Imaging orders: Is the search over?
A search and seizure order allows a party to enter their opponent’s premises to search for, copy and retain evidence.
In this digital age the focus of searches is often digital devices with a particular concern that data on those devices will be deleted, destroyed or lost. Where this is the case an imaging order will often achieve the desired result without the need for a search order (this is particularly important given potential coronavirus hurdles associated with search orders). The court went one step further in TBD (Owen Holland) Ltd v Simons  EWCA Civ 1182 stating that search orders should only be made when imaging orders do not suffice.
Imaging orders allow an image to be taken of electronic devices for the purpose of preserving evidence contained therein. There is presently no standard court imaging order (albeit there is judicial comment that such order should be prepared). This means that parties applying for such orders have some degree of flexibility and creativity to draft an order bespoke for the circumstances of their case.
Imaging orders can be advantageous to search orders as they do not usually require the removal of items from the other party’s premises and are therefore less intrusive. Imaging orders characteristically result in complete images of devices being taken so the order must contain safeguards to protect the other party. The order would typically provide that the image is retained by forensic experts unless agreed by the parties or ordered by the court. In this respect, imaging orders are intended to preserve evidence rather than provide a disclosure function.
Imaging orders could also be easier to obtain than standard search orders depending on exactly what form of order is being sought and how similar to a search order the order is. An imaging order could simply compel a party to make available a specified list of devices and online accounts (and their corresponding log in details) or more onerously require the party to grant access to their premises for such a purpose. A party applying for an imaging order will face a higher threshold where an imaging order is sought without notice to the other party as the order is, in reality, a form of search and seizure order.
Given the flexibility and potential advantages of imaging orders over search orders, these are likely to play an increasing role in the future. We anticipate a standard form of imaging order will be issued in due course from the court giving recognition to this position.