WhatsApp eDiscovery – Cases Where WhatsApp Chats Were Used as Evidence in Court

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The use of WhatsApp as their primary communication tool by employees has grown rampant in today’s fast-paced business world. Fast, secure, and robust – this app is an ideal messaging tool for employees aiming to collaborate more closely with their colleagues and clients. But while many employees would consider the messages they sent on WhatsApp as safe from scrutiny, the opposite is true – especially if they used the app in a way that breaches any company’s policies and regulatory standards it follows.

The issue of whether WhatsApp can be used in court has recently arisen, instigating businesses to consider archiving WhatsApp conversations of their employees in case they get involved in a workplace lawsuit. With a WhatsApp eDiscovery tool, such tedious task of retaining WhatsApp chats of all employees can be made manageable and efficient.

Before investing in a WhatsApp eDiscovery solution, it is first important for businesses to know the instances where WhatsApp messages can be used as evidence. To help out, we detail below several recent cases where WhatsApp chats were used as evidence in UK courts.

WhatsApp eDiscovery – Cases Where WhatsApp Chats Was Used as Evidence in Court

  1. Forse v Secarma Ltd

In this case, the claimants (Secarma Ltd) accused the defendants, who were IT consultants for the claimants before the case, with deliberately trying to poach key employees on a large scale. When the claim was issued there had been 28 resignations, which represented almost half of the workforce of the claimants. According to the claimants, the intention of pirating the key employees was to have them join a rival business, which was intending to set up its pen testing service in competition with the claimants.

The claimant’s main evidence was in the form of WhatsApp messages between a Managing Director of Secarma and former colleague, who had already moved to the new employer.A group chat named “Order of the Phoenix” was found, and pseudonyms were used to disguise the conversations as about a bowling championship. The twist, however, was that the members included in the discussion their intention to delete the contents of the messages due to the potential “legal consequences due to the non-poaching clauses.”

In this case, the WhatsApp messages were sufficiently damning and provided sufficient evidence of prospects of success at trial, making it key to the interim injunction stage.

  1. Wells and Solari v PNC Global Logistics

In March 2019, Paul Wells and Roberto Solari, former company executives at PNC Global Logistics, were sacked by their former bosses after the latter found that the two sent pornographic material and degrading comments about female colleagues through WhatsApp.

The two men sued PNC, claiming the real reason for them being sacked was to deprive them of company shares they valued at £150,000 each.

However, Judge Jonathan Simpkiss ruled after a trial that the sackings were justified.

He said the activities of the WhatsApp group, discovered after another employee handed in an old work phone, would also have amounted to gross misconduct and were “wholly unacceptable.”

“In a modern office environment, this is not banter but wholly unacceptable, particularly when commenting on female colleagues, and this is not something that a senior manager should be part of, nor condone or permit.” Judge Simpkiss said.

  1. Case v Tai Tarian

 In 2018, Darren Case, a housing officer at Tai Tarian, a social housing provider in Wales, was sacked by his former bosses after he set up a WhatsApp group to write abusive words directed to one of her female colleagues.

The WhatsApp group, entitled “Wolfpack” – a nod to the movie The Hangover – was initially arranged by Mr. Case to communicate with a colleague who was off sick, the tribunal heard. The tribunal also found that Case instructed others within the group that the said colleague should not be added into the group chat.

He was found guilty of gross misconduct and at a tribunal hearing employment. Judge Rhian Brace said that dismissal was a reasonable response.In her newly published judgment, Judge Brace said it was fair to conclude that Mr. Case had harassed and bullied the colleague even though she had been unaware of it at the time.

How to Use WhatsApp as Evidence in Court?

To make WhatsApp chats stronger as evidence, it is wise for businesses to retain the services of experts in capturing and retaining WhatsApp chats, calls, and deletions, including text, multimedia communication, and files. Using a screenshot of WhatsApp messages is not sufficient, so having an archive of the actual conversations and their metadata is crucial to ensure their admissibility in the court.

TeleMessage’s WhatsApp Capture is a unique platform tailor-made to solve compliance and regulation issues by allowing firms to capture and archive WhatsApp messages. This platform works exactly like the standard WhatsApp application, ensuring that your employees will still be able to send work-related communications easily and quickly.

The benefits of using WhatsApp Capture in your business include:

  • Archive all WhatsApp communications
  • Use WhatsApp to communicate with customers, employees, and stakeholders
  • Search, track and retrieve WhatsApp messages in the corporate archive
  • Deposit WhatsApp messages with any email archiving vendor
  • Full administration and reporting

The TeleMessage WhatsApp Capture is the latest addition to our mobile archiving products that securely capture content from mobile carriers and mobile devices for a variety of ownership models (BYOD, CYOD, and employer-issued). With our multiple archiving methods, you can always find the right tools or blend for your requirements:

TeleMessage offers cross-carrier and international mobile text & calls archiving for corporate and BYOD phones. Visit our website today at www.telemessage.com to try our mobile archiving products.

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