A case heard by the Supreme Court of New South Wales recently
has confirmed the rights of parties that are involved in a dispute
to challenge the authenticity of emails – particularly
when the email/s in question are being relied upon to build a case
by one side.
Background
In this matter, NAK Australia Pty Ltd (NAK) sued Starkey
Consulting Pty Ltd and Mr Geoff Starkey, who was at one time
engaged by NAK as its National Sales and Marketing Manager. NAK
alleged that Mr Starkey had retained confidential commercial
information from NAK, in breach of contractual restraints and
obligations of confidentiality, as a 'springboard' in order
to establish a competing business and develop a rival product.
A central issue in the dispute concerned an email, allegedly
sent by Mr Starkey to one of NAK's suppliers in Taiwan, in
which he allegedly sought to obtain the confidential information.
Mr Starkey admitted sending an email to the supplier in Taiwan but
asserted that the email, a copy of which NAK had reproduced in its
evidence, had been tampered with.
NAK Australia Pty Ltd was relying on the contents of the email
to make its case against Mr Starkey. Mr Starkey sought to obtain a
copy of the 'original' email, which NAK Australia Pty Ltd
provided in various electronic and hard copy versions, however Mr
Starkey remained unconvinced that the email had not been tampered
with.
Mr Starkey thereafter sought access to the computer from NAK
Australia Pty Ltd so as to have it inspected by an independent
computer expert to verify the authenticity of the email. The
parties were unable to agree on whether the computer, which had
been sealed and isolated by NAK Australia Pty Ltd, should be
inspected by a computer expert retained by Mr Starkey, and
furthermore, whether Mr Starkey should be present at the time of
the inspection.
Was Mr Starkey entitled to challenge the authenticity of the
email and have the computer inspected?
The Court found that it was plainly relevant that Mr
Starkey should be entitled to have the computer inspected by an
independent computer expert so as to attempt to establish whether
the email had been tampered with. The Court also found that Mr
Starkey was entitled to be present during the inspection as
"it seemed practically impossible that justice could be
done in the case while precluding him from access to the
computer".
So what are the lessons from this
case?
Firstly, if you are involved in a legal dispute and suspect that
the other party is relying on an email that has been tampered with,
you will need to access the computer from which the email was sent
so as to inspect the original email. You will of course need an
appropriately qualified computer expert to conduct the inspection
for you.
Secondly, you need to ensure that you are capable of proving the
'authenticity' of any email that YOU seek to rely upon in
the event the other party cries foul.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Specific Questions relating to this article should be addressed directly to the author.
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