This is a fun and interesting case covered by one of my all-time favorite bloggers, Chris Dale, on his excellent eDisclosure Information Project blog. Here is a brief summary of the case and the eDisclosure implications.
Colleen Rooney and Rebekah Vardy are wives of English football (here, we call it “soccer”) playing husbands and famous in their own right. The term “WAGs” is used to refer to the wives and girlfriends of English football players by British tabloids. You’ll see why that’s important shortly.
As discussed in this BBC article, back in October 2019. Rooney believed someone was leaking information about her to The Sun newspaper, so she embarked on some pretty clever online detective work to figure out who she thought was responsible. Over a series of months, she wrote made-up tales on her Instagram stories on her personal account, restricted who could read them and waited to see if they would appear in The Sun. And they did – until she got down to one account.
In a lengthy Tweet she claimed that “I blocked everyone from viewing my Instagram stories expect One Account,” before delivering the pay-off (including the use of no fewer than a drama-enhancing 10 dots) “It’s………. Rebekah Vardy’s account.”
Of course, Vardy strenuously denied being the leak, immediately calling Rooney on the phone to protest her innocence and quickly posting her defense on social media saying several people had access to her accounts. When Rooney didn’t apologize for the accusation, Vardy sued her for libel.
A Twitter follower of Rooney’s, Phoebe Roberts, called her “WAGatha Christie”, which was picked up by the press as part of the coverage and has stuck with the case since. Get it? Now you see.
If that case happened over here, I’m sure we would see a motion for sanctions and an “intent to deprive” analysis based on Rule 37(e) to determine whether there should be an adverse inference sanction (or outright dismissal of the case).
Doug Austin, eDiscovery Today
In his blog post here, Chris points out a couple of notable disclosure points that are tied to the case:
Social media as evidence: Obviously, the Instagram posts are central to the case here – they are the actual evidence that (presumably) provides the trail as to what happened and whether Vardy was responsible for leaking those stories to the press. The Twitter post may be important as well, because Rooney has 1.2 million followers on her account, so that account may have been used to spread the accusation out to the most people possible (I’m making assumptions here).
Mobile device evidence: Days after an order was made for its preservation, Vardy’s agent Caroline Watt had dropped her mobile phone in the North Sea, when the boat she was on hit a wave. Oops. Chris’s observations regarding this incident made me chuckle:
“The first version in the Times…said simply that the phone was “dropped overboard”. That seemed to imply a deliberate act – hand over the side, fingers loosening, and a gentle sound as the device disappeared into the briny. Later versions talked of a mishap in rough seas, summoning images of a phone dashed from the hand by fearsome waves. I have to say that if my phone was the subject of a recent order for examination, I’d wrap it in cotton wool, lock it in a box, and deliver it personally to the lawyers, not take it yachting.”
Chris Dale, eDisclosure Information Project
This case is overflowing with clever observations!
Chris also notes that “There is also some WhatsApp data which, when we first heard of it, had mysteriously disappeared somewhere between its keeper and the lawyers. It was subsequently said that an IT expert had forgotten the password.” These were conversations between Vardy and Watt, of course.
Chris discusses the case in additional posts here and here – in the second post, he discusses more about the WhatsApp data in that there was a redaction failure (yes, those still happen) and the parties could see what was redacted (which led to a dispute as to whether the clamant had over-redacted).
There is also a lengthy discussion about the upload of the WhatsApp files to her solicitors and her supposed selection of the option to remove the images, audio files and videos during the upload somehow resulting in those files being lost completely.
What do you think – intentional or accidental? Sounds like a job for………. Wagatha Christie! 😉
If that case happened over here, I’m sure we would see a motion for sanctions and an “intent to deprive” analysis based on Rule 37(e) to determine whether there should be an adverse inference sanction (or outright dismissal of the case). It will be interesting to see what transpires over there.
Regardless, the BBC article notes that legal costs for each side will be upwards of £1m and that even the winner will only recover about 70% of their legal bill, leaving them with around £300,000 still to pay. If any damages are awarded, they are only likely to be in the £15,000 to £40,000 range. Judges have repeatedly pleaded for them to settle the matter out of court, but neither side has backed down. Being “right” comes at a price!
Thanks to Chris, I have added the term “Wagatha Christie” to my regular Google search terms to look for updates to the case (in addition to following them on his blog as well). I’m hooked!
Experience more of Doug Austin’s great work at the eDiscovery Today blog here.
Follow Doug Austin on JD Supra here.
Follow EDRM on JD Supra here.
