Australia: Challenging the authenticity of email communications in court

Your right to challenge authenticity...

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.