Deleted Emails – The Smoking Gun?

The law has rapidly caught up with the development in electronic communications by broadening the scope of the rules to incorporate emails, text messages, blog posts and every other form of electronic communication into the category of documents that have to be disclosed in litigation.

The ease and speed of electronic communications have lead to the replacement of 'talking around the water cooler' with incriminating, permanent evidence that can be analysed in court.

The obvious solution to this 'modern' problem is to delete the sensitive messages, but the reality is that they can almost always be recovered. The information is not easily accessible (in that the deletion process scatters the information around the 'system') but an expert can forensically piece the data back together. In most cases, files are not truly deleted until the information has been overwritten.

The recent case of CPC Group v Qatari Diar Ltd brought into the spotlight the concern that parties to litigation delete relevant, disclosable emails to stop crucial evidence emerging and undermining their case at trial.

Qatari Diar had pulled out of a contract with CPC where they were appointed to redesign Chelsea Barracks. It was widely assumed that this was because Prince Charles had openly criticised the modern architectural plans and had used his influence behind the scenes. CPC wanted to prove that was the case by accessing email records between key employees that would expose their most candid discussions.

It transpired that the emails between the parties involved had been deleted and, although CPC did eventually manage to have them recovered from Qatari Diar's computers, they arrived too late to be used against them at trial. Luckily for CPC, the emails were not needed, on this occasion, to demonstrate that Qatari Diar had breached the terms of their contract. However, in many other cases the contents of deleted emails would be required, to prove key facts. On this occasion, the recovered emails did, however, show that witnesses had misled the court from the stand.

The process of recovery has to be undertaken by an expert and is time consuming and notoriously expensive. The question arises: who will pay for these costs? Generally, at the conclusion of litigation, the loser will pay the winner's costs and document recovery can form part of this. That is why an increasing number of litigants attempt to argue that the costs of recovering these documents are disproportionate to the matters in dispute, and this conveniently prevents them from having to disclose the documents that might 'torpedo' their case.

Judges are getting wise to this and despite the fact that 'proportionality' is still a crucial principle of the Civil Procedure Rules, there are judgements like Digicel where the Judge ordered the defendant re-do their whole electronic disclosure which cost them around £2 million. As the Judiciary starts to realise the importance of these documents, to the facts in dispute, solicitors who fail to respond to these developments risk harsh treatment from Judges in the form of cost penalties.

Business owners are able to guarantee avoiding expensive document recovery exercises in the future by linking all the business computers and mobile communication devises to one server, which collects, orders and stores all these documents ready for potential disclosure. The downside of this is that even the deleted emails would be collected and therefore proportionate to recover and disclose. This would facilitate easy compliance with disclosure requirements but would expose any underhand practices that the business may have undertaken.

The decision on whether to be totally transparent, or risk having to pay huge costs to recover deleted files, depends entirely on what a business has to hide.

James Murray is a trainee solicitor in the disputes team at Wards. This article was written with Elizabeth Fry.