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The rise in the use of electronically stored information means cases involving deleted or manipulated documents have needed to be addressed.

The ease with which electronic documents can now be created, manipulated or destroyed means that cases where documents have been destroyed, suppressed, altered or falsified are coming before the courts with increasing frequency. In Bilta (UK) Ltd v Nazir (2010) a defendant sought a stay of proceedings on the basis of an arbitration agreement alleged to have been attached to an email. No copies of the agreement or the email could be found.

The court had to consider an application to strike out the stay application. The ground relied on was that the deletion of emails and the wiping of a hard drive meant there could be no fair determination of the issue because the body of emails sent in the relevant period could not be reproduced.


Where emails have been routinely destroyed prior to the commencement of proceedings the court has applied the principle that it would only limit a party’s further participation in the proceedings where that destruction has amounted to an attempt to pervert the course of justice. An example of such a case was Douglas v Hello (No 3) (2003), where there was no evidence of such an attempt.

Where proceedings have been commenced a different principle applies. Solicitors have a duty to advise their clients promptly after the issue of the claim form of the importance of not destroying documents that might by any possibility be disclosed.

If documents are then destroyed, the court will limit a party’s further participation “only if his conduct has amounted to an abuse of the process of the court which would render any further proceedings unsatisfactory and prevent the court from doing justice”, according to Lord Justice Chadwick in Arrow Nominees Inc v ­Blackledge (2002).

Accordingly, the responsible party must first have acted with the object of preventing a fair trial. Second, that conduct must have jeopardised the fairness of a trial.

In Bilta the court found that the relevant documents had not been destroyed with the object of preventing a fair trial and the application therefore failed.

A fair trial may not be possible because it is not clear what other documents have been destroyed or remain concealed, or where evidence likely to be damaging has been destroyed. An extreme example of the latter occurred in Raja v van Hoogstraaten (2006), where the defence to a claim based on an oral agreement was struck out because the defendant had ordered the killing of the claimant.

Alternatively, the investigation into what documents have been destroyed or falsified might so overtake the investigation of the real issues that no fair trial would be possible. A fair trial in this sense means a trial conducted without an undue expenditure of time and money on a collateral issue. It was on this basis that the Court of Appeal struck out the claim of a petitioner who had created false documents and diary entries in Arrow Nominees.

If the issue is to be tried and a document has been destroyed deliberately, “the strongest possible presumption arises that if it had been produced it would have told against” the destroyer, according to the principle set out in the 1916 Ophelia case.

Furthermore, where documents are destroyed deliberately or altered it is arguable that a more general inference can be drawn that the party disbelieves their own case - see, for example, R v Watt (1905).

News disservice

No such inference can, of course, generally be drawn where documents have been deleted in the ordinary course of business and no proceedings are anticipated.

However, in the Australian case of Seven Network Ltd v News Ltd (2007) the court had to consider the evidence of a solicitor employed by News Ltd. The company’s policy was that all centrally stored emails should be deleted after three days. The solicitor furthermore permanently deleted emails every fortnight from his own hard drive. He admitted the reason for this was that people in the future would know as little as possible about what he had been doing from documentary records.

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Shred of
Published with the permission of Joseph Carney, Barrister

Joseph Carney, 3 Stone Buildings

March 2011

If letters can be evidence so can Facebook posts, says expert

Claire McCracken is a technology law specialist with
Pinsent Masons, the law firm behind OUT-LAW.COM.

OPINION: Private things turn up in court cases. This has always been the case, and there are many people in jail, paying fines or out of a job because of what they have said or done in private.

Yet when a court wants to use material from a social networking page in a case there is a web-wide sharp intake of breath.

There are objections to the use of this material and shock that this use is even possible at all.

It is an odd reaction because there is no reason why information published on social media sites should be especially private. If a court can demand that it see and use a private letter, or hear details of a private conversation, it is perfectly natural that it be able to demand to see what you post on your Facebook page.

Perhaps it is to do with the word 'private'. Maybe users think that this locks information off from the world. That is true, up to a point, but it can't hide it from the legitimately prying eyes of the court.

What, exactly, are the court's rules, then? With exceptions for communications with a lawyer a court can demand to see private material – including letters, emails, diaries – if it is relevant to the case. The litigation rules in England and Wales, the Civil Procedure Rules, broadly define "documents", meaning that electronic documents which can be demanded can include instant messages and content from social networking sites.

This is becoming an increasingly common feature of court cases. Rane Zimmerman was a forklift driver at a warehouse owned by Weis Markets in Pennsylvania in the US. He said that he hurt his leg at work and claimed damages for lost wages.

Weis Markets said that they thought his Facebook and MySpace pages indicated that his leg was not as damaged as he claimed and asked the court to give it his passwords for those pages so they could check.

It is entirely reasonable for the court to order that information from these social media platforms be allowed in court if it is relevant. The information is private, up to a point, but if a court decides it is important in deciding the facts of a case, it should be possible to examine it.

What will rightly give some observers cause for concern is that the court agreed to demand the handing over of Zimmerman's usernames and passwords.

This will give his ex-employer access to far more private information than just that which is relevant to the case and is a mistake.

Rather than one side being handed access to all this private information, the material in question should just form part of the normal bartering that goes on before a case between lawyers that determine what will and will not be admitted as evidence. That information appears on a social media page rather than in an email or in a diary should not change its value as evidence at all.

Social media sites give an insight into people's lives, just as written letters used to and diaries still do. Anyone who is thinking of going to court should first think about what others now know about them through this medium. Can their claim be supported? Or has it already been undermined on countless acquaintances' computer screens around the world?

This material is fair game as long as courts respect the normal processes of evidence gathering, and users of these platforms will just have to get used to the accountability that comes with their private lives being that little bit more public than before.

Claire McCracken, Pinsent Masons

Computer Evidence Experts







Recent research carried out by the University of South California estimates that over 295 exabytes of data have been stored around the world since 1986. That's 295 billion gigabytes.

If this was printed out onto A4 paper using a standard 12 point font, it would create 14,536,000,000,000,000,000 pages, a pile 4.6 billion miles high.

Now we come to reviewing the data!!!If every man, woman and child on Earth helped us out, each one would be given 21 billion sheets of paper.

Assuming that they can all read at approximately one page a minute, it would take the Earth's population over 39,000 years to read every piece of data that has been created.

February 2011

Using IT to Tackle Internal Fraud
Amid fears of a double-dip recession, employee fraud and misconduct continue to keep us busy at asb law and the use of computer forensics has proved an invaluable tool in the majority of our cases. Even the most computer literate of employees have little idea of the electronic footprints that can be left on their computer and the trail of evidence that can be recovered.

29 June 2010

Lyndsey Ratcliffe Associate, ASB Law

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Employee use of the Internet
For many employees, email and the web are indispensable business tools. When you give your employees internet access, you give them a resource that has the potential to reap enormous business benefits. But it also has enormous potential to be misused and - in some instances - that misuse can be damaging for the business.

Nigel Miller Partner, Fox Williams LLP

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