As reported in the UK’s Guardian Newspaper, the unnamed executive is alleged to have deleted files from an internal archive containing about 500 GB of data. The archive contained email correspondence between News of the World editors, reporters, and private investigators dating back to 2005.
The e-discovery implications of this scandal are twofold. For starters, the alleged deletions come amidst an active police investigation. Should police identify the executive – and any accomplices – and obtain the necessary evidence there is a high likelihood that criminal charges will be filed for obstruction of justice. Secondly, News Corp – the owner of News of the World – is bracing for a swarm of civil lawsuits filed by phone hacking victims and evidence related to those cases was likely deleted.
It is important to note that the e-discovery rules differ somewhat between the U.K. and the U.S. (incidentally, discovery is referred to as “disclosure” across the pond). Generally, e-discovery requirements are far more stringent in U.S. courts than in the U.K., and rulings of evidence spoliation are far more common. Moreover, the repercussions for evidence spoliation are considered far harsher in the U.S. (see the 2010 Victor Stanley case where Judge Grimm deemed the evidence spoliation so sweeping and egregious he recommended jail time). However, there have been cases in the U.K., notably Rybak & Others v. Langbar International Ltd (good analysis here), when deliberate evidence spoliation has resulted in severe consequences.
The bottom line, while there may be differences in discovery rules between the U.S. and U.K., punishment awaits those in either country who deliberately delete electronic evidence that could be responsive in litigation. In other words, News Corp’s attorneys will likely have a lot of explaining to do in court.
