Deleting Browser History to Avoid Embarrassment Isn’t Destruction of Evidence

A Canadian judge has ruled that a defendant who deleted his browser history, while in full knowledge that his computer was set to be seized by authorities, was not guilty of destruction of evidence since he only did so to stop his girlfriend from seeing the sites he had been visiting.

In Catalyst Capital Group Inc v Moyse, the Ontario Superior Court decided that Brandon Moyse – who is accused of breach of confidence by the plaintiff, his former employer, in the lawsuit – did not intentionally destroy evidence, despite a preservation order, and was instead saving himself from the embarrassment of his partner (now his fiancée) being exposed to his browsing history, which was set to be made part of the public record.

Melissa Caldwell, who covered the case for CyberLex, explains the background to the case:

“The underlying action arose after Moyse, who had been employed by Catalyst, left the company to take a position with a competing investment management firm. Catalyst brought an action for breach of confidence for the alleged misuse of confidential information regarding a target company in which Catalyst had unsuccessfully attempted to acquire an interest. Subsequently, the target company was successfully acquire by Catalyst’s competitor, and Catalyst claimed Moyse had delivered Catalyst’s confidential information to its competitor and its competitor had used it in the successful acquisition.

After Moyse had joined the competitor company and before this action was commenced, Catalyst obtained a consent order requiring Moyse and the competitor company to preserve and maintain all records in their possession, power or control “relating to Catalyst and/or related to their activities since March 27, 2014 and/or related to or was relevant to any of the matters raised in the Catalyst action.” The order required specifically that Moyse turn over his computer to counsel for forensic imaging of the data stored on it.

However, before turning his personal computer over to his lawyer, Moyse deleted his personal browsing history and purchased software entitled “RegCleanPro” to further delete registry information.”

The court was sympathetic towards Moyse’s explanation for why he deleted his internet browsing history despite the preservation order – Moyse claimed to have cleaned his computer to hide his frequentation of “adult entertainment” sites – especially since evidence relevant to the case, found in his Dropbox folder was intact.

The court ruled:

“I accept Mr. Moyse’s evidence as to why he deleted his internet browsing history. There is no evidence to contradict his statements as to why he deleted his internet browsing history. He was a young man at the time who had a very close relationship with his girlfriend who is now his fiancée. He did not want his internet searching to become part of the public record.”

Image courtesy of MyIdentityDoctor.