Destruction of Documents – Disclosure
In the recent case of Active Media Services Inc v Burmester, Duncker & Joly Gmbh & Co KG and Others  EWHC 232 (Comm), the Commercial Court found that adverse inferences could be drawn from a deliberate deletion of emails and the Claimant’s failure to call witnesses whose evidence was likely to bear on the content of those deleted emails.
In this case, relating to a completion guarantee in respect of a film, the Claimant’s sole witness had deliberately deleted emails just two days before trial. Shortly prior to trial, the Defendant’s solicitors had queried the relevance of the witness’ personal email account, with reference to emails that the Defendant was already aware of and had disclosed (but the Claimant had not disclosed).
It was found that the witness had waited until he knew that the Defendant was aware of his personal email account and its relevance, before deleting the documents. As a result of the witness’ actions, the Defendant had been prevented from seeking specific disclosure and enacting a forensic computer analysis.
The Court drew adverse inferences from these actions and concluded that it would have been able to do so even without supporting documentation (although, some such evidence did exist in this instance).
This case serves as a stark reminder that parties are required to properly investigate all sources of potentially relevant documents, including those sources that may not immediately seem to be of relevance.
If you have any questions regarding the topics above, please call Andrew Broadbent on 0114 252 1416 or email firstname.lastname@example.org