Sunday, 16 October 2016

Deletion of Browser History in Failed Attempt to Protect Privacy Not Spoliation of Evidence

(c) istock/jdwfoto

Is deleting your browser history, so as to attempt to conceal the fact that you had visited "adult" websites, in the face of a court order to "preserve all records relevant to a lawsuit" “spoliation” of evidence?

That was one of the questions that the Honourable Mr. Justice Frank J. C. Newbould of the Ontario Superior Court of Justice was asked to resolve in the case of Catalyst Capital Group Inc. v Moyse, 2016 ONSC 5271 (CanLII).

Facts

The case primarily concerned two competitor, Toronto-based investment management firms, Catalyst Capital Group Inc. (“Catalyst”) and West Face Capital Inc. (“West Face”).

Catalyst sued West Face for alleged misuse of confidential Catalyst information regarding WIND Mobile Inc. (“WIND”), which Catalyst claimed was obtained by West Face from the defendant, Brandon Moyse. Moyse had previously worked for Catalyst before joining West Face. Catalyst claimed that West Face used that confidential Catalyst information to successfully acquire an interest in WIND.

Mr. Moyse was an analyst at Catalyst for a little under two years. He left Catalyst in May 2014 and worked at West Face for three and a half weeks from June 23 to July 16, 2014. It is alleged that at some time between March 14, 2014, when Mr. Moyse first spoke to West Face, and July 16, 2014, when he stopped working at West Face, he gave West Face confidential information regarding Catalyst's strategy to acquire WIND that was used by West Face to structure its bid for WIND.

Of relevance to this post, Catalyst claimed against Mr. Moyse for an alleged “spoliation of documents.”

On July 16, 2014, an interim order was made in the proceedings brought by Catalyst to enjoin Mr. Moyse from working at West Face. The order, consented to by Mr. Moyse, contained a provision that the parties would preserve their records relating to Catalyst and/or related to their activities since March 27, 2014 and/or related to or was relevant to any of the matters raised in the Catalyst action. The order provided that Mr. Moyse was to turn over his personal computer to his legal counsel for the taking of a forensic image of the data stored on it, to be conducted by a professional firm as agreed by the parties, and that he deliver a sworn affidavit of documents setting out all documents in his power, possession or control that related to his employment with Catalyst.

Prior to delivering his personal computer to his lawyer, Mr. Moyse deleted his internet browsing history. He said he did this because he was concerned that his internet browsing history would show that he had accessed adult entertainment websites and could become part of the public record. He says he did not think there was anything improper in doing so.

Catalyst alleged that Mr. Moyse engaged in spoliation of documents and that an inference should be drawn that the destroyed evidence that would have been damaging to the defence of Mr. Moyse, and by extension West Face. It argued that the spoliation should detract from the reliability and credibility of Mr. Moyse.

Decision

In dismissing the claim in its entirety, including the claim regarding spoliation, Mr. Justice Newbould reasoned as follows:

[135] Spoliation is an evidentiary rule that gives rise to a rebuttable presumption that destroyed evidence would be unfavourable to the party that destroyed it. Catalyst argues that spoliation in this case should be recognized as an independent tort. In argument Catalyst contended that damages could be assessed against Mr. Moyse and that an award covering the costs of the case would be appropriate. Catalyst also contended that West Face would be liable for the same amount on a theory of vicarious liability.

[136] The parties agree that a finding of spoliation requires four elements to be established on a balance of probabilities, namely:

  1. the missing evidence must be relevant;
  2. the missing evidence must have been destroyed intentionally;
  3. at the time of destruction, litigation must have been ongoing or contemplated; and
  4. it must be reasonable to infer that the evidence was destroyed in order to affect the outcome of the litigation.

[137] The drawing of an inference was described in Spasic Estate v. Imperial Tobacco Ltd. (2000), 49 O.R. (3d) 699 (C.A.), leave to appeal refused, [2000] S.C.C.A. No. 547, at para. 10 as:

The spoliation inference represents a factual inference or a legal presumption that because a litigant destroyed a particular piece of evidence, that evidence would have been damaging to the litigant.

[138] Thus there must be evidence of a particular piece of evidence that was destroyed.

[140] I will deal with the various claims of spoliation made by Catalyst. The first has to do with Mr. Moyse deleting his browsing history from his personal computer.

