The Need to Further Codify Electronic Disclosure in Nigeria
Introduction
Discovery or Disclosure (as it is now called in some Common law jurisdictions), is an important interlocutory procedure, and arguably, one of the most important stages of litigation. It is the process that ensures that all relevant documents are available to the parties, and to the court, so that no one is taken by surprise at trial. The Nigerian judicial system, by and large, accepts that parties to litigation should share documents and other information prior to trial.
Interrogatories & Discovery
Under the various Civil Procedure Rules in several States of the Federation, the first leg in this process is called Interrogatories. It is a sort of legal questionnaire submitted to the other party, as part of pre-trial discovery. It is the administration of a series of questions which are directed at the interrogated party, who is compelled to provide an answer on oath through an affidavit. Discovery of documents, on the other hand, is the second leg of discovery. In this case the evidence required by a party in order to prove its case after the close of pleadings, consists mainly of documents in the possession of the other party or a third party. A request may be made in writing, for the discovery on oath of such documents. This is borne out, for instance, by Order 29 Rule 6(1) of the High Court of Lagos (Civil Procedure) Rules 2019, which provides that:
“A party to a proceeding may, serve a written request on any other party to make discovery on oath of the documents relating to any matter in question in the action that are or have been in his possession, custody or under his power or control”.
Similar provisions are provided for under Order 43 of the Federal High Court Civil Procedure Rules 2019. Some of our courts across the country have equally made provisions for pre-trial proceedings in the form of Case Management Conferences in civil suits, whereby each party has a duty to identify, locate and preserve information and other evidence that is relevant to that specific litigation.
The Rules of Court envisage interrogatories and discoveries to take place, at this case management pre-trial stage. Sadly, despite the existence of these Rules of Court aimed at ensuring ease for both the Bar and Bench in obtaining information to be used at trial, legal practitioners in Nigeria rarely make use of them to request for the production of documents.
E-Disclosure
However, despite this fact, another and arguably more important third leg is fast developing, which from all indications will have far more significance in this modern digital age. This new leg relates to E-disclosure. It means any document held in electronic form, including, for example, emails, text messages and voicemail, word processed documents and databases, and documents stored on portable devices such as memory sticks and mobile phones. Due to the exponential volume of data held in electronic format, e-disclosure is a vital stage in a dispute. The electronic data is searched, identified and preserved for the purpose of using it as admissible evidence in a civil matter.
Unfortunately, there is currently no law, rule or practice direction specifically stipulating the obligation to preserve electronic data for the purpose of anticipated or pending litigation in Nigeria. I am not even sure that there is a reported case on the obligation of parties to preserve such electronic data, upon reasonable anticipation of litigation here in Nigeria. This is why the decision of the Court of Appeal in Abuja on Wednesday 10th March, 2023, ordering the Independent National Electoral (INEC) to allow Nigeria’s President-elect, Bola Ahmed Tinubu, to inspect electoral materials used for the conduct of the Presidential election appears to be breaking new ground.
Bola Ahmed Tinubu & Anor v INEC & Ors (CA 2023)
The Applicant, by way of an ex parte application filed on Tuesday 7th March, 2023 at the Court of Appeal in Abuja, requested that INEC grant him access to inspect the electoral materials, particularly the Bimodal Voters Accreditation System (BVAS) machines which were used in the conduct of the Presidential election polls, in order to prepare for his defence at the Presidential Election Petition Court. In a ruling given the next day on Wednesday 8th March, 2023, a three-member Panel of the Court of Appeal led by Joseph Ikyegh JCA stated that :
“After reading the Applicants’ motion ex parte, I am satisfied that there is substance in the application. I accordingly, grant him leave to inspect, scan and make photocopies of some of the electoral materials”.
Earlier in what was also a related development, Alhaji Atiku Abubakar of the People’s Democratic Party (PDP) and Peter Obi of the Labour Party were both granted permission from the Court, to inspect sensitive electoral materials that were used in the conduct of the election.
E-Disclosure in Nigeria and in Comparison to other Common Law Jurisdictions
In Nigeria, there is, no known or particular electronic disclosure protocol of the sort contained in the Civil Procedure Rules Practice Direction 31B in England and Wales, Practice Direction 3 in Singapore, Practice Direction SL1.2 in Hong Kong, Practice Direction RC17/08 in Jersey, or the “Technology and the Court” General Practice Note in Australia. In the absence of any specific Practice Direction, our courts only have the jurisdiction to give tailored directions to the parties, on an ad hoc basis, (as we noted in the President- elect’s recent ex parte application to the Court of Appeal above), and give guidelines on the manner in which they should conduct their discovery exercise when it comes to electronic discovery. The Courts also have inherent jurisdiction to decide how best to enforce compliance with those discovery obligations, in the event of non-compliance.
