Think those deleted messages are gone forever? Think again – they may still exist and you may have an obligation to discover them during the course of litigation.
In a recent case, Hanks v Johnston  VSC 629 (Hanks Case), a P&C president was ordered to use special software to scan his iCloud account for text messages that he said were deleted or had been lost during two changes of iPhone. Even though they were not accessible just by logging into his account, it seems the iCloud’s backup system may have been storing those messages for a rainy day of litigation.
The P&C president also flunked out in his claim for privilege over certain emails containing legal advice which he had forwarded or copied to third parties, thereby waiving privilege.
In an age of technology, we may all learn a lesson from the quick guide to discovery below.
Discoverable, discovering, discovered
In the Hanks Case, the Court was satisfied that the undisclosed text messages were not within the P&C president’s "immediate possession or custody" and that he had conducted reasonable searches to fulfil his discovery obligations to the Court.
However, assuming relevant text messages did exist (peculiarly, a point that no one could prove or disprove), the iCloud backups were within the P&C president’s power, facilitated through the use of the software.
Importantly, the Court found that the P&C president could access the messages himself without the assistance or permission of a third party (such as Apple). The cost was minimal and was to be borne by the defendant, the school principal. The balance of convenience favoured the use of the software.
Citing the overarching purpose to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute, the Court exercised its broad discretion to make an order expanding the P&C president’s obligation for discovery.
One recipient, two recipients, three recipients, more
Just how many is too many? The P&C president claimed legal privilege over three categories of emails. Claims in two of these categories were upheld, being emails between himself and his lawyer (solicitor/client privilege) and emails to other members of the P&C committee forwarding his lawyer’s emails (common interest legal privilege).
However, some emails forwarding legal advice were also sent to individuals who were not on the P&C committee but shared the P&C president’s criticisms of the school principal. The Court acknowledged the shared views of the sender and recipients, but determined this was not enough to obtain the common interest privilege. The P&C president’s disclosure of legal advice to these individuals was inconsistent with his claim for privilege and therefore these documents – legal advice and all – were made available to the school principal for inspection.
Each case will turn on its own facts. Whilst the Hanks Case was a defamation proceeding, it is an important lesson that what’s gone may not be forgotten and that we should think twice before hitting ‘send’.