This post was not written by ESI Survival Guide. Source: Original Article
I have found out how to make things happen in eDiscovery / eDisclosure. You publish an article opening with a sentence like this:
We are a bit short of useful or interesting judgments about disclosure in England and Wales at the moment.
…just before you take a few days off. That brings all the interesting judgments to your yard. Add a touch of post-Covid lassitude (I don’t complain – many have much worse after-effects than perpetual sleepiness, or “brain fog” as my similarly-affected son calls it), and you find a queue of interesting things to read about and, ideally, write about.
The first of those judgments, the phone-in-the-North-Sea one, was published an hour or so after I published my post. Since then, the “Burn it” solicitor has been found guilty of contempt, a leading London city firm has been criticised for major disclosure failures, a council has had its defence struck out for inadequate disclosure and, over in the US, the lawyer for Alex Jones has handed over his client’s cell phone.
Some of these caused a stir in circles wider than those whose job involves disclosure. Coming to them all rather late, I planned at first to do an omnibus article sweeping them all up at once. I am not sure I would ever finish it, and I doubt whether anyone would read something that long, so I will take them one at a time. Everyone seems to be on holiday anyway, so little is lost by some delay, and a subject must have a shelf-life longer than a few weeks to be worth writing about at all.
Vardy v Rooney – the phone in the North Sea and the missing WhatsApp data.
This judgment runs to 290 paragraphs, most of which are not about disclosure. Indeed, even that which is about disclosure adds a little to our knowledge of the law, although it has something for those of us who are interested in credibility. We can skip over the early paragraphs about the alleged libel, the procedural history, and the law of defamation, taking up the story at paragraph 39.
A recurring theme in this blog, where the subject is data alleged to be missing, is that the overall credibility of witnesses is taken into account when judicial decisions are made about specific circumstances. In an article about Boris Johnson I said:
Courts also concern themselves with the character of the person alleged to be responsible for document deletion. Boris Johnson lies as a matter of course (“liar” is the word which most readily comes to people’s minds when asked about him). He routinely lies to Parliament. He has lied to the Queen. He lies naturally and fluently to anyone and everyone. He will not get much credit for his character when the circumstances of the deletions are investigated.
It began to go wrong for Vardy at paragraph 39 in the judgment with “I find that it is, unfortunately, necessary to treat Ms Vardy’s evidence with very considerable caution.” The words inconsistent, evasive, and implausible follow in quick succession. The judge said of Vardy’s agent, Caroline Watt, (talking of a by then withdrawn witness statement) that “she knew that to a large extent the evidence in her statements was untrue.”
A long passage beginning at paragraph 55 gives Vardy’s story about the loss of all her WhatsApp data and the views of the experts on what she said. All interesting, no doubt, as a technical matter, but not half as interesting as the fact that:
…the full WhatsApp chat between Ms Vardy and Ms Watt is only unavailable because of the conjunction of the loss of data on 15 October 2019 and the loss of the same WhatsApp chat by Ms Watt. [paragraph 67].
This is the “phone dropped in the North Sea” story, an event which closely followed a court order for the examination of the phone. The key paragraph is paragraph 70:
The reasons that Ms Vardy and Ms Watt have given for the original WhatsApp chat being unavailable are each improbable. But the improbability of the losses occurring in the way they describe is heightened by the fact that it took the combination of these improbable events for the evidence to be unavailable… In my judgment, it is likely that Ms Vardy deliberately deleted her WhatsApp chat with Ms Watt, and that Ms Watt deliberately dropped her phone in the sea.
To the delight of legal scholars everywhere, the judge here referred to Armorie v Delamirie, a judgment of 1721 about drawing adverse inferences where a “wrongdoer” has “parted with relevant evidence”.
What lessons of lasting value can we get from all this? David Allen Green published an interesting article on litigating and settling with the heading What Rebekah Vardy got wrong. In disclosure terms, we might decide to get professional help when uploading WhatsApp data pursuant to a court order – even if that goes wrong, no-one can then suggest that you might have lost it deliberately.
As to the phone, I said in one of my articles about this case that “if my phone was the subject of a recent order for examination, I’d wrap it in cotton wool, lock it in a box, and deliver it personally to the lawyers, not take it yachting”, and I would stand by that in all circumstances but the one in which I actually wanted to lose the phone.
The instinct of most of us, as the story emerged in the press, was to be quietly incredulous but publicly neutral – I was unwilling to write anything expressive of disbelief when the stories of data loss first appeared.
We don’t know what advice was given by Vardy’s lawyers, but my own test might have been to tell the phone and WhatsApp stories to ten different people, complete with a chronology showing the court order, the attempted WhatsApp transfer, and the boat trip, and ask them what they thought. What would the majority of them think?