The Interplay Between Electronic Information And Litigation

By Oyetola Muyiwa Atoyebi, SAN

INTRODUCTION

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 on 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 which 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 are
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 discuss.

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 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 matters of evidence are 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 an 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
withhold 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 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 setup 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 an 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 relations 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 in. 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, sound tracks, 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.

CONCLUSION

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 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 the 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.

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 recognitions 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, cyber security, 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 sets him apart.

Beyond his interests in law, the learned silk is an avid golfer
and a tech enthusiast.

By Oyetola Muyiwa Atoyebi, SAN

INTRODUCTION

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 on 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 which 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 are
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 discuss.

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 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 matters of evidence are 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 an 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
withhold 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 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 setup 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 an 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 relations 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 in. 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, sound tracks, 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.

CONCLUSION

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 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 the 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.

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 recognitions 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, cyber security, 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 sets him apart.

Beyond his interests in law, the learned silk is an avid golfer
and a tech enthusiast.