Extreme cases do not necessarily add materially to our understanding or give us as much guidance for the future as one might think. Rybak & Ors v Langbar International Ltd [2010] EWHC 2015 (Ch) (09 July 2010)  is what would be called a spoliation case in the US and some other jurisdictions. It is important because we do not have many reported judgments on such matters. The bulk of it, however, is taken up with the judge’s painstaking analysis of the key facts of the alleged document destruction, leaving no one in doubt that there were deliberate acts aimed at suppressing potentially disclosable documents. Once that had been proved, there was little room for argument about the conclusion. The case certainly acts as a warning to those who might be tempted to tamper with their laptops before handing them over, but it gives us no new law.

It would be fair to say that the judgment is rather longer and more complicated than one might think necessary, parts of it reminding me of an undertaker going round with a second set of screws to make absolutely sure that there is no escape. The repetition extends to one passage which is an exact copy of another, suggesting that copy/paste was used where cut/paste was intended (Paragraphs 21-22 are more or less identical to paragraphs 31-33 for the benefit those who, reading it in the middle of the night as I did, might think that their minds must be wandering).

I am not burdened by the need to prove what happened, so my summary can be relatively short. Reducing it to its simplest:

After a history of disputes giving good reason to doubt Mr Rybak’s bona fides generally, and repeated attempts to get satisfactory disclosure, Langbar obtained an order for delivery of certain computer equipment for inspection. The order was a lengthy one; it included safeguards to protect the legitimate interests of the Rybaks and provided for the appointment of an IT expert to take full forensic images.

After some further skirmishing, the computers were delivered up. In addition to the technical and factual matters before the court, there was a serious argument as to the distinction between data which existed on the computers as at the date of the order and data which existed at the date of the handing over. The judge dealt with that (in paragraph 38) by saying:

It seems to me absolutely clear from the order of 6th May 2010 and, in particular, from paragraph 1.4 of the order of 6th May 2010, that what was required to be delivered and what was obliged to be available for inspection were any documents contained on the relevant hardware at the date of the order. Of course, if further data were put upon the computers after the date of the order prior to delivery up, that too would be captured by the order. What the order did not permit was the removal of data or the destruction of data after the date the order was made. As I say, that appears from paragraph 1.4 of the order in particular. It is a sensible interpretation. I fear I have to say that any other interpretation would be a quite senseless one having regard to the admitted obligation on the Rybaks not to destroy data. That is what the order of 6th May 2010 meant.

I mention this (as the judge did, before examining the alleged breach) to emphasise the importance of the precise wording of orders of this kind. Before you can suggest that a party has breached an order, you must be clear what the order actually means. The fact that the Rybaks’ arguments in this case were patently spurious does not undermine the need to define the obligation. Not every lawyer has the knowledge to propose a form of words which captures every foreseeable situation, and you may want to seek specialist help even at this stage in the game.

The forensic expert established that two different types of data cleaning software were used, one whose purpose was to remove any last trace of data which had already been deleted, and the other to delete existing files permanently. If the judge’s explanation of all this seems detailed, one must remember that striking out a case is a non-trivial exercise of judicial power. The judge took into account not merely the technical evidence (itself apparently incontrovertible) but also his assessment of the witness. One informed the other – the judge’s conclusion as to Rybak’s character and motives emphasised the need to be scrupulous in the findings of fact as to the destruction.

The wider messages for future cases are fairly clear – it is very hard to escape the eagle eye of a suitably skilled forensic expert, and it will be assumed that any act of data destruction had the intent of putting the evidence beyond the reach of opponents and the court. The burden effectively lies with the alleged destroyer of evidence to show the contrary.

Paragraph 49 of the judgment sets out Rule 3.8(1) and 3.9(1) which deal with the tests to be applied where a party has failed to comply with a rule, practice direction or court order.

Having reached his conclusion as to the facts, the judge turns to the consequences at paragraph 73. The sense of the ensuing paragraphs lies in the following extracts:

I think I am justified in coming to the conclusion that it is more likely than not that the information in question would have been adverse to Mr Rybak. I think in view of the fact that he has destroyed the data and will prevent any proper evaluation of its significance, it is proper to draw that inference in accordance with established principle. … The question remains: what else has been kept from Langbar? And one does not know, but I think one can draw the inference, that what has been kept from Langbar would have been beneficial to Langbar.

If I relieve against the striking out sanction in the unless order, then I allow the Rybak claimants to come to this court to seek relief, 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. That seems to me to be the antithesis of doing justice between these parties.

… there was a clear unless order. The order was appropriate and remained appropriate. Mr Rybak understood what the order meant. He deliberately destroyed data. The destruction of data is not remedial. It is difficult to assess what advantage he has gained. It is proper to infer that he has gained some advantage which is not insignificant.

I also say that I should send a very clear message to Mr Rybak and anyone else who considers behaving as he has done. The court will not assist a litigant in destroying data and will not assist a litigant to fight a case on the limited material that that litigant chooses to make available, suppressing other material which would be material to the decision of the court.

The position in the UK remains as it is has been – the key question, long pre-dating electronic evidence, is whether justice can still be done in the absence of evidence which has been destroyed. In this case, the judge did not feel it necessary to consider that, so blatant was the breach of the order. He said (at paragraph 78):

It is not essential for my finding under Rule 3.9 that I come to the view as to whether a fair trial is possible or is not possible. There is inevitable difficulty in making that prediction when one party has suppressed information which would have to be evaluated for that purpose. So I will not come to any conclusion on the alternative way of putting the case. I will refuse to grant relief against the sanction already imposed and already in effect pursuant to the order of 20th May 2010.

There is, of course, another question which the judge did not have to consider. There was no doubt in this case as to the date which mattered for the purpose of the application – it was the date of the order for the handing over of the computers. This judgment did not need to consider when the original duty arose to preserve documents which might be needed for actual or pending litigation. The basis for the application would have been different, but Rybak’s actions would have put him in breach of his general disclosure obligations from that date, whenever that was.

The judgment is not really anything to do with fine points of law, and this case is not the herald of a new era of sanctions for spoliation of evidence as has developed in the US. Those who would destroy data need to be aware that technology exists to find them out and there are lessons which are just as important for those on the other side – the judgment is worth reading for its factual description of the evidence which the forensic expert was able to find. We will not, I hope, see every unsatisfactory disclosure exercise challenged – that way lies the madness (as we see it) of the US system where every trivial default is attacked with equal fervour and discovery disputes breed and multiply. I am not, of course, against the idea that those who destroy data should be punished for it. The most extreme US example of deliberate spoliation, known as Victor Stanley II, shows that Rybak was only a minor league player in the document destruction stakes, and that merely losing his case was not the worst that can happen to a claimant. This article by Ralph Losey helps to make clear that the US power to sanction is a necessary weapon in some cases, and if the image of the lion drinking at the bar is lost on some of us (me for example), the picture of the cell bars is clear enough.

The Rybak case must be a model only for similarly egregious acts of deliberate destruction, and not invoked as a tactical threat whenever a party falls short in its compliance with its disclosure obligations.

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