephone calls, draft versions of documents, and multiple copies of items saved in different folders and as attachments to emails.

A paper published by the judiciary in the UK said the volume of data that can be disclosed has increased to 'unmanageable proportions'. In the UK there have been proposals for changes to the civil disclosure regime. These would allow for two different types of disclosure: 'basic', the key documents necessary to understand the case, and 'extended', which will be under the control of the judge.  These reforms are intended to halt the ever-increasing costs of disclosure.

Whilst the defence might insist that every single piece of paper or every byte of data must be examined by the prosecution or the plaintiff, clearly it is impossible to review every item and the only way to manage such material is to adopt a strategy of proportionality. Measures are now encouraged to speed up the process and narrow down the amount of material for review by investigators and lawyers.  Courts in both civil and criminal proceedings have shown they endorse this approach.

In the criminal sphere, the Court of Appeal in England and Wales has considered how prosecutors should approach their disclosure obligations in fraud cases where a large amount of electronic documentation has been seized. In R v R [2016] 1 WLR 1872 it was emphasised that the prosecution must lead disclosure from the outset and adopt a considered and appropriately resourced approach.

There should be an overall disclosure strategy to include selection of software tools and the identification and isolation of material subject to legal professional privilege.   The prosecution should explain what it would and would not be doing, ideally in a disclosure management document.  Dialogue between the parties is encouraged and the defence has a duty to engage in the process to assist the court in furthering the overriding objective.  Search terms and sampling may be used appropriately, and are very much encouraged as a method of identifying relevant material using electronic tools and testing certain folders or drives that are deemed to be irrelevant.

Judicial case management powers should be utilised to ensure active and effective management of the disclosure process. The judgment stated that the constant aim had to be to make progress and that the prosecution is not required to "do the impossible", nor should the duty of disclosure be rendered incapable of fulfilment through the physical impossibility of reading and scheduling each and every item of material seized.  Common sense must be applied and flexibility is crucial.  This approach has received approval in the Royal Court in AG v Byrne.

The use of electronic searches is often the first step in reducing material to manageable quantities for review, but caution is required as much time and money can be wasted on employing searches that are insufficiently focused and return numerous 'hits'. Careful thought should be given to devising smart, Boolean searches to try to ensure capturing anything relevant or disclosable without also netting vast swathes of irrelevant material.  An important factor to bear in mind is that word searches will not necessarily identify any audio or video recordings on a device unless they happen to have been named appropriately.

Dip sampling featured in the plaintiff's approach to discovery in an ongoing civil case in the Royal Court, CMC v Forster & others [2017] JRC188 in which a vast quantity of historic documentation was held in warehouses in Africa.  The Master's first instance judgment set out why he was satisfied that the Plaintiff's decision to dip sample 10% of this material was appropriate in the circumstances, where the task of reviewing every document in the warehouses would have been disproportionate and unlikely to yield relevant documents. Although the decision was overturned on appeal, it was not suggested that the Master was wrong to adopt a proportionate dip sampling approach as a matter of principle.

E-discovery platforms have been used successfully in dispute resolution for some years for managing the storage, searches, deduplication and review of data. Predictive coding was approved by the High Court in the UK in 2016 as a basis for determining which electronic documents are relevant to a dispute and is currently in use in Jersey litigation.

Whilst these tools are of huge assistance in narrowing down the material for review, it is important to avoid the temptation to skimp on a human review of the search results and simply offload large quantities of material on the other side for them to find anything relevant. In the US, the Securities and Exchange Commission has been criticised by a judge for 'data-dumping' over 10 million pages on its opponent.

The key is proportionality. It is important not to be put off by the size of the task and the sheer volume of material.  The courts have acknowledged that in cases involving a significant volume of ESI, only a fraction can be reviewed by human eyes.  Where a reasonable and proportionate approach has been applied, it's far less likely that criticism can be levelled.  Early consideration of the overall material is crucial.  Where this is of a large quantity, advice should be sought on the correct approach.   The provision of a disclosure management document or disclosure review document for the judge and the other party setting out clearly the decisions and steps taken will help to demonstrate this and avoid disclosure challenges arising further down the line.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions