I am writing my annual play for US and UK judges to perform at IQPC in London. The purpose each year is to sweeten the pill of e-disclosure didacticism with some light humour. If I always cast the US judges as the good guys delivering pearls of wisdom from the bench, that is because we are good hosts and polite to our guests, not a judgment on the relative merits of the two systems.
Last year, the play virtually wrote itself – we had had a run of UK cases, some of which defied parody and required no embellishment to raise a laugh. The only case of note in the last twelve months has been Rybak v Langbar where the claimant’s case was struck out because file deletion software was used between the date of the order for delivery of his computers and the actual delivery. In a painstaking judgment, the judge concluded that the claimant had deliberately destroyed data and that “it must have been judged by him to be adverse to his case and potentially beneficial to Langbar’s case”. He would not permit claimants to “ask for a judicial determination on the evidence that they have chosen to put before the court, without the evidence that they have chosen to deny the other party and the court”.
The setup for a scene in the play about these issues involves comparison between US courts, where heavy sanctions for destruction of data are common, and those in the UK where they are rare. The Rybak case in fact says little about the general duty of preservation and disclosure because it involved the breach of an “unless” order. The factual findings (as to the use of the file-erasing application and as to the intent) showed a breach of the order, making it unnecessary to reach a conclusion as to pure disclosure principles.
It is a coincidence that I come across an article about alleged data destruction in US proceedings on the same day as I wrote this scene. My source is an article called Every two marriages may fail, but intimate photos last for ever by Michael Zoller on the E-Lessons Learned blog. As in Rybak, one party (an ex-husband) was subject to an order, in this case forbidding him from “sharing, showing or distributing any photographs or videos” of the other (his ex-wife). Intimate photographs of her appeared on the web and the ex-husband’s computers showed evidence that he possessed (and presumably used) a program called Evidence Eraser, whose purpose appears from its name.
The ex-wife was unable to produce “clear and convincing evidence” that her ex-husband had violated the order and her civil contempt claim failed. The court found that it was not unusual for someone in the defendant’s line of work to use this type of program. In Rybak, by contrast, the court rejected Rybak’s evidence as to his intentions in using equivalent applications.
Like the Rybak case, this case turns on its peculiar facts. The burden obviously falls on the party who seeks to show that an order has been breached, and this is a fairly high burden in either a contempt or a striking out case in either jurisdiction.