Disclosure of documents held on computers
In a landmark judgment, the Competition Appeal Tribunal confirmed that it has the power to set a timetable for competition authorities and regulators to re-investigate cases sent back to them, and the power to give other directions about the conduct of the investigation. What not to do with a disclosure order relating to documents held on computer.
In a landmark judgment, the Competition Appeal Tribunal confirmed that it has the power to set a timetable for competition authorities and regulators to re-investigate cases sent back to them, and the power to give other directions about the conduct of the investigation. What not to do with a disclosure order relating to documents held on computer.
These days, most documents are originated and then kept on computer (even if some hard copies are created and filed as well). Frequently the only copy of a particular document will be an electronic one. During litigation, copies of relevant documents in electronic will need to be located and disclosed.
If a given document is likely to cause serious damage to the case if it is disclosed, it may be tempting to delete it rather than disclose it. This is exactly what happened in the recent case of LTE Scientific Ltd ("LTE") v Thomas [2005] EWHC 7 (QB).
Mr Thomas had sold his business to LTE. The sale agreement contained restrictions preventing Thomas, for a period of time, from competing against the business he had sold. LTE claimed that Mr Thomas had in fact been working with competitors, in breach of those restrictions and obtained a temporary injunction against Mr Thomas, as well as orders against Mr Thomas and his wife, requiring them to produce the computers they used at home (together with the documents that were held on those computers).
Although LTE eventually obtained the relevant computers, this was difficult because Mr Thomas deliberately tried to avoid having the order served on him and his wife handed over a computer that was not, in fact, the one used by her and covered by the order. When Mr Thomas' computer was finally handed over, it turned out that Mr Thomas had deleted some of the files on it first.
LTE applied to the court, alleging that Mr Thomas and his wife were in contempt of court. The court agreed, and decided that deleting the files on the computer before it was handed over was a serious criminal contempt of court. It also decided that the appropriate penalty was to send Mr Thomas to prison.
This is a simple case, involving a simple lesson. It is not a good idea to delete electronic copies of documents that you are required (or likely to be required) to disclose in court proceedings. Once a dispute occurs (or looks reasonably likely to occur), parties to the dispute are under a general duty to preserve copies of relevant documents (rather than deleting them), and it is not necessary for there to be a specific court order in place regarding disclosure of the documents.
Once something has been stored on computer, in order to delete it beyond recovery is very difficult. Even when files have been "deleted", it remains on the computer until the relevant file is overwritten. Until that happens (which is a matter of chance and may not happen for years), it is very easy to recover. Even when it has been overwritten there are still tools that may sometimes be used to recover it and a computer will usually keep an audit trail of what actions have been performed using it. If a document is circulated by email, numerous copies of it will have been created in various locations and it is virtually impossible to then locate and destroy all those copies. In short, trying to delete any document without leaving behind any trace of it or of what has been done to it is more than likely to be unsuccessful. Deleting a document is likely to result in more trouble than if it had been simply disclosed.
This article has also appeared in CORPORATE BRIEFING.