[141] Mr. Moyse's evidence is as follows. He understood that pursuant to the order of July 16, 2014, a forensic image would be created of his computer’s hard drive for the purpose of determining what, if any, documents he had in his possession that related to Catalyst or to the issues raised in Catalyst’s lawsuit. He was not concerned that his devices would be reviewed to identify relevant documents that related to Catalyst or to the issues raised in Catalyst’s lawsuit as he had good, reasonable explanations for every Catalyst-related document that would be found and intended to disclose all such documents in his affidavit of documents, as required under the order. He was troubled that Catalyst would have access to his personal internet browsing history, and in particular that he had accessed adult entertainment websites. He was concerned that it might become part of the public record in this litigation.

[142] Mr. Moyse therefore decided that prior to delivering his computer to his counsel, he would attempt to delete his internet browsing history from his computer. He did not believe that there was anything improper about his doing so as the order did not require him to maintain his computer “as is” for the five days before he was to deliver the computer or to preserve clearly irrelevant files. The focus of the order was to maintain and preserve documents relevant to this action. If the order had required him to maintain the computer “as is”, he would not have used it at all prior to the image being taken. He felt that by deleting his browsing history he was deleting personal information not relevant to the litigation.

[143] He was aware that the mere act of deleting one’s internet browsing history through the browser program itself does not fully erase the record, and that a forensic review of a computer would likely capture some or all recently deleted material. He did some internet searches on how to ensure a complete deletion of his internet browsing history, and many websites said that cleaning the registry following the deletion of the internet history would accomplish this. He purchased two software products from a company called Systweak. The first was software named RegCleanPro which he purchased online on Saturday, July 12, 2014, for the purpose of deleting his internet browser history. On Sunday July 20, 2014 the day before he was to deliver his computer to his lawyers, he ran RegCleanPro software to clean up the computer registry after he had deleted his internet browser history.

[144] I accept Mr. Moyse's evidence as to why he deleted his internet browsing history. There is no evidence to contradict his statements as to why he deleted his internet browsing history. He was a young man at the time who had a very close relationship with his girlfriend who is now his fiancée. He did not want his internet searching to become part of the public record. In deleting this history, he did not intend to breach the order of July 16, 2014 or to destroy any evidence relevant to this litigation. This lack of intention to destroy relevant evidence precludes any finding of spoliation resulting from the deletion of his internet browsing history.

[166] In summary, I find that Catalyst has not established that Mr. Moyse intentionally destroyed evidence in order to affect the outcome of this litigation. There is no basis to find that or infer a presumption that Mr. Moyse destroyed evidence that would be unfavourable to him.

Justice Newbould also declined to resolve whether an independent tort of spoliation exists in Ontario.

Commentary

There is a certain cruel irony that by attempting to conceal his viewing of adult websites, Mr. Moyse has actually drawn considerably more attention to the fact. Had he simply left everything in place one would assume that no mention would ever have been made of the fact that there was some irrelevant web-surfing going on. If Alanis Morissette is reading, which I strongly doubt, this is what irony actually looks like.

In any event, a reading of the decision demonstrates the lengths the parties went to in an attempt to sort out what, if anything, Mr. Moyse had actually deleted, and more to the point, why he had done so. His browser history was relevant as Catalyst alleged that Mr. Moyse was attempting to hide the fact that he had visited DropBox, a file management service on which it was alleged he was surreptitiously hiding files, not that he was only concerned about the fact that he may have used his device to access some of the more risqué parts of the internet.

Although the court in this case could find no legal wrongdoing, there is no mention of how the conversation went with Mr. Moyse’s fiancée.

Takeaways for Employees with Labour Pains

There are two takeaways from this case for employees.

First, don’t use your workplace-provided device to access websites that you do not want others knowing that you access. While this blog has previously looked at the issue of an expectation of privacy in employer-provided devices, (see: Supreme Court of Canada: Employees’ Rights to Privacy with Work Equipment) it remains a solid “pro tip” to simply keep somethings to yourself.

Second, if you have used your employer-provided device to access sites that you would rather not make public, and if you are now the subject of an order to preserve evidence, seek professional legal advice before you do anything else. Not only could this case have resulted in a finding of spoliation, contempt for a court order could also have been alleged. Neither finding would have been good; it is therefore better for the world to know that you have a kink than to find one’s self on the wrong side of a contempt order.

If you are an individual looking for assistance with respect to your employment-law issues, contact the professional, experienced and cost-effective employment lawyers for employees at Ottawa's Kelly Santini LLP; we would be happy to be of service to you.

Contact Me

To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260.

Sean P. Bawden is a partner with Kelly Santini LLP, located in Ottawa, Ontario, Canada. He practices in the areas of employment law and civil litigation. He has also taught Trial Advocacy for Paralegals and Small Claims Court Practice at Algonquin College in Ottawa.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

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