On keeping disinformation out of the courts

Andrew Wordsworth

The controversy around the leaked ‘Trump dossier’ highlights the challenges of information gathering in Russia. But it also suggests a looming threat to the legal process as disinformation grows more sophisticated and likely to be deployed in litigation and arbitration.

The fact is it is common to be given salacious information about high profile individuals in Russia. There is an enormous amount of gossip in circulation, most of it stated with great certainty. Some of it is undoubtedly true. But in gathering evidence for use in legal proceedings, determining what is true and false is only the first hurdle. One still has to prove it or else what value does it have in a courtroom or before a tribunal.

Investigators make it more difficult for themselves when they choose to rely on subcontractors and other remote sources – and they do. It is a routine if unarticulated practice throughout the sector. Without the benefit of a first-hand interview, the investigator has to assess not only his sources, but their sources and then the information in turn. The risks are obvious.

To some extent the burden of proof insulates a sound court proceeding from the worst of this disinformation. But the value of winning cases is such that the incentive for third parties to fake evidence is enormous.

As investigators we must approach all information obtained in Russia (and an increasing number of countries around the world) with a high degree of scepticism. We must double and triple test every source of information, even documentary material which elsewhere might be considered implicitly trustworthy.

We have to live with the fact that disinformation is a major factor in CIS commercial and political discourse. But we don’t have to pass it on to our clients.

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