Recovery of "Deleted" Email

[Clive D.W. Feather]

Peter Sommer said:
> There may also be an opportunity to obtain the emails, or see if they 
> exist, via a Norwich Pharmacal Order. However enforcement might be 
> tricky of the email provider does not have a presence in UK 
> jurisdiction. And in any event you would also need to show that the 
> email provider was somehow a participant, albeit innocent, in the 
> circumstances surrounding the litigation. (Can be done in piracy cases 
> where IP addresses are sought from an ISP as the ISP is facilitating the 
> publication/distribution; rather more difficult with pure email)

Huh?

The ISP is not facilitating the publication/distribution, at least not in any
sense implying reponsibility. ISP policy has been not to contest a Norwich
Pharmacal order for identity; there is no admission of any involvement
other than completely innocent technical activity. They are, however, a
party where "without certain action on their part the infringements could
never have been committed" (to quote Lord Reith) and thus a valid subject
for such an order. The distinction is against "a person who las no other
connection with the wrong than that he was a spectator or has some document
relating to it in his possession"; discovery can't be ordered against such
a person.

In Ian's question, the webmail operator surely comes into the first class
and not the second.

However, I don't think the precedent in Norwich Pharmacal stretches that
far. In paragraph 100 Lord Cross writes "In the first place, there is a
clear distinction between simply asking for the name of a person whom you
wish to make a defendant and asking for evidence. This case has nothing to
do with the collection of evidence.". In other words (in my opinion) a
Norwich Pharamcal order can *only* be for the disclosure of identity, and
nothing more.

By the way:

> In the UK we use the word "disclosure" rather than the US "discovery".

The House of Lords used both terms.

<http://www.bailii.org/uk/cases/UKHL/1973/6.html>

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Clive D.W. Feather          | If you lie to the compiler,
Email: clive at davros.org     | it will get its revenge.
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