Playing Cat and Mouse with Preservation Orders

Catalyst Capital Group Inc. v. Moyse is a good example of getting what you ask for. In this case, the Ontario Superior Court considered whether the defendant, Moyse, who deleted his Internet browsing history from his personal computer in the face of a preservation order, had intentionally destroyed relevant evidence (also called spoliation).

In Moyse, the defendant had allegedly shared Catalyst’s (his former employer) confidential information with his subsequent employer, West Face.  Before turning his personal computer over to his lawyer pursuant to the order requiring him to maintain records relevant to the litigation, Moyse employed the use of deletion tools to wipe his Internet browsing history.  He asserted that his browsing history was irrelevant personal information. Catalyst argued that Moyse’s intentional deletion of his Internet browsing history was evidence of spoliation.

Moyse testified he was only trying to protect his personal information, and that the preservation order did not require that he maintain his computer in ‘as is’ condition. The court accepted Moyse’s explanation and found that based on the facts of the case there was insufficient evidence to merit a finding of spoliation.
Catalyst could have saved considerable time and expense with a clearly drafted preservation order. Had the order provided that Moyse turn over his computer in the same condition as it was on the date the order was made, either a) the forensic experts would have been easily able to determine whether the computer contained any incriminating information, b) Moyse would have nevertheless deleted the files thus destroying his credibility, or c) the forensic experts would have discovered that there was in fact nothing nefarious on Moyse’s personal computer, and the entire debate would have been avoided.

​In the cat and mouse game of litigation, precision matters.   If you are going to the effort of getting a preservation order, make sure that there is no room for interpretation.  In this case, if Catalyst had properly baited the trap, they may well have caught Moyse.