The former Jones Day partner was found in contempt of court last year for intentionally causing the destruction of an encrypted communication system despite there being a court order in place to preserve the evidence. The e-data belonged to McKeeve’s client, Today Development Partners, which was set up by a co-founder of Ocado. There was at the time an ongoing legal dispute between Ocado and the former co-founder over alleged misuse of confidential information, which has since been settled.
McKeeve told the court that he panicked and instructed an IT manager to ‘burn it’.
Sentencing McKeeve this week, Mr Justice Adam Johnson called McKeeve’s conduct a ‘spontaneous act of colossal stupidity’.
Johnson J said: ‘This is plainly a serious matter but not of such character as to warrant a custodial sentence.’
Deborah Ruff, head of international arbitration at Pillsbury Winthrop Shaw Pittman, said: ‘While the circumstances of this case were unusual—criminal proceedings and relating to a search order—and dramatic, it is a salutary reminder of the more mundane disclosure processes which are part of most litigation in England and Wales as well as in other common law jurisdictions.
‘Mr McKeeve will be breathing a huge sigh of relief that a custodial sentence wasn’t handed down, despite the judge having felt a “strong initial impulse towards” imposing one. This case should serve as a reminder to all lawyers of the importance of complying with—and urging their clients to have in place and comply with—document retention policies, as well as regulations and legislation governing document retention.
‘Businesses must also have suitable and robust document creation, circulation and retention policies in place.
‘In the age of emails and instant messaging services, it is very easy to say things with no thought of them being read and used in a court of law. It’s equally easy to forget the duty to preserve them when a dispute is in prospect or underway or the penalties and reputational damage if they are destroyed or not disclosed when this is obligatory. Doing so could have very serious consequences.’
