THE INTERPLAY BETWEEN ELECTRONIC INFORMATION AND LITIGATION
Today’s 21st-century law firm is one highly dependent on technology to facilitate and ease its activities. Technology, which is an essential tool of the modern law firm leverages electronic Information to function optimally. For example, legal software such as Lexis Nexis and Law Pavilion transcend the traditional method of conducting legal research by deploying technology that utilizes electronic information stored in databases to facilitate case law reporting, electronic case file management, case analysis etcetera. Confidential client information, as well as records (such as title documents and wills), are also now commonly stored digitally to ease referencing as well as provide backup for physical storage.
These digital developments have also redefined the pattern of legal proceedings in Courts of law across the globe as evidenced by innovations such as; electronic filings of processes, virtual court sittings, online services of processes etc.
Indeed, it is without a doubt, that these usages of technology generate viable information albeit in an electronic form that is subject to the various laws governing court proceedings.
Indeed, it is the workings of electronic information in civil court proceedings that form the fulcrum of this discussion.
MEANING OF ELECTRONIC INFORMATION
Electronic Information in its basic sense essentially means any information stored or existing in electronic form. For example, electronic books (e-books); electronic newspapers (e-newspapers); electronic journals (e-journals) as well as internet resources. Electronic information also consists of information found in databases, online videos, magazines, archives, conference papers, government papers, scripts and monographs in an electronic form, software, operating systems, web-based information and applications.
Electronic information by its nature is typically generated out of the usage of information and technology (I.T) devices and platforms. Again, for example, word documents saved on computers, emails, witness depositions recorded in video formats are all notables in this regard.
Indeed, it is noteworthy to state that technology in the legal space has come to stay as Information and Communication Technology which are digital infrastructures that aid the electronic manipulation of information for the purpose of business, governance, security and most pertinently in this context – for legal research.
THE DUTY TO PRESERVE ELECTRONIC INFORMATION IN CIVIL MATTERS
It is rightly observed here, that lawyers generally owe a fiduciary duty to their clients in the course of acting on their behalf. Accordingly, it is trite that in their representation of clients, lawyers ensure that adequate steps are taken to observe this duty. Indeed, the duty to preserve electronic information falls within the scope of the fiduciary obligations owed to clients and can be found to arise in the following lights:
1. Evidential Matters
2. Data Protection Law
1. Evidential Matters:
A duty to preserve electronic information in civil litigation typically arises in respect of evidence when there is an existing apprehension of litigation. In advanced jurisdictions, electronic information as a matter of evidence is so serious that the Courts are known to grant injunctive reliefs in respect of same to preserve them. An example is the landmark American case of Dodge, Warren & Peters Insurance Services Incorporation v Riley¹, wherein the Court granted injunctive relief to freeze a person’s computer system even before a discovery request was issued in order to preserve the information contained in it.
Although Nigeria has no law specifically mentioning the preservation of electronic data in litigation, the general obligation to do so can be found in the provisions of the Rules of Various Courts, the Evidence Act, 2011 and the Rules of Professional Conduct, 2007. It is important to consider each of these in relation to the specific matter of preservation of electronic information.
a. Rules of Court:
A cardinal area where the duty to preserve electronic information can be inferred are in the provisions of the Rules of Court as they relate to the discovery of documents. A discovery as we clearly know is a procedure by which a party requests another party in a suit to disclose to him, before the trial, material documents that are in his possession and control to enable the requesting party to inspect the said documents and if necessary make copies of same.²
For the purpose of clarity on the import of discoveries, Order 28 Rule 8(1) of High Court of the FCT (Civil Procedure Rules) 2018, reads:
“A party may in writing request any other party to any cause or matter to make discovery on oath of the documents that are or have been in his possession, custody, power or control, relating to a matter in question in the case. Request for discovery shall be served within 7 days of close of pleadings and shall form part of the agenda of pre-trial conference. The party on whom such a request is served shall answer on oath completely and truthfully within 7 days of the request or within such other time as the court may allow and it shall be dealt with at pre-trial conference.”
