Destroy evidence? Prepare to be found in contempt
A UK solicitor has been ordered to pay a substantial fine and costs after being found guilty of contempt of court after he told a client to “burn” an app used for confidential communications.
The contempt proceedings arose out of an action over misuse of confidential information and breach of contract between Ocado and three defendants. That action was settled in 2021.
However, Ocado pursued a criminal contempt action against Mr Raymond McKeeve, at the time a partner of law firm Jones Day. Ocado argued that he intentionally interfered with the due administration of justice, by (1) intentionally causing the deletion of documentary materials relevant to the underlying action brought by Ocado, in support of which a search order had been obtained and (2) intentionally taking steps which thwarted the purpose of the search order.
Mr McKeeve, a private equity specialist who was advising some of the defendants on setting up a rival company to Ocado, admitted that he sent a message on the 3CX App, which had been installed on his phone, saying either “burn it” or “burn all”. The message was sent on 4 July 2019, when a search order was being carried out as part of the Ocado litigation. As a result of the message, the 3CX app was deleted and its contents irretrievably destroyed.
In a judgment in August 2022, Mr Justice Adam Johnson found that Mr McKeeve was liable on one of four grounds, namely intentionally interfering with the due administration of justice by intentionally causing the destruction of documentary material stored on electronic data storage devices.
The judge said this ground was concerned with “the purpose of requiring a search to be conducted of electronically stored data, including in particular data stored on, or accessible from, mobile telephones or other devices. Whatever his underlying motive, Mr McKeeve acted with the precise intention of preventing that from happening.”
He added that Mr McKeeve had accepted that his intention was to prevent the 3CX App being searched: “Mr McKeeve knew that the purpose of the Search Order was to require a search to be carried out of the 3CX App, and indeed his own stated intention was to prevent it being searched. He thus interfered with the due administration of justice, as reflected in the Search Order.”
The judge found Mr McKeeve was not liable on the other three grounds, which included intentionally interfering with the due administration of justice by intentionally causing the destruction of: documentary material relevant to Ocado’s claim; confidential information as defined in the search order; and documents that constituted a listed item in the search order.
On these claims, the judge was not satisfied beyond reasonable doubt that Mr McKeeve had the knowledge and/or intention required by the law.
Consequences of the decision
A further judgment on sanctions and costs was published on 4 October 2022.
The judge noted that Mr McKeeve had accepted the contents of the August 2022 judgment, including the finding of contempt of court, and had given evidence about the effect on him professionally and personally. He no longer works for Jones Day.
The judge decided that a custodial sentence was not warranted, but he ordered a “substantial fine” of £25,000. He also ordered Mr McKeeve to pay most of Ocado’s costs, amounting to over £600,000. Mr McKeeve has applied to pay them in instalments.
This case is a salutary warning of the dangers that can arise in the heat of big disputes. Mr McKeeve’s actions on 4 July 2019 (chronicled in forensic detail by the judge) were unwise, reckless and criminal. It is possible that as a deal lawyer, rather than a litigator, and in the heat of the moment he did not consider the serious implications of his action and unfortunately he is now paying the price.
To find out more about the issues raised in this blog contact Rosie Burbidge, Intellectual Property Partner at Gunnercooke LLP in London - firstname.lastname@example.org