Introduction
As officers of the court we cannot counsel or suggest or recommend to a client to destroy or remove documents (whether paper or in an electronic format) that may be required in litigation. Nor should we be a party to any proposal by a client to destroy or remove documents that may be needed in litigation.
Regard should also be had to the following sections of our Criminal Code Act 1899 (Qld):
129 Damaging evidence with intent
A person who, knowing something is or may be needed in evidence in a judicial proceeding, damages it with intent to stop it being used in evidence commits a misdemeanour.
140 Attempting to pervert justice
A person who attempts to obstruct, prevent, pervert, or defeat the course of justice is guilty of a crime.
Increasingly, people are using social media to keep in contact or to retain information. The information exchanged or kept on such sites may be relevant to issues in a dispute before the courts.
Disclosure is an important step in litigation. The various court rules impose significant burdens on litigants and practitioners to ensure the process is properly attended to. As Lord Wright noted in Myers v Elman:1
A client cannot be expected to realise the whole scope of that obligation, without the aid and advice of his solicitor, who therefore has a peculiar duty in these matters as an officer of the Court carefully to investigate the position and as far as possible see that the order is complied with. A client left to himself could not know what is relevant, nor is he likely to realize that it is his obligation to disclose every relevant document, even a document which would establish, or go far to establish, against him his opponent’s case.
The facts in Lester v Allied Concrete Co,2 highlight an example of a US attorney who failed to appreciate the scope of his duties. It is novel in the sense that it concerns an instruction to a client involved in litigation to ‘clean up’ his Facebook page. The attorney also attempted to hide the exchange of emails between his law practice and his client concerning the strategy to ‘clean up’ the plaintiff’s Facebook account. This included an intentional omission of details of the exchange in material filed with the court.
The court found that the plaintiff had a duty to disclose and produce the documents and electronic data the subject of the defendant’s request subject to any well founded objection. The attorney’s and the plaintiff’s actions were in breach of obligations under the court’s rules and both were ordered to pay sanctions and the attorney was referred to his Bar Association for consideration of disciplinary action.
Comment
We need to be aware that a client could be tempted to destroy, delete or remove documents which may be unfavourable or assist his or her opponent to advance their case. We cannot simply allow the client to do whatever they wish or to make whatever list or affidavit they think fit. We cannot escape our responsibility for careful investigation or supervision of the disclosure process.
If a client will not give us the information we need or insists on swearing an affidavit or delivering a List of Documents which we know is imperfect or which we have every reason to think is imperfect, then our proper course is to withdraw.
Similarly, we cannot counsel our client to ‘clean up’ their social media pages where it is likely legal proceedings may be commenced in relation to which such material may be required. Nor should we participate in a stratagem designed to delete documents or information from such pages in circumstances where litigation may be contemplated in relation to which the information contained in such social media may be required. The attorney in Lester ignored the fundamental responsibility we owe to the administration of justice and paid a heavy financial price for doing so.
1 [1940] AC 282, 322.
2 83 Va. Cir. 308 (2011).