The import of the above is that it behoves on a party that might be a party to a likely litigation to ensure that documents and more particularly documents in electronic form which can reasonably be inferred to be in its custody are preserved for the purposes of such litigation.
Thus, where an order has been made by the Court, mandating a party to produce documents in the course of litigation and he fails to obey same, he may suffer the following as held in CFAO (Nig) Plc v Sanu) ³:
i. The defaulting party will be precluded from putting the document in evidence
ii. If he is the claimant, his case may be dismissed
iii. If he is the defendant, his defence may be struck out
iv. If the fault is that of counsel, he may be liable to bear the cost occasioned by his failure
v. The counsel may be liable to attachment
vi. Defaulting parties may also be held in contempt of Court
It is therefore clear that a duty invariably arises at the instance of a party in respect of evidence (which could be in electronic form) to ensure that same is preserved and not destroyed or wilfully withheld, as same can attract the aforementioned consequences.
b. Evidence Act, 2011:
The presumption of withholding evidence under Section 167(d) of the Evidence Act⁴ is another statutory provision that stresses the duty to take steps to ensure that evidence in the form of electronic information in this context is preserved. For clarity, the said section reads:
“…the court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.”
The above provision clearly stresses the need to preserve electronic information as the Court would presume that the failure to do so was deliberate as same would be unfavourable to a party if availed.
c. Rules of Professional Conduct, 2007:
Rule 14(2) of the RPC⁵, places a duty on lawyers to ensure that they inform their clients of all likely risks that may occur in the course of representing the client. Invariably, it can be deduced that a lawyer has a duty to inform his client to avoid the destruction of electronic information or failing to preserve certain electronic information that may become evidential subjects as such an act would constitute a risk by the clear wordings of Rule 14(2)⁶ as aforementioned.
It is also trite to note accordingly, that a lawyer has a duty to inform a client of evidential issues such as discovery requests. In this regard, the provisions of the old Order 26 Rule 12 of the Lagos State High Court (Civil Procedure Rules) 2012 reads:
“A Legal Practitioner upon whom an Order against any party for interrogatories or discovery or inspection is served under the last preceding Rule, who neglects without reasonable excuse to give notice thereof to his client, shall be liable to attachment”.
d. Legal Practitioner’s Act, 1976:
As has been earlier stated, a lawyer may be liable for loss of electronic information as they relate to his clients, as the same can be treated as a breach of the general duty of care owed to a client under the extant provisions of the Rules of Professional Conduct, 2007.
The Legal Practitioners Act⁷ similarly imposes sanctions in instances where a Legal Practitioner acts negligently in handling a client’s matter. Loss of electronic information by a counsel is squarely negligence, and therefore attracts the sanctions contained therein. Section 8 of the Act ⁸ provides that:
“Subject to the provisions of this section, a person shall not be immune from liability for damage attributable to his negligence while acting in his capacity as a legal practitioner, and any provision purporting to exclude or limit that liability in any contract shall be void”.
Further, Section 11(2) of the Act⁹ reads:
“Where a person whose name is on the roll is judged by the Disciplinary Committee to be guilty of misconduct not amounting to infamous conduct which, in the opinion of the Disciplinary Committee, is incompatible with the status of a legal practitioner, the Disciplinary Committee may, if it thinks fit, give such a direction as is authorized by paragraph (c) (ii) or (iii) of subsection (1) of this section; and any such direction may, where appropriate, include provision requiring the refund of moneys paid or the handing over of documents or any other thing, as the circumstances of the case may require”.
The sanctions under the aforementioned paragraphs (c) (ii) or (iii) of subsection (1) are to the effect that the Legal Practitioner’s Disciplinary Committee, may if it thinks fit, give directions:
(i) Ordering the Registrar to strike that person’s name off the roll; or
(ii) Suspending that person from practice by ordering him not to engage in practice as a legal practitioner for such period as may be specified in the direction; or
(iii) Admonishing that person.
2. Data Protection Law
The Nigeria Data Protection Law (NDPR) 2019, is Nigeria’s principal legislation on data protection in the country. The NDPR contains lofty provisions about the rights of data subjects (Nigerian citizens whose data are processed for various purposes) by data controllers (any entity processing the data of data subjects).