The Court’s power to provide tailored, or bespoke, discovery directions to the parties before the discovery exercise is conducted, is again, part of the Court’s inherent jurisdiction to regulate the conduct of civil litigation. This power is only qualified to the limited extent that the exercise of any such particular power might be in direct contravention of any other primary legislation, such as the 1999 Constitution (as amended) or an existing Act of the National Assembly, or any other specific provision of rules, relating, for example, to issues of legal professional privilege.
Although as stated earlier, there is no prescribed form of electronic discovery protocol here in Nigeria, it would not be out of place for parties to substantial litigation as in the forthcoming Presidential election case, for example, to also agree amongst themselves through their Lawyers, a detailed protocol, which could then be appended to a Court Order for directions at a relatively early stage in proceedings. This practice could have the advantage of avoiding unnecessary delays and interlocutory skirmishes, down the line.
The power of our courts to regulate discovery as part of the scope of their inherent jurisdiction, is further buttressed by the UK Supreme Court which confirmed that “the remedy of discovery (now known as disclosure) was adopted by the courts of equity, in order to aid the administration of justice“, and that it was only subsequently codified by the rules of court. See the case of Al Rawi v Security Services [2011] UKSC 34 per Lord Dyson at Paragraph 20. It follows therefore that, the scope of disclosure has long been seen as a matter on which the courts have inherent jurisdiction to decide. English case law has also recognised the English Court’s power to tailor directions relating to electronic discovery, according to the particular circumstances of the case. See Digicel St Lucia Limited v Cable & Wireless Plc [2008] EWHC 2522; Goodale & Ors v The Ministry of Justice & Ors 2009 EWHC B41 (QB).
However, in attempting to reform or update Nigerian law on e-disclosure, one could usefully take into account the rules, practice directions, and experiences of other common law jurisdictions, some of which have been noted above, such as Hong Kong, Singapore, Canada, and Australia, as well as the discovery practices applicable in Jersey, the USA, and also in sone international arbitration matters, by having e-disclosure codified.
The Evidence Act
Even though e-disclosure is not yet codified, there is still an obligation to preserve electronic data under Nigerian law. This is the presumption of law with regard to the withholding of evidence under Section 167(d) of the Evidence Act 2011. The Section provides as follows:
“…the court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it”.
In Simon v State (2017) LPELR-41988(SC) Page 11, Paras. E-F the Supreme Court restated the presumption of law as to withholding of evidence under Section 167 (d) of the Evidence Act 2011 above. What this suggests is that, a party who could ordinarily produce electronic evidence but fails to do so when requested to do so, would be presumed to have withheld the evidence. This presumption of law is anchored on the supposition that the failure and/or refusal to produce the evidence is due to it being unfavourable to the party withholding, hence the refusal to produce.
It is noteworthy that to successfully invoke Section 167(d), the court needs to be satisfied that the evidence exists; such evidence could be produced; it has not been produced, and it has been withheld by the person who could produce it. Thus, simply not producing evidence, would not necessarily amount to withholding it. In other words, the section applies only where it is established that evidence has been suppressed or concealed.
Where, however, a document was pleaded by a party but not tendered, that will not necessarily amount to withholding of evidence as to invoke the provisions of Section 167(d) of the Evidence Act. The above principles as it relates to the law of evidence, should be contrasted with the principle of Litigation Holds. Litigation Holds was first established in the US in Zubulake v UBS Warburg LLC 220 F.R.D 212 (SDNY 2003). Here it was stated that “once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a litigation hold to ensure the preservation of relevant documents”. The key words are ‘in anticipation of litigation’, as opposed to being notified. This principle adds value to e-disclosure, and is worth incorporating into any future codification of e-disclosure principles.
Rules of Professional Conduct
It is also worth pointing out that Rule 14(2) of the Rules on Professional Conduct, requires a legal practitioner to warn his clients against any particular risk which is likely to occur in the course of any matter being handled on their behalf. This could also be taken to mean that a Lawyer has a duty to notify their clients of the need to avoid deletion or destruction of some electronic documents that may be useful, relevant or required in a matter they are handling. In addition, a legal practitioner has an obligation to inform their client once an Order of Discovery is brought to their attention on behalf of such a client. Accordingly, by Order 26 Rule 12
“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”.
Conclusion
Our civil procedure rules in the various courts across the country, are not adequately equipped for the disclosure of electronic documents, and as such, our courts through their inherent jurisdiction are now attempting to plug the lacuna in any anticipated litigation in which e- disclosure is likely to be of significance. The rules of evidence and professional conduct have equally provided supplementary support to the use of the court’s inherent jurisdiction, but legal principles such as litigation holds which are now beginning to take root in our laws point towards the need for further codification of e-disclosure protocols. Several Common law jurisdictions, have already adopted this approach. With the introduction of BVAS machines and other electronic technology into both our electoral and commercial lives, some form of codification possibly through a Practice Direction that will have some sort of bearing on all courts and tribunals across the country, seems not only desirable, but sensible.
