I wrote recently about an unfortunate “IT glitch” which wiped text messages passing between a senior police officer and the Home Secretary, Priti Patel. It was difficult to cover this story – I did not particularly want to call the officer a liar, and it was easier to assume that he had been let down by his IT department which, I strongly suspect, could have recovered the messages (or hired someone else to do so) if they had wanted to. In the event, the court did not seem too bothered – the facts arising from the alleged offence mattered more than any interference by Patel.
It would be quite wrong to wonder if Priti Patel, the vilest politician of her time, and one impatient with the constraints of mere law when it stands in her way, might have implied that the police officer might consider trading his elevated position in London for traffic control in a rural town. I am sure nothing of the sort was implied, and that an “IT glitch” really is to blame.
Another week, another “IT glitch”. This time it’s the turn of the UK Treasury which has, it seems, wiped data from several government-issued phones. By a singular stroke of misfortune, some of the “lost” messages cover the period when former prime minister David Cameron was sending streams of messages to the Treasury, its civil servants, and its political master Rishi Sunak on behalf of Greensill Capital. We now know that Cameron was being paid £40,000 per day for his strenuous lobbying, and it is very unfortunate that some of the replies are missing. This news arrives just as Michael Gove has barred Sue Gray, the government’s then ethics adviser, from taking questions about Greensill. Between that and “lost” texts, you’d think that the government had something to hide. Well, you may think that; I couldn’t possibly comment.
Others have observed that such communications can be – and at the Treasury certainly should be – captured and archived. The more cynical ones wonder if politicians and officials are told that repeated entry of the wrong password will bar any future access, as in “Do this if you want to delete stuff without leaving an audit trail”.
I doubt even that would survive a rigorous forensic examination, but no-one with the power to commission this has any interest in doing so. I wonder, however, if David Cameron might be asked to fill any gaps from his own collection of the relevant texts. Or have they, too, mysteriously disappeared?
Unlike Boris Johnson’s government, organisations facing demands for discoverable data from courts or regulators can’t just lie about it and expect that lie to be lost in the next wave of lies. As a party, think twice before asserting that your texts are lost beyond recovery; as a lawyer, make sure you know what the technology facts are before putting your reputation on the line by asserting that something cannot be recovered.
That was one of the messages from Doe v Purdue University, a recent case from Indiana in which the lawyers not only did not know about the retention and deletion features of Snapchat and other messaging apps, but passed on that ignorance in representations to the court. The case has been ably written up by Philip Favro of Driven in his article Snapchat spoliation case highlights the importance of eDiscovery competence.
It sounds as if the Metropolitan Police and the civil servants at HM Treasury could do with a refresher course both about their disclosure obligations and about the relevant technology.
Meanwhile, Rick Barker of Accuracy has been highlighting cases involving data destruction in a LinkedIn thread here. He would welcome any additions to the examples which he has gathered.
Rick Barker has also kindly collated a number of my articles about data destruction, many of them involving the UK government. I hope to come back to his list in a future post.