Marlton v Tectronix UK Holdings

Documents containing information relevant to the receipt or non-receipt of electronic communications may fall within standard disclosure. This includes material stored on computers, databases, e-mail systems and related records, where it may establish the relevant date or event. The court may order focused inspection of such material where ordinary disclosure has not adequately resolved the issue. Any inspection of a computer containing potentially privileged material should be undertaken by an independent expert, with appropriate safeguards for privilege and confidentiality. The scope of the order should be proportionate to the issue requiring determination.

This was a first-instance application by Tectronix UK Holdings PLC in an action by Antony Marlton for approximately £590,000, said to be deferred consideration under a share sale agreement. The payment dispute depended, or might depend, on whether completion accounts had been delivered within the contractual 180-day period.

Tectronix sought inspection of the claimant’s computer hard disks, backups and relevant mail server material to establish when completion accounts sent by e-mail had been received. The claimant’s e-mail systems and relevant records were located in Belgium, and the disclosure provided had not resolved the issue. The application raised the proper scope of disclosure and whether inspection or expert involvement was justified.

1. The application was allowed to the extent that focused disclosure and inspection of relevant electronic material were appropriate. The order was confined to material in the claimant’s possession, custody or control relating to his Belgian e-mail address.

2. Under standard disclosure, documents include material on which a party relies, material which adversely affects its own case or another party’s case, and material which supports another party’s case. The definition of a document is wide. Information recorded in computer databases, word-processing files and e-mail systems may therefore be disclosable under Civil Procedure Rules 1998, rule 31.4, where it is capable of establishing a relevant fact.

3. Because the dispute concerned the date on which e-mails containing the completion accounts were received, documents tending to show receipt or non-receipt were potentially disclosable. The claimant’s existing disclosure was inadequate on the material before the court.

4. The court should exercise caution when assessing evidence concerning complex computer systems. Expert assistance may be required. Any inspection of the claimant’s hard disk had to be undertaken by an independent expert, since the material appeared to include substantial privileged material and direct access by a person associated with the defendant would be inappropriate.

5. The precise form of inspection, the identity of the expert and the safeguards for privileged material were left to be determined after further submissions.