In the context of litigation practice, there are various instances in which the data of Nigerian citizens would require protection. For example, a litigation lawyer who has been briefed by a client must take steps to ensure that certain information revealed to him especially those in electronic form are well preserved. Also notable is the practice of certain Courts like the Supreme Court of Nigeria requiring soft copies of processes to be frontloaded alongside hardcopies. In both instances, there are obligations under the NDPR for such data to be protected.
By the extant provisions of Article 2.1(d)of the NDPR¹⁰, the personal data of a data subject must be secured against all foreseeable hazards and breaches such as theft, cyberattack, viral attack, dissemination, manipulations of any kind, damage by rain, fire or exposure to other natural elements. Accordingly, anyone in control of data, that is data controllers must ensure that they put in place adequate measures to protect data. The NDPR further stipulates the means of ensuring data protection by respective data controllers. In this regard, Article 2.6 of the Regulations¹¹ provide thus:
“Anyone involved in data processing or the control of data shall develop security measures to protect data; such measures include but not limited to protecting systems from hackers, setting up firewalls, storing data securely with access to specific authorized individuals, employing data encryption technologies, developing organizational policy for handling Personal Data (and other sensitive or confidential data), protection of emailing systems and continuous capacity building for staff.”
DISCOVERY PLANS IN PREPARATION FOR ELECTRONIC DISCOVERY REQUESTS
A discovery plan here would typically mean a plan set up by a lawyer or Law Firm to deal with matters of electronic discovery and more specifically a notice to produce electronic documents. Accordingly, it is important that a Law Firm has a proper discovery plan to respond to discoveries in the course of litigation.
The following are practical steps towards creating a discovery plan for the purposes of litigation:
1. Identify the Relevant Custodians of Electronic Information:
The first step in the development of a discovery plan is to identify the custodian of electronic information. Here, we mean the people or likely persons who may either have created a piece of electronic information (e.g. the writer of an e-mail), received the information or shared same. The proper identification of custodians in this context is important as it allows for the following:
a. Knowing who the maker of a document may likely be or a person of interest in relation to a particular electronic document and subsequently prepare such persons to testify as witnesses.
b. Knowing the specific devices on which electronic information was generated e.g. a laptop or a mobile phone.
2. Identify the Kind of Electronic Information Created:
The next step is for a lawyer to be able to ascertain the most likely format in which information that has become the subject of a discovery was created. Hence a lawyer must be attentive to the mode of operation of his client. For example, in preparing for a discovery in respect of a media house sued for libel, preparing for discovery would not only be limited to electronic information contained on word form online but also videos or audio recordings by such a media outfit.
3. Identify Where the Electronic Information is Stored:
Having identified who created the electronic information and the format it was created, the next practical step is to identify where it was stored. Accordingly, it is important that a lawyer engages a client to settle beforehand; cardinal issues such as the manner in which it stores data – whether on physical drives or in the cloud or both, the emailing system of the organization –whether or not central email systems (such as RoundCube) or private mails are utilized. In all of these, the goal is to be able to ascertain easily, where any electronic information subject to discoveries can be found.
4. Identify and Settle Relevant Time Issues Relating to Electronic Information:
Here it is pertinent to ensure that electronic information that ought to be available at a particular time is still available. For example, where the law states that particular data ought to be retained for a particular time frame, the deletion or destruction of such electronic information would be a gross violation of the law and put a party at disadvantage in litigation proceedings. For example, in respect of the obligation to preserve electronic information, Section 38(1) of the Cyber Crimes (Prohibition Act), 2015, as it relates to network providers in Nigeria accordingly reads:
“A service provider shall keep all traffic data and subscriber information as may be prescribed by the relevant authority for the time being, responsible for the regulation of communication services in Nigeria, for a period of 2 years.”
