Hackgate IX: Discovery Problems

One would have hoped by now that lawyers connected with the hacking saga would have learned to be a bit more careful about how they review emails and yet, somewhat surprisingly, comes the news that Linklaters appear to have omitted to disclose a significant email to Leveson and the claimants in civil proceedings for about four months. According to the Guardian’s Lisa O’Carroll the email covered a “well-known individual victim” and “an instruction relating to an individual’s phone”.

The court was told that the email was first uncovered in March by Linklaters in response to a search request from the Met police. “However, its existence was only disclosed to lawyers acting for hacking victims on Tuesday.” There is no suggestion its relevance to the police investigation may have legitimately slowed disclosure though the suggestion that the Judge (Vos J) was joking with counsel for some of the victims that the significance of the email would have been rather transparent and the reported fact that Linklaters had, “apologised and said in future they will do better” rather suggests not. I am not seeing in the reported remarks that this was an e-discovery problem either. That leaves three possibilities: permissible tactical delay; unethical suppression of evidence or less than high quality lawyering. We do not know enough to say which and there may be alternatives.

Update: the FT is reporting that the police, not Linklaters, disclosed the email to the claimants lawyers who have protested with concerns about the process of disclosure. Linklaters have said their failure to disclose was an oversight. Also, it appears the reason the email was not discovered prior to March by Linklaters was because it evaded the normal e-search terms that were being used but contained colloquialisms. One assumes this does not include the words, “Holy Cow, better not let the Briefs get their mitts on this…”

My other Hackgate posts here.

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