Court Says Deleting Browser History To 'Avoid Embarrassment' Isn't Destruction Of Evidence

A court order demanding the retention of digital evidence morphed into the worst-case scenario for a defendant in a Canadian "breach of confidence" lawsuit. Even though the defendant's actions were ultimately deemed lawful, the intended effect of the questioned action was undone by the judicial discussion of them.

Melissa Caldwell of CyberLex has more details on the events leading up to this unfortunate conclusion:

The underlying action arose after Moyse, who had been employed by Catalyst, left the company to take a position with a competing investment management firm. Catalyst brought an action for breach of confidence for the alleged misuse of confidential information regarding a target company in which Catalyst had unsuccessfully attempted to acquire an interest. Subsequently, the target company was successfully acquire by Catalyst's competitor, and Catalyst claimed Moyse had delivered Catalyst's confidential information to its competitor and its competitor had used it in the successful acquisition.

After Moyse had joined the competitor company and before this action was commenced, Catalyst obtained a consent order requiring Moyse and the competitor company to preserve and maintain all records in their possession, power or control "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 required specifically that Moyse turn over his computer to counsel for forensic imaging of the data stored on it.

However, before turning his personal computer over to his lawyer, Moyse deleted his personal browsing history and purchased software entitled "RegCleanPro" to further delete registry information.

Catalyst claimed Moyse had destroyed evidence by deleting his browser history. Moyse countered that the preservation order did not specify his computer needed to be kept in "as is" condition -- free from any alterations until it could be imaged. He also pointed out that Catalyst was interested in company documents, rather than his personal internet use. And he had a very good reason for deleting his browser history, seeing as the contents of his computer were about to be made public -- a reason the court sympathized with [PDF] when considering the implications of the preservation order.

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 fianci(C)e. He did not want his internet searching to become part of the public record.

The court found that the documents central to the lawsuit were not affected by Moyse's actions. They were available through Dropbox accounts and forensic examiners found no evidence Moyse had ever transferred the documents to his personal Dropbox account. In addition, they found the last time he accessed his account predated his work on the disputed documents.

As for Moyse, his attempt to keep his access of porn sites under wraps backfired. He may have been cleared of evidence spoliation accusations, but his personal web browsing habits still made it into the public record -- albeit without the excruciating level of detail that would have been present if he hadn't thought to scrub his browsing history before turning over the computer.