Finding dirt in the cloud?

A recent Supreme Court decision has ‘opened the door’ to litigants seeking discovery of supposedly ‘deleted’ electronic material in the Cloud.

The decision concerned a dispute about discovery in a defamation proceeding. It all turned on seeking access to text messages which had been deleted from the plaintiff’s i-Phone. The plaintiff said his i-Phone had been damaged, back-ups deleted, and was therefore unable to discover relevant text messages. As no backed up copies of the text messages were available – on his personal computer or Apple iCloud account – the plaintiff said he could do no more to provide the text messages.

The defendant argued that access to the deleted records could be obtained for the bargain basement price of $29.95, using software called Wondershare Dr FoneTM. The software enables a person to access data which has otherwise been deleted from their Apple iCloud account.

The plaintiff argued that requiring him to purchase software to retrieve data was unreasonable, and went over and above his discovery obligations. The Court disagreed, observing that the software would allow the text messages to be obtained with minimum inconvenience and expense. Accordingly, it ordered the defendant to purchase the software for the plaintiff, so that he could provide further discovery.

We’re likely to see more discovery applications of this type, given the widespread use of Cloud storage, and how easily and cheaply archives in the Cloud can now be accessed.

A full copy of the decision can be found at the following link: Hanks v Johnston (No 3) [2016] VSC 629

DLA Piper acted for the defendant in the proceeding.