Emails and Digital Documents as
Evidence in Commercial Civil Litigation

Before the information technology revolution, the due process of law could be thwarted by the unlawful destruction of documents and avoid the threat of court based dispute resolution due to the lack of evidence. Yet in the modern age, backup devices and meta-data provide indirect evidence to assert facts that go to the relevant facts in a dispute. As well as this, permanent and perfect records of communications and documents may record compelling evidence to pursue or defend a claim where backups and data are available to prove the essential elements of a case in disputes.

Tampering with Data

Deliberately destroying evidence when one is on notice that legal proceedings may be commenced is likely to be considered a contempt of court, as such conduct is seen - and seriously so - to interfere with the administration of justice. Purpose-built applications designed to permanently erase designated files or free disk space are not necessarily 100 percent reliable. A number of academics suggest that free disk-space must be written multiple times before complete information erasure is reliable. Disk recovery utilities have been widely available for sometime, which leaves the possibility that erased data may be recovered. Putting these specialised information disposal utilities to one side, operating systems such as Microsoft Windows usually simply delete the indexes to the location of files on the disk, rather than deleting the files themselves. The removal of the indexes creates the "free space" on the disk as the space occupied by the files on the disk are no longer allocated space by the operating system. The remnants of these files may be relevant to legal proceedings and subject to disclosure. DLT tapes, DDS tapes, CD-ROMs, Zip drives - or documents and communications on any other media for that matter are also susceptible to disclosure in litigation.

The Duty to Produce Documents

A document under the Civil Procedure Rules is defined as a document as "anything in which information of any description is recorded". In English law, the parties to litigation are required to hand over or disclose documents that affect the prospects of success - or otherwise - of any of the parties to the litigation. Documents sourced from digital media therefore readily fall within the definition of a document. Parties to legal proceedings have a positive obligation to search digital records to ascertain whether relevant documents are stored in that form. Obviously then the evidence obtained may be introduced into evidence of that party or another party to support their claim, counter-claim or defence.

With the amendment of Practice Direction 2A to the Civil Procedure Rules, the application of disclosure to electronic documents is beyond question. The Practice Direction explicitly refers to documents that are held on electronic devices and media, servers and backup systems and electronic documents that have been deleted.

Documents held on PDAs, laptop computers, email servers, instant messaging records, documents created in a word processor, spreadsheet, presentation application such as Powerpoint or Flash, any database application are all disclosable. The restriction on their production lies in their relevance (defined by the CPR) and whether the documents whether they are revealed on a reasonable search, which in turn depends on the scale, nature and complexity of the legal proceedings in question, and whether relevant documents and data are likely to be revealed and the costs of doing so.

Failure to Comply

Failure to comply with one's disclosure obligations may lead to an application for specific disclosure and court orders requiring the party to deliver up the media upon which the digital documents were stored. Ignoring or refusing to comply with such an order would probably lead to some fury from the Bench, a charge of contempt of court, and may be closely followed by a custodial sentence or a pecuniary penalty.

A United States Decision

Atlantic Richfield, a US company, was in the process of disposing a solar energy subsidiary to Siemens Solar Industries. The subsidiary had a lauded computer system that it was developing, that did not in fact work. An employee of Atlantic Richfield wrote in an email, “We will attempt to finesse pas Siemens the fact that we had a great amount of trouble transitioning the technology from the lab to the manufacturing floor”. Another deleted message said, “As it appears that the technology is a pipe dream, let Siemens have the pipe”. Siemens commenced proceedings for fraudulently misrepresenting capability of the technology and the emails were used at the trial successfully.

What To Do

The measures to be taken are trite. Devise, implement and monitor compliance with an e-mail and Internet use policy that makes employees and staff aware of appropriate conduct. The purpose of these procedures is to manage potential liability by ensuring that only suitably authorised and responsible staff put on the record comments, statements of fact and positions that may prejudice the businesses position. Employers should be alert to the dangers of using email to communicate sensitive business information and opinions that are stored indefinitely on electronic media.

There is no legal reason to maintain records over and above the statutory requirements. In the United Kingdom, most company records are required to kept for six years. Should the company though be put on notice that litigation may be commenced, it may be a contempt of court to destroy evidence when on notice of such legal proceedings.

Everyone authorised to use email in a company should be regularly reminded to be appropriate in all internal and external communications and be aware of the damage that they may cause to the business by an oversight or otherwise well meaning action.