A casual observer of US discovery would conclude that the destruction of documents and data is a national pastime, with immense effort devoted both to deleting documents and to trying to prove that someone else has done so. To an outsider, it seemed almost an obsession in the years after the Zubulake opinions. The stakes were high, and the corresponding investment and effort were enormous.
It has never been quite so significant in England and Wales. One could, perhaps, devote several pages to a discussion about why this is so, but it is perhaps more to do with professional sanctions against lawyers than financial sanctions against their clients. I don’t think we are more inherently virtuous about it. Whatever the reasons, we don’t have the same level of overt concern about document destruction.
That does not mean that it does not happen. One of the cases mentioned below includes some discussion about the body of law which has developed on the subject. What is curious is that we have had two cases in a few days involving the deliberate destruction of documents.
Adverse inferences when documents deliberately destroyed
Gordon Exall’s Civil Litigation Brief reports on a case where a party to litigation had deliberately destroyed documents. The case is Active Media Services Inc v Burmester, Duncker & Joly GmbH & Co Kg & Ors  EWHC 232 (Comm) (09 February 2021).
Most of the judgment is about the issues and evidence in the case itself. Starting at paragraph 69 is a section on the importance of contemporaneous documents. The judge gives a quotation from Gestmin SGPS SA v Credit Suisse (UK) Ltd  EWHC 3560 (Comm) relevant to all discovery / disclosure.
… the best approach for a judge to adopt … is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.
The passage about the destruction of documents begins at paragraph 270. A key witness had emails on his personal Gmail account which he double-deleted two days before trial. So far, so bad, but if that had been all, the judge suggested, he “might have been forgiven for his actions”.
The adverse inferences derived from a detailed analysis of the motives for the destruction, its timing, and its consequences, beginning at paragraph 280. The judge examined these exhaustively, along with several judgments which have featured in this blog over the years, and gives an analysis (beginning at paragraph 312) which sets out the adverse inferences to be drawn.
There is much complexity in all this which is worth reading and which I will not attempt to summarise. No-one needs reminding not to destroy potentially documents.
When a solicitor says “Burn it” in relation to litigation documents
In cases like the Active Media case, the downside is adverse inferences and the possible exclusion of evidence or of participation in the proceedings. In the Ocado case, the person responsible for the instruction to “burn” documents faced contempt of court proceedings.
Mr McKeeve is a solicitor. The material facts, as described in the judgment, were as follows:
The context of the contempt application is, on any view, remarkable. It is admitted that within minutes of being notified of the fact that an Order for Search of Premises and Preservation of Evidence had been made in the High Court against clients of his, Mr McKeeve, a solicitor, gave instructions to his clients’ Information Technology manager to “Burn it” (or “Burn all”). In consequence, that manager then deleted or disabled various IT accounts. One of these was an account, previously operated on a covert basis, known as the 3CX account. Its deletion has meant that any messages sent via that account are wholly irretrievable. Ocado has alleged that Mr McKeeve’s conduct was intended to interfere with the due administration of justice.
The point at issue in the Court of Appeal was whether the facts warranted an application for contempt of court. The judge below had refused the application, and the Court of Appeal was not considering the application itself but the question whether the judge was right to refuse it. He was not. The actual contempt application is yet to come.
While we wait to find out what the outcome is, two points arising from the judgment are worth recording. One is the more-in-sorrow-than-in-anger observation in the opening paragraph that the underlying procedings “have all the hallmarks of tooth and claw litigation”. That is an expression which may become a term of art, particularly in disputes about costs.
The other is the reminder that an app (which is what was destroyed a a result of the “Burn it” instruction) is a document. The Court of Appeal judgment includes this:
In his second judgment, the judge had also rejected the proposition that the 3CX app was a “document” within Schedule C of the Search Order. I would not read Schedule C to the Search Order, and in particular paragraph 4, so narrowly. I consider that the 3CX app (which no doubt in any event had appeared on the iPhones or other devices of the group members) was a document. In any event messages on it – and it was accepted that there had been messages on it – were assuredly documents. Further, in my opinion, the 3CX app, and the messages on it, were “documentary material” within the ambit of ground 1 of the Particulars of Contempt: a conclusion also entirely consistent with the wide definition contained in CPR Part 31.4. I consider Ground 3 of the Grounds of Appeal to be well founded in these respects.
The “wide definition contained in CPR Part 31.4” is this:
‘document’ means anything in which information of any description is recorded
That embraces everything from a tweet to a server, and includes a picture, a video, or an audio recording, and its metadata. It might extend to its container – in this case an app, but potentially covering also an entire mail database as well as any one email. All kinds of limitations prevent us having to disclose such containers – relevance and proportionality to name but two – but a single-purpose app, as this one was, is no less disclosable in principle than any message in it.
As with the man who deleted emails in the Active Media case, there will doubtless be much to hear both about the alleged motive for the destruction (what we have heard so far sounds on the thin side), and about the effect and consequences of the deletion.
Meanwhile, these two judgments, and the authorities referred to in them, should act as discouragement to anyone minded to destroy documents.