This is a useful US case law update looking at a specific case of deletion and manipulation of data.
I won’t go into details on the specific case here (if you would like to know more about our US capabilities and experiences I would suggest you speak to Mark Kindy, Rob DeCicco and Jeff Teso), but what I will say is that the piece covers off some of the key issues that companies need to be conscious of when undertaking any sort of eDiscovery exercise. Specifically, they must make sure they instruct the appropriate experts to ensure that proper protocols and procedures are followed.
Also, should a party suspect the other side of doing this, then a forensic investigation of the system(s) and document(s) involved can often be very revealing and help strengthen cases.
Examples of the sort of projects like this that we have worked on include:
- Where the integrity of emails had been called into question, specifically around the completeness of the content and the veracity of the date/time information.
- When allegations have been made accusing our client of forging Excel spreadsheets and Word documents to support their case.
- When emails our client relied on were denied being received by the named recipients, who were also the opposing party in a dispute.
- When suggestions that certain chat messages were sent at a specific time at which time their content and transmission were prohibited.
Every day we are reminded that we live in a digital world by looking down at our smartphones and logging onto our computers. Though the legal field is generally slow to jump on the bandwagon of new technology, the use of technology has crept its way into the discovery process, where the production of information commonly comes from electronic sources. As easily as this information can be obtained and stored on our devices, it can also be deleted. Thus, it is extremely important that parties involved in litigation be aware of the consequences that stem from failing to preserve electronically stored information.