ELECTRONIC INFORMATION IN EVIDENCE
The most notable advancement in the legal industry in the recognition of electronic information is the admission of electronically generated evidence by Section 84 of the Evidence Act¹². Prior to the Evidence Act of 2011, the various laws on evidence from 1958 to 2011, were silent on the admissibility of electronic evidence. Admissibility of such evidence depended on fulfilling the requirements that governed the admissibility of documents generally, in their primary or secondary forms. However, owing to technological advancements permeating every area of human activity, it became pertinent that the law recognized electronic evidence in the dispensation of justice; hence the amendment of the Evidence Act in 2011.
It is pertinent to state that, the Evidence Act of 2011, does not expressly use the term “electronic document/information” but inference can be drawn from Section 258(1) of the Act where the Act defines ‘document’ and ‘copies of document’ to include tapes, films, soundtracks, and so on. However, electronic or computer-generated evidence has been described by several authors as information of probative value that is stored or transmitted in binary form¹³. In light of this, it can be said that electronic evidence includes but is not limited to digital devices such as telecommunications or electronic multimedia devices and the usages and applications of electronic information.
Indeed, e-evidence can be found in e-mails, digital photographs, ATM transaction logs, word processing documents, instant message histories, files saved from spreadsheets, internet browser histories databases, contents of computer memory, computer backups, computer printouts, digital video or audio files, and so on. As such, in a bid to regulate the admissibility of such electronic information, Section 84 of the Evidence Act lists the requirements to be fulfilled before such evidence is admitted. This is a form of judicial scrutiny to ascertain the authenticity of such information due to its vulnerability. By the extant provisions of Section 84(2) of the Evidence Act, which has been given credence in the Supreme Court decision of Kubor v. Dickson (2012) LPELR – 9817 (SC), for an electronic document to be admitted in evidence, the following four conditions must be complied with;
a. That the statement sought to be tendered was produced by the computer during a period when it was in regular use;
b. That during that period of regular use, information of the kind contained in the document or statement was supplied to the computer;
c. That the computer was operating properly during that period of regular use, and;
d. That the information contained in the statement was supplied to the computer in the ordinary course of its normal use.
Also, Section 84 (4) of the Evidence Act further provides that the party who seeks to tender a computer-generated statement or document shall file a Certificate of Compliance before such evidence would be admitted in Court.
Therefore, the failure to comply with the stipulated requirements of Section 84, would render the evidence inadmissible before the Court. The effect of admission of electronic evidence in civil litigation in our legal system cannot be overemphasized, as it has expanded the scope of matters that would be admissible in court, thereby aiding the courts with the necessary evidence to do justice as well as ensuring that matters are dispensed with faster and much easier.
Legal Information is the backbone of an efficient judiciary. The Courts of Law depend on the quality of information given to relate to the cases at hand for justice to be meted on all parties. For Information technology to be meaningful in the legal industry, there must be results, output and productivity. As such, this paper is a further call geared towards ensuring that lawyers are enjoined to guarantee that electronic information and records are properly managed to enable the Courts of law to make impartial and all-inclusive quality decisions thus, safeguarding the goal of the judiciary – which is to bestow legal rights to individuals and the society. With the continuous evolution of technology, the Court also has a duty to keep up with the changes in technology, to promote certainty in the use of electronic records, while taking into account all practical aspects.
About the Author
Mr. Oyetola Muyiwa Atoyebi, SAN is an exceptional Technology lawyer and thought leader with over a decade’s worth of experience in legal practice and technology. He has facilitated numerous transactions and given countless legal opinions as regards tech in Nigeria, his outstanding performance has attracted international recognition and awards. He is the youngest lawyer in Nigeria’s history to be conferred with the highly coveted rank of a Senior Advocate of Nigeria (SAN).
He is the Managing Partner of OMAPLEX Law Firm, an established law firm driven by Technology innovation. As an expert in emerging areas of law practice, he has core competence in information technology, cybersecurity, Fintech, Robotics and Artificial intelligence. He is described to be the go-to person when it comes to issues around tech.
The learned silk is best characterized as a diligent, resourceful and yet humble individual who is revered for his highly analytical and pragmatic approach to solving legal problems as well as an unwavering commitment to achieving client goals. Indeed, his hard work and dedication to his clientele set him apart.
Beyond his interests in law, the learned silk is an avid golfer and a tech enthusiast.