Spoiling the party

Whatever your views about the phone hacking scandal which has taken over our newspapers and almost every other source of news, I cannot believe that there is anyone who is not appalled that someone should think it appropriate to hack into and delete phone messages on a mobile phone belonging to a kidnapped and ultimately murdered schoolgirl.

Milly Dowler and her family did not deserve that.

The worrying consequence of all this is that the very people who should be investigating what happened and prosecuting the perpetrators are the very people whose sticky fingers are all over the wrongdoings of the past few years. The police have much to answer for, as have the journalists and the management of the companies which own our main newspapers. There is bound to be legitimate concern that we will never get to the bottom of what happened and be able to seek to ensure that it never happens again while the people who should be responsible for putting right the wrongs committed are in charge of the investigations. It is like putting the prisoners in charge of the prison.

At least now the Government has announced the appointment of Lord Justice Leveson to chair the inquiry it has set up. He will have the power to summon witnesses so he should be able to ensure that all the main players give evidence unless they decide to put themselves outside the jurisdiction. His forensic and prosecution skills will also stand him in good stead. There should be no soft pedalling there as we have seen in other non-judge led inquiries in the past.

Enough has been written already about this subject and I am not about to add to the volume of material from which it is hard to escape at present. But I am reminded that I have always been glad that I did not pursue a career in the criminal law.

While ruminating about recent revelations, I reflected on the almost gentlemanly way in which commercial litigation used to be conducted. Yes, there were games to be played but if everyone used the White Book to the full, no one was really likely to be surprised. It may not have always resulted in perfect justice but it produced justice of a sort and, at least, I used to reflect, if I got it wrong no one went to prison (except possibly for contempt) or was sentenced to death (I cannot think of an exception here).

A day or so ago I stumbled on an article in the Newsletter of the American Bar Association written by Carol Owen, a partner at US law firm Waller Lansdon in Nashville, Tennessee.  [The Duty to Preserve: Victor Stanley and its Progeny, ABA Section of Litigation Trial Evidence Committee, 30th June, 2011] Carol concludes that the Victor Stanley case is a comprehensive and useful survey of preservation and spoliation law as it stood in the US in 2010. She also says that the most important lesson which can be learned from the case is that proactive measures can ameliorate if not eliminate the most significant risk of sanctions posed by an uncertain present. Corporates and their counsel must learn how to issue and maintain an effective and cost effective litigation hold and she suggests ten ways in which this can be achieved. The article is worth reading for this element alone.

The case (Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 523 (D. Md. 2010). turned on allegations by the claimants that over a four year period of discovery during which time the president of the defendant company was well aware of the requirement to preserve relevant information, the defendants engaged in what were described as multiple acts of misconduct. These ranged from failure to implement a litigation hold through actual destruction of electronic material after the claim had been made, to failure to preserve emails after the claimants demanded preservation, to destruction of electronic material after the court had issued its first preservation order.

As I read Carol’s article I could not help thinking that this is just the sort of misbehaviour we have come to expect from organisations such as News International. Her article sets out the problems which the judge had to resolve and suggests how these matters might be resolved.

It may be too late to prevent spoliation in the case of the phone hacking saga, or it may not. I prefer to use the plain English words such as “destruction” and “deletion” because then everyone understands what we are talking about but the technical US word ”spoliation” carries its own force too.

What happened and is still unfolding at News International has certainly spoiled the lives of a number of people; it remains to be seen how many and its full extent.

However, there is no need for corporate clients and their lawyers to get into this kind of trouble if they only follow the rules and Carol’s tips. In England and Wales the emphasis in disclosure is much more focussed than the very wide scope of discovery practised in the US but the lessons are valid in any event.

As often in this space, there are plenty of warnings out there if you care to look, or having looked, to take appropriate action to prevent parties falling foul of the rules with what may turn out to be disastrous consequences.

Photo credit: Rupert Murdoch at the world economic forum, used under Creative Commons licence, from Jean-Frédéric